BJV v Children's Guardian

[2016] NSWCATAD 26

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BJV v Children’s Guardian [2016] NSWCATAD 26
Hearing dates:	13 March 2015 & 14 September 2015 – Written submissions by 30 October 2015
Date of orders:	12 February 2016
Decision date:	12 February 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Mullane ADCJ, Principal Member
Decision:	(1) The decision of the Children’s Guardian of 3 June 2014 refusing the applicant a working With Children heck Clearance is confirmed.  (2) Publication or broadcast of the names or other identifying information of the applicant, or either of the persons referred to in these reasons as “V” or as the applicant’s former partner is prohibited.
Catchwords:	Working with children clearance- acquittals for past offences, - risk assessment- clearance refused.
Legislation Cited:	Child Protection (Working with Children) Act 2012; Administrative Decisions Review Act 1997
Cases Cited:	Commission For Children and Young People –v- V [2002] NSWSC 949
Category:	Principal judgment
Parties:	BJV (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: K Ginges (Applicant) R Lee (Respondent) Solicitors: Armstrong Legal (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1410333
Publication restriction:	Publication or broadcast of the names or other identifying information of the applicant, or either of the persons referred to in these reasons as ”V” or as the applicant’s former partner is prohibited.

Reasons for decision

Introduction

1. On 13 September 2011, the applicant was charged by Police for an offence of aggravated indecent assault in about June 2010 on a 21 year old woman, referred to in these reasons as “V”.

2. There was a hearing in relation to the charge on 25 January 2012 in a Local Court, and the court found the offence was not proven and dismissed the charge.

3. In 2014 the applicant applied to the Children's Guardian for a Working with Children Check Clearance to enable him to work with children.

4. When the Children's Guardian became aware of the 2010 charge of aggravated indecent assault, the Children's Guardian conducted an assessment of what risk the applicant posed for children.

5. Information was obtained from the applicant and numerous other sources for the purposes of the assessment.

6. On 19 December 2014 the Children's Guardian wrote to the applicant advising that the children’s Guardian was proposing to refuse his application. It advised him to make any further submissions before a final decision was made.

7. The solicitors for the applicant made further submissions to the Children's Guardian.

8. The Children's Guardian determined the assessment and decided to refuse the applicant a Working with Children Check Clearance.

9. The Children's Guardian wrote to the applicant on 3 June 2014 advising of the refusal.

10. This is a hearing of the applicant's application filed in the Tribunal on 20 June 2014 for a review of the decision made by the Children's Guardian refusing the clearance.

Relevant Legislative Provisions

11. Section 4 of the Child protection (Working with Children) Act 2012 (“the Act”) provides:

“The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”

12. Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in “child-related work” for purposes of the Act.

13. Section 8 requires that a worker must not engage in child-related work unless the worker holds a “Working with Children Check Clearance” of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an “interim bar”.

14. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.

15. Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work.

16. Section 12 of the Act provides that there are two classes of Working with Children Check Clearances which are:

1. Volunteer – authorising workers to engage in unpaid child-related work; and

2. Non-volunteer – authorising workers to engage in paid and unpaid child-related work.

17. Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance and requirements for the application. It provides:

13 Applications for clearances

1. A person may apply to the Children’s Guardian for a working with children check clearance.

2. An application must:

1. be in the form approved by the Children’s Guardian, and

2. be accompanied by any other information required by the Children’s Guardian, and

3. specify the class of clearance applied for.

3. The approved form must provide for the authorisation by the applicant of, and the consent by the applicant to, the following in connection with the application or any application under Part 4 and at any time while a clearance is in force:

1. the conduct of a criminal record check in respect of the applicant,

2. the disclosure of the applicant’s criminal history,

3. other inquiries about the applicant relevant to the application or clearance,

4. without limiting paragraphs (b) and (c), disclosure of information about the applicant relevant to whether the applicant may be subject to an assessment requirement.

4. The regulations may:

1. prescribe the fee payable for an application and the manner in which it is to be paid, and

2. require proof of identity to be provided by an applicant for a clearance in the manner prescribed by the regulations or approved by the Children’s Guardian.

5. An applicant may, at any time before the final determination of an application (including after receipt of notice of a proposed refusal), withdraw the application by notice in writing to the Children’s Guardian.

18. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in schedule 1 apply to the person. Para 1(1)(b) of Schedule 1 is for where proceedings have been commenced against a person for “an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult and the person is not because of those proceedings a disqualified person”. The prosecution against the Applicant was for an offence under section 61M of the Crimes Act and such offences are included in para 1(1)(e) of the Second Schedule. The Applicant was an adult at the time of the alleged offence. The proceedings did not result in the Applicant becoming a disqualified person. The proceedings were dismissed. Accordingly the assessment requirement applied to the applicant.

19. The Applicant applied to the Children’s Guardian for a Clearance and the Children’s Guardian undertook an assessment.

20. Under Section 16 of the Act the Children’s Guardian may request further information from an applicant for a clearance related an offence or other matter related to the application or clearance and may terminate an application if the applicant without reasonable excuse fails to provide such further information within 6 months of the request. The Children’s Guardian wrote to the applicant aqnd requested specified information and any other material the Applicant wished to rely upon.

21. Section 18 of the Act Provides:

18 Determination of applications for clearances

1. The Children’s Guardian must not grant a working with children check clearance to the following persons ("disqualified persons" ):

1. a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

2. a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

2. The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

3. The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

22. On 19 December 2014 the Children’s guardian wrote to the applicant under section 19 of the Act giving notice that it was proposing to refuse a clearance and offering a last opportunity for the applicant to make any further submissions. It also requested the applicant to provide details of his psychiatrist and written authorisation for the psychiatrist to provide details of his past treatment and advise whether he is still receiving treatment.

23. Section 27 is in Part 4 of the Act and provides that a person refused a Working With Children Check Clearance by the Children’s Guardian may apply to this Tribunal for a review of the decision of the Children’s Guardian. Subsection 27(4)of the Act provides : “An applicant must fully disclose to the Tribunal any matters relevant to the application.”

24. Subsection 30(1) of the Act applies to reviews. It provides:

1. The Tribunal must consider the following in determining an application under this Part:

1. the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

2. the period of time since those offences or matters occurred and the conduct of the person since they occurred,

3. the age of the person at the time the offences or matters occurred,

4. the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

6. whether the person knew, or could reasonably have known, that the victim was a child,

7. the person’s present age,

8. the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

9. the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

10. any information given by the applicant in, or in relation to, the application,

11. any other matters that the Commission considers necessary.

25. The Administrative Decisions Review Act 1997 provides the review of the decision of the Children's Guardian refusing to issue a Working with Children Check Clearance.

26. Section 63 of the Administrative Decisions Review Act 1997 applies to the review and it provides:

Determination of administrative review by Tribunal

1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

1. any relevant factual material,

2. any applicable written or unwritten law.

2. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

3. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

1. to affirm the administratively reviewable decision, or

2. to vary the administratively reviewable decision, or

3. to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

4. to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

27. The relevant section under which the applicant was charged was Section 61M of the Crimes Act 1900 which at the time provided:

1. Any person who assaults another person in circumstances of aggravation and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years.

2. Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years.

3. In this section, circumstance of aggravation" means circumstances in which:

1. The alleged offender is in the company of another person or persons, or

2. (Repealed)

3. The alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

4. The alleged victim has a serious physical disability, or

5. The alleged victim has a cognitive impairment.

The Evidence

28. The evidence before the Tribunal comprised:

1. The application filed 20 June 2014;

2. The tabulated index bundle of documents filed by the Children's Guardian on 25 July 2014;

3. Statement of the applicant dated 18 September 2014;

4. Bundle of text messages between the applicant and Belinda Bowers in the period 12 august 2012 to 9 January 2013;

5. Statement of Belinda Bowers dated 27 November 2013;

6. Statement of Belinda Bowers dated 28 November 2013;

7. Statement of Gwenda Bowers dated 1 December 2013;

8. Statement of Mary Margaret Pechacek dated 13 September 2014;

9. Street maps of Albury and suburbs;

10. Text messages between the applicant and Belinda Bowers for the period 28 January 2013 to 13 April 2013;

11. Text messages between the applicant and Belinda Bowers for the period March 2012 to September 2013;

12. Text messages between the applicant and Belinda Bowers for the period 28 January 2013 to 3 February 2013;

13. Emails between the applicant and Belinda Bowers for the period 6 – 8 February 2013;

14. Emails from Belinda Bowers to the applicant dated 17 January 2012, including poetry;

15. Text messages between the applicant and Belinda Bowers for the period 12 August 2012 to 6 September 2012;

16. Text messages between the applicant and Belinda Bowers on 23 September 2012;

17. Psychological Risk Assessment Report prepared by Dr Emma Collins dated 13 November 2014;

18. Further indexed bundle of documents filed by the Children's Guardian on 7 August 2014;

19. Exhibit A1 as second Psychological Risk Assessment Report prepared by Emma Collings dated 30 November 2014;

20. Exhibit A2 – email dated 28 November 2014 from the applicant to Dr Emma Collins and response of Dr Collins to his solicitors;

21. Letter dated 26 September 2014 from the Crown Solicitor's Office to the applicant;

22. Reply of the applicant to the Crown Solicitor's Office dated 15 October 2014;

23. Oral evidence of the applicant on 13 March 2015;

24. Oral evidence of the applicant on 14 September 2015; and

25. Oral evidence of Dr Collins on 14 September 2015.

The matters that caused a refusal of the clearance

29. The Risk Assessment Report referred to several matters that contributed to the refusal of a clearance:

1. 1.1 Alleged aggravated indecent assault April 2009; A summary of the police case says that the evidence that they had indicated that during dinner the applicant and V were sitting at a table in the kitchen. She spoke about the pain that she suffers in her right arm and the applicant suggested that massaging her arm may assist in relieving the pain. He then went to her and massaged her arm. He subsequently led her to an upstairs bedroom where she laid on the bed. It was not a bedroom used by any occupant in the house. He continued to massage her right arm and then moved to her right leg, moving his hands up and down her leg which was covered by an ankle length skirt. He then moved his hands underneath the skirt and continued to massage her leg. He moved his hands upwards to the top of her legs and brushed his hand over her vagina. He continued to massage her and touched her breasts and "then cupped his hand around the victim's right breast and maintained a grip for a short period of time". V then left the bedroom and returned to her bedroom and contacted a friend to report what had happened. Her boyfriend arrived that evening and stayed with her. The following day V vacated the home with the assistance of her boyfriend.

2. 1.2 V did not report the matter to the police until she went to the police on 15 June 2010. But she had disclosed the alleged incident to others before that.

3. 1.3 The applicant was interviewed by police on 22 July 2011 in relation to the allegation of aggravated indecent assault on V. he denied the alleged sexual assault and also said that what he did in the massage was consented to by V.

4. 2.1 The applicant in April 2010 was suffering from major depression and had attempted suicide by an overdose of a prescribed medication and hanging. He was admitted to the Sydney Clinic in August 2010 and treated as an inpatient;

5. 3.1 On 28 August 2011 V was seated at a table in a food court area of a shopping centre and was approached by the applicant in company with his daughter. V was shocked to see him and felt frightened. He told her that he had been trying to contact her in order to speak with her about "the case". She said that he said to her:

"I was wondering if we could talk about the case and if we could come to some other arrangement or conclusion without it going to court, because we both have to live in town and we are both going to run into each other".

And

"I'm sorry for making you feel uncomfortable and for crossing any lines. I only wanted to make it better".

6. 3.2 V said that she then felt scared and intimidated. The applicant then continued to say "I'm sorry. I'm sorry. I never meant to hurt you". After this the applicant left and V went to the police station and reported the incident.

7. 3.3 Charges for “doing an act with intent to influence a witness" and "stalk or intimidate with intent to cause fear or physical harm" were made against the applicant by the police and were returnable in the Local Court on 31 October 2011. The offences were alleged to have occurred on 28 August 2011. Both these matters were dismissed at a hearing on 25 January 2012.

8. 4.1 In November 2012 a woman who had been in a relationship with the applicant for 12 months ended the relationship. She alleged that she had dissolved the relationship over a period of months;

9. 4.2 There were also extensive text messages between the parties. Prior to separation they expressed love to each other and often requested and agreed to meet for sexual activity. In the message she sent to him on 28 January 2013 she told him "It's over" and she asked him not to message her as she wanted "time without contact". He agreed.

10. 4.3 But in March they resumed correspondence by text messages when they were making arrangements for him to collect some property. That correspondence continued until late March.

11. 4.4 In about March 2013 the applicant was still seeking to resume the relationship. He delivered to her at her hairdressing salon a 23 page typed letter begging her to resume the relationship, describing in great detail numerous sexual activities that they had shared, or he wished they would share, or he fantasised about. The letter included photographs of each of them at different times. He had also proposed that if she already had another man they should become a threesome for sexual activities.. He also argued that she should share his conviction of the advantages of indulging in sexual activities with multiple partners.

1. 4.5 He also sent her extracts from the novel "The Bride Stripped Bare" (6 pages). In the letter he said that "my high sexual drive and constant masturbation became a wedge between us, when all I wanted was your encouragement and support".

12. 4.6 He sent her an email on 21 March acknowledging her reply in which she had told him that she had another partner and had "moved on". The letter was still a love letter and praised her for the joy and happiness she had given him. He asked to provide assistance or support for her or her children or other members of her family. It said

“I'm not giving up. We may connect again in years to come, and of course it will be different, it may not be with the same depth that we had before, but we have been in so deeply with each other and that is what remains with me".

13. At the end of the 6 page message, he said:

"Please darling, leave the door ajar for me just a sliver. It does not have to be so open that you have romantic love for me, just open enough to allow me to be on the periphery of your family so that if I need something maybe you can help me out …".

1. 4.7 He sent her an email on 19 March 2013. It first dealt with the issue of the insurance premium to be paid on a car, but also included expressions of love for her and requests for them to resume their romantic relationship.

14. 4.8 On 20 March the former partner responded with an email that dealt with an issue concerning insurance premium for a motor vehicle, and then responded in relation to their relationship by saying, among other things:

"I have been very clear with you. I feel in regard to you that it's over between us for me and that I cannot be in a relationship with you. I think friendship is probably not a good idea – either right now as I can see that it will take time for you to move on, not easy for you if I'm around you?"

1. And

"You also need to know that I have moved on and am seeing someone else ….I am very happy and it feels right for me, and also for my boys".

15. 4.9 In April they exchanged messages regarding her giving one of the children a haircut. That correspondence did not include proposals for resumption of the relationship or any references to past or future sexual activity.

16. 4.10 On the night of 23 November 2013 there was a celebration dinner at the local convention centre to celebrate the graduation of students, including the son of the former partner for the applicant.

17. The applicant had part time work at the convention centre and his former partner was aware that he might be in attendance.

18. 4.11 In a statement to the police, the former partner related that when she arrived with her mother and others she saw that the applicant was standing near the tables that they were to occupy. When he was waiting on her table she says that she "treated him like any other waiter". After she had danced with her son she saw a text message on her telephone which she believes was sent by the applicant. It said "I saw you dancing with [your son]! Wow! You guys looked so beautiful…what you've done to get that together is magnificent!! Wonderful !!".

19. 4.12 When her mother saw the applicant at the function, she politely nodded and said hello. Towards the end of the night she was watching her daughter and grandson dancing, the applicant came to her and crouched on one knee close beside her at eye level. He said hello and said "do you believe that [she] will marry [R]?"

20. 4.13 He then asked after her goddaughter whom he has not met, and said "Well, you know if [his former partner] leaves her for Melbourne well you know I will be here for [the other daughter]". He asked after the health of his former partner's mother and then went back to work.

21. 4.14 As the former partner left the graduation, the applicant approached her and said "we all adore you, so are you going to marry [R]?". She shook her head and left quickly.

22. 4.15 The following day she received a text from the applicant saying:

"I wasn't sure if you were going to get access to these photos so I did my best to get some shots for you. [her son] is such a beautiful man now. You must be very proud. Lots of love and all the best for your future…. and if you're not going to marry Phil….You should MARRY ME."

23. 4.16 Attached to the text message were the 4 photographs of her son which had been displayed at the graduation. 2 days later when she was working in her shop a customer told her that she had just seen the applicant near the shop. The customer told her that he looked "very dishevelled and agitated and excited". The customer said that he had spoken to her and asked her for information about the former partner and the customer said that she was concerned about his behaviour. She said that the applicant also asked her if she and her husband would have dinner with him.

24. 4.17 On 26 November 2013 the former partner received a text message from the applicant stating:

"this life is worth it. What we can have is so worth. I am so worth it. Please give me another shot. I only want you. I am a stronger, better person".

25. 4.18 The message was sent to her at 7:15am. A subsequent message was sent the same day at 11:31am from the applicant which said:

"it's not a case of going back, it's going forward and repairing and improving everything. What better example is there for [names of children], besides this ….???"

26. 4.19 She replied to him stating that she did not want to have any contact with him and that their relationship had ended. She was concerned about the messages and was fearful as they had been separated for over 1 year. She said that she was scared. She approached the police to obtain an apprehended violence order and made her statement on 27 November 2013.

27. 4.20 The former partner applied to the Local Court for an Apprehended Domestic Violence Order restricting the behaviour of the applicant for the purpose of protecting her.

28. 4.21 On 13 January 2014 in the Local Court at the instigation of the former partner and on the application of the Police an Apprehended Violence Order was made for the protection of the applicant's former partner on the following terms:

a.The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the person(s) has / have a domestic relationship with;

The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has / have a domestic relationship with;

c.The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has / have a domestic relationship with;

The defendant must not enter or loiter within 5 metres of the premises at which the protected person(s) may be from time to time reside or work or other specified premises; [address of hair dressing salon]

The defendant must not approach within 20 metres or contact of the protected person(s) by any means whatsoever except through the defendant's legal representative.

29. 4.22 Her 2 children were included as protected persons in a preceding interim order, but on 13 January 2013 the children were removed as protected persons.

30. 4.23 The court record includes "the defendant was present in court when the order was made. The order was made without admissions by the defendant". Incident on Saturday 3 November 2013

Period of time since those matters occurred and the conduct of the applicant since that time

30. It is now more than 6 years since the interactions with V in April 2009. Other matters referred to above have occurred more recently, and the most recent matters are the events that gave rise to the application for an apprehended violence order. Those orders expired on 13 January 2015, apparently without any breach.

31. The alleged offences of “act with intent to influence witness” and “stalk / intimidate intended fear or physical or mental harm” occurred more than 4 years ago. The events leading to the AVO occurred more than 2 years ago.

The age of the person at the time the offences or matters occurred

32. The applicant was born on 22 December 1969. At the time of the alleged incidents resulting in the charge of aggravated indecent assault he was 39 years of age. At the time of the alleged offences of 28 August 2011 he was 41 years of age. At the time of the events resulting in the AVO of November 2013 he was 42 to 43 years of age.

The age of each victim at the time the conduct occurred and any matters relating to the vulnerability of the victim(s)

33. V at the time of the alleged offence in April 2009 was 20 years of age. She suffered from cerebral palsy with Hemiplegia (weakness) and right hip dysplasia. That was a vulnerability, as was the facts that she was a tenant of the applicant and his partner living in their house and that she was alone with the applicant in the home at the time of the alleged offence. She was also significantly younger and less worldly than the applicant. She trusted the applicant.

34. In relation the alleged conduct on 28 August 2011, V was 22 years of age and had the same vulnerabilities, except that she was in a public place, no longer residing in the applicant's home and no longer a tenant of him and his partner.

35. In relation to the alleged conduct leading to the AVO of January 2014, the alleged victim was 40 to 41 years of age.

Differences in ages between the applicant and the victims

36. The applicant was 19 years older than V. In relation to the alleged events leading to the AVO, the former partner of the applicant was 2 years younger than the applicant

Whether the person knew or could reasonably have known that the victim was a child

37. Neither of the alleged victims was a child

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred.

38. The applicant does not have a criminal record. He has no convictions.

39. The conduct of the applicant alleged to have occurred on 28 August 2011 was from his perspective at best stupid and insensitive, but from V’s perspective it was intimidating and the Tribunal finds on the balance of probabilities that he knew that.

40. The alleged conduct of the applicant relied upon by the former partner in bringing an application for an apprehended violence order involved serious and obsessive harassment. He also demonstrated a level of obsession with sexual activities.

Likelihood of any repetition of the person of the offences or conduct and the impact on children of any such repetition

41. The trigger for the assessment was a charge that involved no child victim. Nor did the other matters relied upon by the Children’s guardian. However, the conduct alleged in relation to the charge of aggravated sexual assault was sexual conduct in relation to a vulnerable person. The subsequent charges related to intimidation of V. Much of the conduct alleged in relation to the application for the AVO was also about sex.

42. Sexual assault on a child, even a child who is almost 18 is likely to have a serious adverse impact in terms of emotions, self confidence, security, trust, self esteem and other aspects. It can have lifelong impact, even if the victim is an adult.

43. Dr Collins’ expertise in the area of forensic psychology, particularly in relation to sexual offences, was not in issue. Her report was dated 30 November 2014 extends to 9 pages. She used the STATIC-99 test for assessment, and also the RSVP tool. She concluded that the risk of sexual offence by the applicant in the future is low to moderate. This was obtained from the STATIC 99 and the RSVP results, but the basis that the applicant does not have any conviction for a sexual offence and he has not shown to have denied or minimised any such offence. It also takes into account dynamic factors being his history of mental illness and mental health problems, prior suicidal ideation and intent, and hypersexuality. These matters and also a list of protective dynamic factors were all considered and expanded upon in the report. The protective factors comprised:

1. Absence of sexual convictions;

2. No other history of criminality;

3. No evidence of attitude supportive of sexual violence;

4. No history of child abuse;

5. Does not present with psychopathic traits;

6. No substance abuse issues;

7. He has a relatively consistent employment history;

8. Evidence of long term supportive intimate relationships;

9. There is a history of accessing treatment when required; and

10. No observable difficulties with planning or supervision.

44. By his email of 28 November 2014 the applicant informed Dr Collins of numerous matters that he said were factual errors in her report. Dr Collins then wrote to the applicant’s solicitors on 14 September 2014. She said that after she sent the applicant a copy of the draft report she received his email and he then phoned her and they discussed the issues on the telephone. She said the quotations attributed to the applicant in the report were direct quotations from interview or the telephone conversation. She informed his solicitors, ““he was happy with the proposed quotations and then the report was finalised.”

Any information given by the applicant in or in relation to the application

45. The applicant in 45 years has not been convicted of any criminal offence. He has not been charged or convicted of any offence against a child, nor has there been any evidence that he has any sexual attraction to children. But the issue in the proceedings, of course, is about risk, and it is not necessary to establish such an inclination or prior misconduct against a child.

46. The applicant also relies upon the fact that he has, for a large part of his career, worked as a professional performer and a puppeteer for both adult and children's shows in Australia, the UK and USA, including television shows in Australia. He was Head Coach and Acrobat for the Belfast Community Circus School. There is no independent evidence of whether he has been convicted of any criminal offence in UK or USA.

47. From the period January 2002 to February 2010 he was employed full time by an Acrobatic Group training children in acrobatics and other circus skills. He also in the 16 years to 2008 from time to time tutored children in theatre and art at the Australian Theatre for Young People in Sydney. He was in "Theatre Of Images" in Pyrmont as a performer and there were children in the productions.. He participated in holiday workshops for children and led seminars with school children in his work with the Theatre of Images. He

48. He also worked in Deniliquin coaching children, producing, writing and managing the Outback Theatre for Young People.

49. Since January 2011 he has been an employee of the local council. From January 2011 to 2013 was employed as a Visitor Information Officer. Since October 2012 he has been a casual attendant at an entertainment centre, since January 2013 he has been a casual Visitor Information Officer and since August 2013 he has been a casual general hand at a sports stadium.

50. There is no evidence of any complaint or charge in relation to any behaviour towards a child, except that he testified that when giving swimming lessons for NSW Department of Sport and Recreation, he removed a girl from the water because it was not safe for her to remain there because of her erratic behaviour. He said there was a complaint about that. Details were not given

Any other matters that the commission considers necessary

51. In her oral evidence and cross examination Dr Collins confirmed her assessment of Low/Moderate risk.

52. The Guardian drew attention to the fact that Dr Collins accepted that the applicant satisfied the finding of “lack of substance abuse”. She recorded that the applicant told her he “smoked cannabis from approximately age 15 to 20 years old on a weekly basis at most”. But handwritten progress notes produced by Dr Whitten stated “[BJV] began with THC at age 14. Dependent at age 16 and ‘weened himself off at age 20.’” This goes to the applicant’s credit, but also places some doubt on the assumption by Dr Collins, in assessing the risk, that the applicant had “no substance abuse issues”.

53. Dr Collins, relying on what the applicant told her, found that the applicant had no history of being abused as a child. But the applicant told Dr Collins only that he was smacked occasionally by his father. Dr Kumar reported that the applicant had problems with his relationship with his father and “He believed that he has been traumatised by his father’s behaviour when he was a child.” And Mr Dale, psychologist, reported to Dr Alan Shroot on 17 February 2011, “I have suggested that in the short term [BJV] limit his exposure to his father who has a psychological crushing effect on [BJV’s] self esteem.” This places doubt on the assumption in the risk assessment that the applicant had not been abused as a child.

54. In cross examination the applicant said he could not recall whether he had told Dr Collins about these matters. In cross examination Dr Collins said that the extent of the difficulties in [BJV’s] relationship with his father, “potentially” would have impacted her assessment. It appears it would have impacted negatively on her risk assessment.

55. In cross examination Dr Collins testified that the applicant difficulties coping with stress and also that despite improvement in his mental state since his suicide attempt in 2010, his general adjustment has not reached his prior optimal levels.

Conclusions

56. The Risk assessment of Dr Collins is that the risk the applicant poses to children is above the “Low” level, and in the “Low/Moderate level. There is no precision in that, and the risk may be moderate or low. But it can’t be stated confidently that it is low. Dr Collins in arriving at “Low/Moderate” assessment of risk relied upon assumptions that the applicant had no background of abuse as a child and a lack of substance abuse and had not committed the sexual offence of which he was charged and therefore had not falsely denied or minimised it.. The first 2 are protective factors. But one or both of those assumptions may have been incorrect and other protective factors adopted in conducting the risk assessment are also challenged by the submissions by the Children’s Guardian.

57. The assessment tool did not allow for the possibility that the applicant did commit the offence in 2009 (and consequently has falsely denied it). If instead the assessment were done on the assumption that he did commit the alleged offence, the risk outcome would have been even higher.

58. The risk assessment is the obstacle to the granting of a clearance to the applicant. It is open that he is a moderate risk even on the assumption that he did not commit the alleged sexual assault of V.

59. In Commission For Children and Young People –v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation “not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children”. He held regarding the construction of the section:

“One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence”. [At par 41] and [at par 42]

“One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the ‘risk’ with the words that follow, namely, ‘to the safety of children’.

60. The Tribunal concludes that the applicant poses a real and appreciable risk to the safety of children and that the correct and preferable decision was to refuse a Working with Children Check Clearance.

Privacy

61. For the protection of the privacy of the Applicant, his former partner and V there should be an order prohibiting the publication of any of their names or other identifying information.

Orders

62. The orders of the Tribunal are:

1. The decision of the Children’s Guardian of 3 June 2014 refusing the applicant a Working with Children Check Clearance is confirmed.

2. Publication or broadcast of the names or other identifying information of the applicant, or either of the persons referred to in these reasons as ”V” or as the applicant’s former partner is prohibited

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 11 February 2016