1. The decision of the respondent is set aside.
2. The Tribunal directs the respondent to give an Assessment Notice to the applicant.

1. In 1975, when FNI was aged 31 years he was convicted and sentenced for the offence of "aggravated assault of a sexual nature" under section 344 of the Criminal Code Act 1899 (Qld).
2. Fast forward 40 years. FNI made application to the respondent for a Working with Children Assessment Notice. The application was categorised as a category C application under section 14(1)(c) of the Working with Children Act 2005 (the Act) and was refused by the respondent. FNI subsequently sought a review from this Tribunal. The matter proceeded before me on 9 and 31 May 2016. Written submissions followed in late July 2016.
3. I heard evidence for the respondent from Gwendolyn Ellemor who is the Manager Service Development and Design, Child Protection Manager with the Department of Health and Human Services (DHHS). She gave evidence, in which she described DHHS child protection processes and procedures.
4. I also heard evidence from FNI, his wife and (by telephone), psychologist Dr Aleksandra Belofastov.
5. In a review of a decision to give a Negative Notice on a category C application, section 26C of the Act requires that I determine whether, in the particular circumstances, it would be appropriate to refuse to give an Assessment Notice having regard to any matters to which the respondent must have regard under section 14(3) of the Act.
6. I must further determine under section 26C(2) of the Act, that it is appropriate to refuse to give an Assessment Notice unless satisfied that the reasonable person would allow his or her child to have unsupervised direct contact with FNI in any type of child-related work. Finally, I must refuse to give an Assessment Notice under section 26C(3) of the Act unless satisfied that it is in the public interest to give the Assessment Notice. I turn now to a consideration of those factors.
7. I turn first then to discussion of section 14(3) of the Act

(a) the nature and gravity of the conduct and its relevance to child-related work

1. In February 2015, FNI took the 15-year-old daughter of his then partner away overnight on a shooting trip. Queensland police provided the Working with Children Unit with the following brief summary of the offending.

On Saturday the third February, 1975, the defendant and the complainant child drove to Mount Fox for the purpose of shooting and prior to leaving their home, arrangements were made for the defendant and the complainant to stay overnight at Mount Fox.

At approximately 7 PM... After finishing the meal, the complainant and the defendant retired to their respective beds situated on the rear of the defendant's motor vehicle.

Prior to retiring FNI consumed a quantity of alcohol and whilst the complainant child was attempting to sleep, FNI placed his hand down the victim's top, fondling her breast. The victim objected and he then put his hand down the front of the shorts she was wearing and placed his hand on her pubic hair. The victim objected again. After being rejected the second occasion he retired to his own swag and went to sleep.

The following morning the victim advised her mother of the incident, and on the afternoon of the 15 February 1975, FNI was questioned in connection with the matter and he admitted the aggravated assault in the manner outlined. His only explanation was that he became excited after consuming the liquor and he had attempted to induce the complainant child into a sexual relationship but had been rebuffed.

1. Offending of this nature, is highly relevant to child-related work. The very purpose of the Act is to assist in protecting children from sexual or physical harm by ensuring that people who work with or care for them are subject to a screening process.
2. Sexualised offending against a child is always serious. There are a number of aspects to the offending which rendered it particularly concerning.
3. The child had been entrusted to FNI's sole care, supervision and control at the time of the offending. There were no other adults present.
4. The offending was opportunistic.
5. The child had to resist FNI's advances twice before he desisted.
6. At the time of the offending, FNI demonstrated very limited insight into the inappropriateness of attempting to involve a child in a sexual relationship.
7. FNI in his evidence before me, said that he did not remember much of the incident itself. He said "at the time I was a horrible, nasty, drunk I suppose is the best way to describe me. I have little - very little memory of the actual incident itself but I do accept that it happened".
8. FNI accepted the offending was serious and relevant to child-related work, it having been committed against a child.

(b) The period of time since the applicant engaged in the conduct

1. It is over 40 years since FNI engaged in the conduct. On any reckoning this is a significant period of time.
2. FNI has not been charged with, or convicted of, any further sexually-related offences.
3. Such a lengthy period of time without similar re-offending will frequently give great confidence that there will not be a repeat of the conduct.
4. There were however two areas of further concern raised in this case.
5. The first matter arose because FNI raised an incident wherein the same child, (who was 14/15 at the time), was walking around topless and he "flicked her boob and told her to put some clothes on".
6. There is no evidence about this matter other than that volunteered by FNI to this Tribunal, the Working with Children Unit and DHHS. When asked about the triggering offence, FNI has repeatedly described "the breast flick" incident. This was clearly not the triggering offence but an entirely separate incident.
7. It is likely that the incident occurred, although FNI was never charged over it. It may not have been sexualised touching. Not all touching of a child is sexual in its nature.
8. In any event, it occurred many years ago within the same time frame as the triggering offence and was by comparison much less serious. I do not consider in this context that it takes the matter any further, (but will return to the incident in due course as it was submitted by the respondent that in referring to this incident as the triggering offence, FNI sought to minimalize his offending).
9. The second matter concerns issues arising out of material provided by the DHHS and requires more detailed analysis.
10. It is common in these type of matters for the respondent to seek access to material held by the DHHS in relation to an applicant. It is a sensible course of action. The Tribunal is required under the Act to make a determination as to whether a given applicant poses an unjustifiable risk to the safety of children. In order to make such a decision, the Tribunal needs to be equipped with all relevant information. It will sometimes be immediately clear from material received that there are real and substantive concerns about the safety and welfare of a child or children. On other occasions, the Tribunal and parties are left to grapple with less clear, disputed material.
11. Such was the state of material that was available in this case.
12. The parties spent some time addressing me on the admissibility and weight I should attach to the material.
13. Section 98 of the Victorian Civil and Administrative Tribunal Act 1998 makes it clear that this Tribunal is not bound by the rules of evidence, except to the extent that it adopts those rules. The Tribunal may inform itself on any matter as it sees fit.
14. The Tribunal will frequently, particularly in a protective environment, allow into evidence material, which may not have been admissible in a Court. It will then accord such weight to the material as it sees fit in the circumstances.
15. The material obtained from the DHHS was in this case potentially very relevant, making reference to at least two further allegations of sexual assault, together with other serious matters.
16. Given that FNI has never been charged with and therefore given the opportunity to defend such allegations, he was placed in a somewhat invidious position; made all the more problematic by virtue of the material being heavily redacted. Because of restrictions under the Children, Youth and Families Act 2005 (the CYF Act), the author(s) of the material was not disclosed, nor the identity of the reporter/notifier. Accordingly, the respondent only called very general evidence, about the manner in which the DHHS collates information and conducts investigations. Nevertheless, in the context of this Act, the paramount consideration is the protection of children, rather than FNI's personal interests.
17. FNI accordingly gave evidence in relation to the issues raised. I accept that it was trying for him to do so. He was essentially defending himself against blanket assertions contained in the DHHS material.
18. Much of the material contained demonstrable errors. Some of it was simply wrong.
19. Ultimately, in closing submissions, the respondent made it clear that the Secretary did not seek to rely on all of it. In light of FNI's evidence and the fact that no further action was taken in relation to the serious allegations, the respondent would have been hard pressed to do so. Presumably child protection workers also did not identify a need for further investigation of some of the allegations or their enquiries led nowhere.
20. I do not intend to replay the evidence given by FNI in relation to material which was ultimately, not relied upon. I make it clear however that I do not rely, and the respondent does not suggest that I should rely, on any material in the DHHS material suggesting that:

FNI and his current wife separated in around December 2014; that there have been family violence orders made against FNI or family violence incidents in which he was the perpetrator; that he is a member of an outlaw motorcycle gang; that he provided information to the police in a murder investigation; that he has sexually assaulted his daughter and/or granddaughter or a four-year-old child; that he has breached parole; that he encouraged a child to play with drug addicted neighbours; that he sought custody of his granddaughter or that he did not cooperate with child protection

1. This is a significant swathe of ultimately unreliable material contained within the DHHS materials. It demonstrates the great caution with which heavily redacted material of largely unknown authorship should be approached by this Tribunal.
2. I am mindful of similar comments having been made by Magistrate Power in DOHS v Ms B and Mr G [2008] VChC1 when discussing final reports:

Sometimes I make a decision without accepting all of the material that is contained in the Department's reports. Sometimes it appears wrong or irrelevant. Sometimes it is obviously wrong. Sometimes not all the contents of reports are accepted by the Court because objectively they seem improbable... It is not uncommon for Departmental reports to be written to achieve an outcome and for material which does not support that outcome to be omitted from reports.

1. I will turn again in due course to the DHHS material, but for the purposes of discussion of section 14(3)(b) I am satisfied that there has been no further offending of a like manner, for 40 years.

(c) & (d) Whether a finding of guilt, conviction was recorded for the charges and sentence imposed for the offence

1. FNI pleaded and was found guilty of the triggering offence. He was convicted and sentenced to 6 months imprisonment. The sentence reflected the serious nature of the offending. It also no doubt took into account FNI's criminal history, which by that time had become extensive, (although with nothing of a like nature).

(e) The age of the applicant and of any victim at the time the applicant engaged in the conduct

1. FNI was aged 31 and his victim was aged 15. The age differential and consequent power imbalance was great. It is clear that at the time of the offending, FNI lacked any insight into his offending and the need to protect children from sexual harm.
2. The respondent expressed concern that FNI stated that he did not have a parental relationship with the victim. I accepted FNI's evidence that in saying this he did not mean to downplay in any way the fact that he was in a position of care, supervision or authority in relation to the child. I accept that he was clarifying the relationship that he had with the child's mother at the time and stressing that there was not a further aggravating feature of being in a parental relationship. This was explicable because of the complex relationship history wherein he dated the child's mother before rekindling the relationship some years later and marrying her.

(f) Whether or not the conduct has been decriminalised or has ceased to be subject to disciplinary charges

(g) The applicant's behaviour since engaged in the conduct

1. I was invited by the respondent to find that FNI minimalized his offending.
2. The respondent submitted that I should be concerned that FNI has given various accounts of his offending to different organisations.
3. As previously discussed, FNI has variously described the triggering offence to the Working with Children Unit, the DHHS and others as "flicking the victim on the breast" when she walked past on one occasion. Under cross-examination FNI said:

Looking back, I now believe that was probably a separate incident. I accept that the major incident did occur because (the victim) to the best of my knowledge, didn't tell lies.

1. I accept that FNI has no real recollection of the triggering offence. Importantly though, FNI has at no time denied the occurrence of the triggering offence. To the contrary, he has repeatedly emphasised that if the victim said the incident occurred, then it must have.
2. It is impossible to now say how or why FNI has told so many different people about the "breast flick" incident.
3. As previously discussed, I accepted that at the time of the offending FNI was living in something of an alcoholic blur and that his recall of many factual matters from that period is hazy. I ultimately accepted that this was a genuine error, perhaps brought about through alcohol, shame and embarrassment or any number of other factors in his complex background. He may have thought even at the time that this was what he was sentenced for. He has certainly appeared to think so for many years.
4. He now clearly understands that it was not. He accepts that the facts as described in the police materials were the facts he was sentenced for.
5. I did not consider his lack of memory to be a dishonest or manipulative minimisation of his offending.
6. In his evidence before me FNI appeared to do his best to answer questions.
7. He did not blame alcohol for his offences. He accepted his own culpability, but endeavoured to contextualise his life at the time.
8. I accepted the evidence given by FNI that he was disgusted that he had committed the offence of "aggravated assault of a sexual nature".
9. The respondent contended that FNI denied having committed a sexual offence to DHHS on 29 June 2004. He was recorded as saying to protective workers that he had not been charged with sexual assault but had been charged with an aggravated assault. It is impossible to now know his precise words. Even if FNI did say these precise words, that would not necessarily lead to a finding that FNI was attempting to hide his offending. The offence was an aggravated assault of a sexual nature. FNI did advise the workers that he offended against a child and that he was imprisoned for the offending. It was important that he alerted them to this fact. It is also necessary to remember that when he was being spoken to the offending had occurred thirty years previously. The most rudimentary enquiries made by DHHS after FNI's revelations would have shown the full details of the then 30-year-old offending.
10. The respondent made reference to the fact that FNI stated to the Working with Children Unit that he believes that at the time he received very bad legal advice to plead guilty. Whether or not this is the case, FNI made full admissions to police, he did plead guilty and has always accepted that whatever the victim said occurred did occur. He was adamant on this point in his evidence before me. He was also adamant that the offending was completely unacceptable. I did not consider that his comments about the legal advice he received led to a conclusion of a lack of insight.
11. The respondent placed significant importance on the fact that a supervision order made in the Children's Court on 8 April 2015, (now apparently lapsed) included a condition that FNI must not have any contact with his step-granddaughter. The respondent emphasised that not only was DHHS satisfied, but that the Magistrate in the Children's Court was also satisfied of the need for the order and condition.
12. It will frequently be of concern to this Tribunal to find that such an order has been made. I was not however satisfied in the circumstances of this case that it was fatal to FNI's application for an Assessment Notice.
13. I do not know the basis for the making of the order. All material relevant to the making of the order was redacted. Section 552 of the CYF Act precludes a copy of the court report being made available to the parties as part of this proceeding.
14. Whilst I would not go as far as was submitted on behalf of FNI, to assume that the Court process was tainted by incorrect and unsubstantiated material contained within the DHHS materials, there was nevertheless nothing in the balance of the DHHS materials to even hint at the reasons for the making of the order other than the emphasis placed on the triggering offence. The material often disclosed little more than a train of thought. It was sometimes speculative. Conversely there was positive material about the subject child and her previous interactions with FNI, before the contact stopped.
15. FNI has recently remarried and I accept happily so. His wife, the grandmother of the subject child, gave evidence that the child missed her involvement with FNI.
16. There seemed to be a prejudicial thread in the DHHS materials based on the fact that FNI's wife speaks little English. I had the benefit however of hearing her give evidence through an interpreter. The marriage may be, to outside observers, a little unconventional. However, the passion and affection she demonstrated when giving evidence on behalf of her husband, left me in no doubt it was a marriage of mutual respect and affection. The intervention of the DHHS may well have placed unforeseen and unwanted pressure on the marriage, however I accepted that it had not in any way diminished the couple's mutual support of each other or that I should not accept her evidence.
17. Turning to other matters, FNI received a $150 fine for handle/receive/ retain stolen goods on 27 April 1983. He gave evidence that this related to the delivery of some sunroofs that he was transporting on behalf of another person. He was intercepted by police and the sunroofs were found to be stolen. I did not consider this offending, which also occurred over thirty years ago to be relevant to these proceedings.
18. I accept that once FNI moved to Melbourne in 1976, his life took a turn for the better as he began the process of raising his own children. I accept that he endeavoured to put his antisocial behaviour behind him and significantly reduced his alcohol intake.
19. I accept that the second half of FNI's life has been significantly more productive. He has worked in a variety of roles, raised children, been involved in reasonably stable long-term relationships and significantly, for the purposes of this application, largely kept away from the attention of the Authorities.
20. The respondent contacted a number of potential character witnesses for FNI and was critical of the fact that he had not told them the full details of his offending. I considered it to be fully explicable, given the passage of time and his greatly changed circumstances, that FNI had chosen not to tell them the details of his previous offending.

(h) the likelihood of future threat to a child caused by the applicant

1. FNI is now aged 73. It is over forty years since he committed the offence. He has not committed any further offences of a like nature.
2. I accepted the conclusions of Dr Aleksandra Belofastov in her extremely comprehensive report dated 28 March 2016 and confirmed in her evidence before me, that FNI's future risk of sexual violence toward children in the community was low.
3. Dr Belofastov administered a number of risk assessments, both structured professional judgement schemes and actuarial measures, including the static-99R, the RSVP (risk for sexual violence protocol) and the Structured Assessment of Protective Factors for Violence Risk (SAPROF)
4. The low risk assessment highlighted the lack of evidence of chronicity of sexual violence, the recent nonsexual criminality, the currently stable marital relationship, expressed attitudes that do not support sexual violence toward children, restricted alcohol consumption over many years and otherwise stable mental health, evidence of future plans and goals and positive relationships with at least one of his children.
5. Where there has been any history of sexual offending against children, great caution must precede any conclusion that an individual does not pose a future threat to a child. The test is not 'is no risk'. The test is the likelihood of future threat. I am satisfied that the likelihood is low.
6. FNI has not participated in treatment for the offence of "aggravated assault of a sexual nature" or for his history relating to alcohol misuse. I accept that at the time of the offending it was not common for offenders to be referred to such programs. It is, in this context, to his credit that he appears to have been able to rehabilitate himself. FNI was not sure what benefits psychological counselling would have at this stage of his life. I agree that the issues that may have benefited from such intervention are long gone, in any event.
7. I have already commented on the unsatisfactory nature of the DHHS material. I ultimately place no weight on it for the purposes of determining whether or not FNI poses a future threat to a child.

(i) Any information given by the applicant in, or in relation to, the application

1. FNI had an unfortunate upbringing described by Dr Belofastov as being characterised by abandonment, neglect and exposure to violence. Having been adopted out as a baby, his adoptive mother died and he was ultimately left to fend for himself at age 14 at which time he commenced heavy alcohol drinking. He amassed a number of criminal offences and was regularly in and out of custody in the early 1960s. His circumstances have dramatically changed

(j) Any other matter that the Secretary considers relevant

1. FNI has an interesting and complex relationship history in which relationships have ceased at various times, only to be rekindled later. He has had three significant personal relationships including his current wife. Various unusual aspects of his extended family were referred to in the DHHS materials.
2. I do not propose in this decision to discuss the various permutations and combinations and unusual features of that history. To do so would reveal unavoidably the identity of FNI, without assisting in my deliberations.
3. Similar discussion around FNI's involvement with his now adult children, was of limited value.

S. 26C(2) Whether the reasonable person would allow his or her child direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any type of child related work

1. In satisfying myself that giving an Assessment Notice would not pose an unjustifiable risk to the safety of children, I must be satisfied in accordance with section 26C(2) of the Act that a reasonable person would allow his or her child to have direct contact with FNI, that was not directly supervised by another person, whilst he was engaged in any type of child-related work and that his engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.
2. I am so satisfied.
3. I consider that a reasonable person would accept that the offending was isolated and occurred many years ago when FNI was a much younger man. The reasonable person would be satisfied that FNI has changed his life around considerably. The reasonable person would conclude that he does not pose an unjustifiable risk to children.
4. The reasonable person will always be cautious about claims of redemption when considering the protection of children. The reasonable person will not, however, turn a blind eye to demonstrable rehabilitation and always deny an individual the opportunity to work with children because of an isolated incident of offending.

1. Finally I must consider whether, in all of the circumstances, it is in the public interest to give an Assessment Notice to FNI.
2. It is in the public interest for an individual who does not pose a risk to children to be able to continue with activities in the broader community that might involve children. It is in the public interest for a grandfather to engage with his grandchildren's activities. It is in the public interest for a retired senior person to have the opportunity to re-engage in his interest in steam engines, develop the hobby and become involved in a club if he wishes to do so.

1. I will set aside the decision of the respondent and direct the respondent to give an Assessment Notice to FNI.