CBE v Children's Guardian

[2016] NSWCATAD 29

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CBE v Children's Guardian [2016] NSWCATAD 29
Hearing dates:	17 November 2015
Date of orders:	18 February 2016
Decision date:	18 February 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Mullane ADCJ, Principal Member M O'Halloran, General Member
Decision:	1. The Decision of the Children's Guardian of 4 May 2015 refusing the grant the applicant a Working With Children Check Clearance is set aside; and 2. The Children's Guardian must issue the applicant with a Working with Children Check Clearance; and 3. Broadcast or publication of the name(s) or other identifying information of the applicant or his wife of any child or the applicant's wife or any person who accompanied the applicant in about March 1996 on a camping trip to Yarramundi is prohibited.
Catchwords:	Review of refusal to grant working with children check clearance - sexual assault charge – found not guilty.
Legislation Cited:	Child Projection (Working with Children) Act 2012 Crimes Act 1900 Administrative Decisions Review Act 1997
Cases Cited:	Commission For Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	CBE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Lowson (Respondent)   Solicitors: CBE (Applicant in Person) Crown Solicitor’s Office (Respondent)
File Number(s):	1510340
Publication restriction:	Broadcast or publication of the name(s) or other identifying information of the applicant or his wife or any person who accompanied the applicant in about March 1996 on a camping trip to Yarramundi is prohibited.

Reasons for decision

1. In about March 1996, the applicant, who was a judo instructor at a Youth Club with another judo instructor from the club organised a camping trip for a 2 day weekend to Yarramundi. They invited four (4) of the children who attended judo classes at the club.

2. The trip involved them sleeping overnight in a tent. There were 6 of them and the tent was a 4 person tent.

3. The applicant was known to the families of the children. They had previously gone with these same instructors and other members of their families for a five (5) day camping trip at Port Stephens for a judo event.

4. One of the children attending was the son of the applicant's partner. Another, who for purposes of these reasons, will be referred to as "V", was a girl of 13 years of age. Her brother and her sister also attended.

5. On 1 February 1997 V reported to the police that on the night of the camping trip V went to bed early as she was unwell. Later in the night when the others had gone to bed in the tent, she woke. She said that she found the applicant has his finger in her vagina.

6. V had previously spoken to others about the alleged assault but had delayed telling her parents. When she did, she then reported it to the police. It was subsequently investigated and the applicant was charged with aggravated sexual assault under Section 61J(1) of the Crimes Act 1900.

7. The charge went to a defended hearing, and on 31 March 1998 a jury found the applicant not guilty of the charge.

8. It should be noted that the finding of not guilty is not a finding that the jury was satisfied that the offence did not occur. It means that the jury was not satisfied that the evidence established the offence to the criminal standard of "beyond reasonable doubt".

9. Notwithstanding the finding of the jury, in these proceedings one has to take into account the possibility that the offence did occur.

10. In March 2014 the applicant applied to the Children's Guardian for a Working with Children Check Clearance under the Child Protection (Working with Children) Act 2012 (“the Act”).

11. The Children's Guardian considered extensive material including material provided by the applicant, and on 4 May 2015 determined the refuse his application for a Check Clearance.

12. On 16 June 2015 the applicant lodged his application for an administrative review of that decision of the Children's Guardian

Relevant Legislative Provisions

13. Section 61J of the crimes Act provided that a person who “has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows the other person does not consent to the sexual intercourse is liable to imprisonment for 20 Years.

14. Sexual intercourse includes digital penetration of the vagina (Crimes Act s 61H).“Circumstances of aggravation” is defined in subsection 61J(2) as including where the victim is under the age of 16.

15. Section 4 of 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.”

16. 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.

17. 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”.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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 a situation where proceedings have been commenced against a person for an offence specified in 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. An offence under section 61J of the crimes act is one of the offences specified in para para 1(1)(e) of Schedule 1 and applies to the applicant because he was an adult at the time of the alleged offence and he was not a disqualified person because the jury found him not guilty.

23. Accordingly, the Applicant on 26 March 2014 applied to the Children’s Guardian for a Clearance and the Children’s Guardian undertook an assessment.

24. Under Section 16 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.

25. 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

26. On 7 July 2014 the Children’s guardian requested the applicant to provide information specified in the request. On 14 July 2014 the Children’s Guardian wrote to the applicant advising that an interim bar had issued against him working with children. On 16 December 2014 the Children’s Guardian notified the Applicant under section 19 that a refusal of a clearance was likely and he should provide specified evidence within 15 working days by statutory declaration. On 4 May the Children’s Guardian notified the applicant of the refusal of a clearance.

27. 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 as a result of an assessment 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.”

28. 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.

29. 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.

30. 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.

The Evidence

31. The evidence comprises:

1. The application filed 16 June 2015;

2. The letter of refusal dated 4 May 2015;

3. Statement of applicant dated 23 October 2015 by way of letter to the Tribunal with attached statutory declaration by [The applicant’s fellow judo coach at the youth club];

4. Bundle of documents filed by the respondent pursuant to Section 58 of the Administrative Decisions Review Act 1997 indexed and paginated (157 pages);

5. Oral evidence of the applicant of 17 November 2015.

Seriousness of the mattes that caused a refusal of a clearance

1. Alcohol given to children:

1. The applicant and his fellow instructor took a 6 pack of beer and a bottle of whiskey or bourbon on the camp. The 2 men drank the alcohol and also gave some of it to the eldest girl, who was at the time 16 years of age and some to VC, who was 13. All of the alcohol was consumed on the Saturday night, mostly by the applicant and the other adult..

2. Both the adults were well intoxicated. The applicant told the police that the drinking commenced after dinner and that by the time they had drunk the liquor, he was "very intoxicated" and then he went for a walk for a while and then went to bed.

3. The group cooked and ate dinner before the drinking.

2. Skinny Dipping

1. The applicant was 27 years of age at the time and his evidence was that during the day there was discussion about "skinny dipping, past experiences and that". There were 4 or 5 of them went skinny dipping before dinner. They comprised him and the other adult, 2 girls and possibly the brother of the girls. He was in the water in the same area as V [aged 13 years] and her sister [aged 15 years]. The other adult [aged about 27 years] cannot recall whether V's brother, aged about 10 years, also went skinny dipping.

3. Alleged Aggravated Sexual Assault of child

32. Section 61J of the Crimes Act provides

S61J Aggravated Sexual Assault

1. Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years

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

1. at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

2. at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

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

4. the alleged victim is under the age of 16 years, or

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

6. the alleged victim has a serious physical disability, or

7. the alleged victim has a serious intellectual disability

33. Six persons were in a 4 man tent and it was quite congested. During the night the other adult moved his motor vehicle and slept there. The applicant was sleeping next to V and she woke during the night. She had her back towards him and was not inside her sleeping bag. She was sleeping under it. She was wearing a T shirt but nothing underneath it. In her statement to the police she said that she woke in the night and the applicant had his finger in her vagina and was moving it about. She said that she rolled over to prevent this continuing.

34. V said that she had "2 Jim Beams" with coke and a beer. She said that she had gone to bed feeling a little sick, leaving her sister and brother and the 2 adults at the fire. When she felt his finger in her vagina, she was lying on her side facing the wall of the tent and the applicant was behind her.

35. She said when she rolled over to force his finger and hand away from her. He then took hold of her left arm and pulled her towards him. She says she pushed him away and said "don’t". He then moved from her and left her alone.

36. There was a statement by each of 2 cousins of V that in about August 1996 she was with both of them sitting in a car talking. One says that V said to them "I was on a sleep-over and I had a head ache so I went to bed so it would go away. Then [the applicant] came in and he fingered me and I pushed him away". The other says that V was upset and crying and said "I was camping and I had a head ache and I went into the tent to lay down to get rid of my head ache when [the applicant] came in. [The applicant] is my judo coach. He laid next to me to me and he fingered me. I moved away from him and he kept on coming near me".

37. V also said "don't tell anyone. I don't want anyone to know". One of the cousins advised V to tell her mother. The cousin said that V responded "I don't know how and I don't want anyone to know". There is also evidence by a third cousin of a conversation that she had with V in about September 1996. She had heard V talking with the other 2 cousins. They were in the next room watching television. When she went into see them she spoke with V and V told her "I went camping with people, including [the applicant], my judo coach. I went into the tent because I had a head ache and other people were sleeping in the tent and [the applicant] took advantage of me".

38. Subsequently in December 1996 she was again talking with V and noticed that V was upset. She said in her statement that V was "quiet, withdrawn and she was not her normal self". She relates that a conversation occurred as follows:

V:    do you remember what I told you before?

Cousin:    yeah, I remember what you told me.

V:   I want to tell my mum about it but I am scared to.

Cousin:    why do you want to tell her?

V:   because he's my coach and he is 28 years old.

Cousin:    what happened?

V:   I was lying in a tent trying to get to sleep and he was getting close to me. [My sister and brother] and other people were in the tent asleep.

Cousin:    if you want me to help you tell your mum then you will have to tell me what happened. Does [2 cousins know]?

V:   yes

Cousin:    well if you can tell them, then you can tell me. So what happened?

V:    he was laying next to me and he fingered me and tried to kiss me.

(Cousin said in her statement "I'm not sure if she said he tried to kiss her first or whether he tried to kiss her after touching her").

39. The cousin continued and said that she told V that she would tell V’s mother that V has a problem and wants to talk to her about what happened. She offered to help V tell her mother. Later that day the cousin spoke with V's older sister and also spoke with her V's mother on the telephone the next day. That day V, her sister and 3 cousins were at the house of one of the cousins and V on that occasion reported to her mother what had happened. V was crying when she was talking to her mother.

40. The applicant has throughout denied that on the night in question when he was in the tent that he touched V sexually or at all.

41. The matters referred to and relied upon by the Children's Guardian in making the decision to refuse the clearance are serious. The allegations in relation to skinny dipping and supply of alcohol to children are admitted, to some extent. V alleges that she was provided with alcohol, but the applicant denies that.

42. The particularly serious allegation is the allegation of sexual assault. The maximum penalty for the criminal offence of aggravated sexual assault was imprisonment for 20 years. V was only 13. There is no witness who observed what happened between V and the applicant that night. The only corroboration appears to be V's subsequent reporting of the offence.

43. But the allegations are such that, if true, the applicant may present a serious risk to the safety of children.

Period of time since the matters occurred and the conduct of the applicant since they occurred

44. It is nearly 20 years since the matters occurred. The respondent has been married since 1 April 2000. His wife supports his application. They have 2 sons aged about 13 and 15 years. There is no evidence of the applicant being the subject of any conviction, complaint or charge other than the charge of aggravated sexual assault that went to trial.

45. In his evidence to the Tribunal the applicant persists in denying this alleged sexual assault.

46. The applicant's wife has known about the allegations since she met the applicant and her evidence is that his other friends and family members are also aware of them.

47. In her statutory declaration of 17 November 2014, she says the applicant is "an occasional drinker. He does not and has not offered alcohol to our children or any other children in our care. We teach our children the importance of not drinking to excess and talk about what effects it can have on your health and better judgment".

48. She describes the applicant as always having been "a good role model for our children and their friends". Her view is that he has not acted "inappropriately with our children or any other children, whether in our care or otherwise".

49. The applicant in his letter to the Tribunal dated 23 October 2015 explains that he has been unable to afford legal representation and his application for Legal Aid has been refused. He says:

"I acknowledge that it was poor judgment and immaturity on my part that lead to an inappropriate situation involving drinking and skinny dipping. I have never denied this fact in court, or medical or legal consultation, and I fully accept and understand that what happened was wrong. However, the matter which saw me in court was sexual assault, and not specifically the drinking or skinny dipping. I was found not guilty of the assault charge in a court of law. The court case and the assault charges have impacted on my life significantly and I am always mindful of the responsibility I have as an adult, and now parent, in society. I consciously highlight the importance of appropriateness with my 2 sons".

50. There is a statutory declaration in evidence by the other male adult who attended the camp in 1996 and he says that he has known the applicant for over 25 years and "I believe him to be an honest and trustworthy person". That person gave a statement to the police in 1997. In that statement he recalled that he took the 6 pack of beer to the camp and his recollection is that V and her sister and the 2 male adults had some alcohol. He said "no one got drunk from what I can remember, just happy". (The children’s statements corroborate the applicant’s statement that he was drunk.)

51. The other adult recalled sleeping in the tent, and moving to his vehiclebut not where individuals were sleeping. He recalled that the applicant woke him up in the night as the applicant was feeling sick and went outside. He said that it was about 2am or 3am when that happened.

The age of the person at the time the matters occurred

52. The applicant was born on 3 April 1968 and was 27 years of age when the matters are alleged to have occurred.

The age of the victim and any matters relating to the vulnerability of the victim

53. V was 13 years of age. In relation the giving of alcohol to children, V was 13 and her sister was 15.

54. In relation to the skinny dipping, V was 13, her sister was 15, her brother was 10 and the other boy was about 15.

55. The victims were vulnerable due to age and immaturity, and also because they were dependent upon the applicant for care and protection.

Other inappropriate sexual behaviour towards V

56. In a statement that V provided to the police, she alleged that in late December 1995, members of the judo club had gone to Port Stephens with their families. She had had a shower and was in her pyjamas walking to get a hot chocolate. She sat down to drink it in sight of the applicant, and she alleges the applicant said "have you ever experienced a thrill taker". He took one of her feet, asked her "is it clean?" and sucked her toes. She pulled her foot away.

57. She alleged that some time later the applicant visited her home with his partner, who was to drive her to school. At the time V's mother was in another room and her father was in hospital. She alleged that she was sitting in her bedroom playing Nintendo and the applicant was sitting next to her. His partner was somewhere else in the house. She alleged that the applicant put his face in front of her head and kissed her whilst placing his tongue in her mouth. She turned her head away and pushed him. She told him to go away. He replied "sorry". She then left to go to school.

The difference in age between the victim and the person and the relationship

58. The relationship was one in which the applicant was 14 years older, more mature, more experienced and more worldly. In addition, each of the children were dependent upon the applicant's care and protection.

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

59. The applicant knew that each of the children involved in the matters was a child

The persons present age

60. The applicant is now almost 48 years of age

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

61. The applicant does not have a criminal record. In his 48 years he has no conviction for any offence.

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

62. The impact of the sexual assault on a child can have very serious repercussions. It can cause long lasting adverse effects on the child in terms of their emotions, their trust of others, their self esteem and self confidence, and their attitudes in relation to sexual activity.

63. Dr Stephen H Allnutt, Forensic Psychiatrist, has assessed the risk that the applicant poses to children. His report is dated 27 August 2014. Unfortunately, the report does not detail what records and statements were made available to Dr Allnutt when preparing his assessment. In that report he relies upon information from the applicant which demonstrates that he overstated the ages of the children involved in the matters in 1996, and omitted to disclose that he provided alcohol to 2 of the children, and alleges, contrary to other statements by him, the 2 adults were 30m to 40m away in the river where the children were swimming. He also understated his age at the time of the matter as being 24.

64. Dr Allnutt when undertaking the risk assessment adopted both a clinical approach and an actuarial approach. He concluded:

Applying a clinical risk assessment tool to your client such as the SVR-20t, he does not manifest the usual risk factors associated with sexual recidivism. That is, there is insufficient evidence to conclude that he manifests the following: sexual deviation (there is no evidence of paraphilia); has been a victim of child abuse; suffers from a major mental illness; has had significant substance abuse problems; has previously been suicidal/homicidal ideation; has significant relationship problems; has significant employment problems; has a past nonsexual violent offences; has a past non-violent offences; has a past history of supervision failure; has a history of high density sex offences, or multiple sex offence types; has engaged in physical harm to victims; has used of weapons or threats of death in sex offences; and manifested and escalation in frequency or severity of sex offences; manifests extreme minimization or denial of sex offences (he has been found not guilty); manifests attitudes that support or condone sex offences; manifests a lack of capacity for realistic plans; or manifests negative attitudes towards intervention.

Given that your client has been charged with a sexually related offence, the Static 992 can be applied. Had he been subject in population on which the Static 99 was based he would have fallen into the group who are at low risk of sexual recidivism as compared to other sex offenders. That is out for 4 potential risk groups (low, moderate-low, moderate-high and high) he falls into the lowest risk group. This is because he would score 1 on the Static 99. In addition, hi the absence of further criminal offending of any kind since the index incident he would fall into the lower range of that risk group.

Thus overall I would regard your client as falling into a low risk group for sexual recidivism and into a group of individuals who would be regarded as low risk in their role when working with children.

I would have no recommendation for treatment.

65. The Tribunal accepts the evidence of Dr Allnutt and that the applicant is low risk for the safety of children.

66. In his letter to the Tribunal dated 23 October 2015, the applicant informed the Tribunal that he had been seeing a clinical psychologist, Mr Ken Ferris in early 2015 and that Mr Ferris had provided a report and was available to do a phone interview. It appears from Mr Ferris’ report that the applicant attended 5 therapy sessions with Mr Ferris prior to his report. But is appears that the therapy was not for sexual matters. Rather it was about his distress and disturbance from the refusal of the Children’s Guardian and the raising of issues from his distant past. His report dated 2 March 2015 is 7 pages. To Mr Ferris the applicant denied the alleged sexual assault and appears to have minimised the allegations (e.g. he said he was only 25, the girls were 14 and 16, and the younger boy was 15 (he was 10)). He also seems to have minimised the level of intoxication that he had when he went to bed.

67. Mr Ferris did not appear to have been supplied with any of the documents that were provided for the hearing by the Children's Guardian. He did a clinical assessment and administered a Personality Assessment Inventory (PAI) for the applicant.

68. He found that "the respondent's scores suggest that he did attend appropriately to item content and responded in a consistent fashion to similar items". He found that the PAI results did not indicate the presence of Clinical Psychopathology. He found "The respondent reports that drug use may be the source of some problem in his life. This problem could include strained inter-personal relationships, vocational and / or legal problems, and use of drugs to manage stress", but he described no significant problems.

69. From the PAI and interview, Mr Ferris concluded "[CBE]" is of absolutely the lowest possible risk. It has been established by Dr Allnutt and his current test results continue to back up this assertion. He said:

"The only issue that registers a small concern through this assessment stems from his honesty as [the applicant] recalls the incident with alcohol causing stress upon his life, pertaining specifically to the night in question, and his knowledge that the drinking and the actions with his friend look poorly with paired with the allegation. However, the allegation has been dismissed and he was found not guilty, and has now been assessed multiple times independently of the lowest risk possible".

70. Mr Ferris also said:

"Otherwise, in all respects, [the applicant] is a completely functional, non-threatening, indeed normal or even boring – the exception of how he has been able to remain so positive and optimistic in the face of an allegation that comes to the court and how any person would identify himself. It is exceptional that [the applicant] can remain so resilient, self assured, positive and open with people in his world when he has, in essence, been raised as a risk of committing a highly serious and abhorrent crime when failing these working with children checks".

71. He said further in his report:

"[the applicant] should be regarded as absolutely no more risk than any other member of the community. It is indeed disappointing that being cleared in court and proven innocent does not entitle him to the same treatment as his fellow members on the community, on the back of an allegation by 1 teenager, proven to have been false".

72. Of course, the decision of the court was not to find that the assault did not occur. Mr Ferris misunderstands the effect of a jury acquittal. It is not an assumption to be made by the Tribunal that the offence did not occur. It may have. This is an assessment of risk.

73. Mr Ferris summarised his findings, (and they should be considered subject to the fact that he misunderstand the effect of a jury verdict of acquittal), as follows:

Summary of results

1. [The applicant] is a 47 year old husband and father of 2 who is looking to receive the same respect from society as that of other members. Despite being cleared of a false allegation 17 years ago, he continues to be flagged and failed Working with Children Checks, despite being assessed as no more risk than any other person in society, by multiple sources. There appears to be no grounds for these Working with Children Checks to continue to fail and affect [the applicant's] employment and leisure activities, and he would have a strong position to which he could challenge his mistreatment if he wished to pursue this treatment further. For now, [the applicant] should be considered an ideal employee and should be granted the same dignity as anyone else completing these Working with Children Checks to maintain a safe environment for children. There is no reason for [the applicant] to be flagged with any level of risk".

74. Notwithstanding that, Mr Ferris attached included a STATIC-99 score sheet but he did not complete the sheet or administer that test to the applicant.

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

75. The applicant has relied upon numerous character references. There are 4 references from people who have employed him and been managers of organisations in which he has been employed. One has known him for 19 years. There is a reference from his medical practitioner who had known him for more than 3 years at the time of the reference. There is a reference from the Club Secretary of his soccer club. It reveals that the applicant has been a member of the club for 11 years and has fulfilled the roles of player, committee member, member, team manager and coach "making invaluable contributions to the club". He has also participated in external training courses obtaining coaching certificates in goal keeping. He has coached several teams in which his sons have been members.

76. There is a reference from a member of the club who has been the assistant to the applicant when he has been a volunteer team manager. He had known the applicant for about 5 years at the time of the reference, during which time the applicant was a volunteer coach and trained the boys 3 evenings per week in a season and also on game days, usually Saturdays. He also says that the applicant initiated Summer Soccer for the team, as well as an indoor soccer team.

77. There is a reference from a mother of 2 girls about the same age as the applicant's 2 sons. The children are friends. The applicant has minded the girls "numerous times" and there has never been any problem or issue about his behaviour. He has also coached her children in the soccer team. The witness testifies that "our children respect him and enjoy playing in the teams that he coaches".

78. In his oral evidence in cross examination the applicant testified that during his children's schooling, he has assisted on school excursions. His employment has involved going to schools. He coached the teams that his 2 boys have been in. He has been involved in teaching judo through a youth club.

79. In relation to giving alcohol to the children, he said in cross examination "In hindsight, it's the wrong thing. I don't do it anymore. I am very cautious what I do around children".

80. When it was put to him that V had 3 drinks that night, he said he had no knowledge of her drinking and "It was wrong for children to have access to alcohol".

81. He said that he hasn't gone skinny dipping with any other children since that occasion in 1996 "since the problems it caused". When he was asked if was only because of the problems that he hadn't gone, he said "No, I am a parent now and I know I would be concerned if someone else did it with my children."

82. He said that looking back he could see that on the night of the matters and what he had drunk, he couldn't properly look after the children. He said the allegations regarding drinking and skinny dipping were a wake-up call.

83. He said that he accepted that the other adult and he were both responsible for the children. Then he said that he couldn't recall how intoxicated the other adult was or any discussions that they had about the care of the children.

84. The respondent testified that he currently drinks only 1 or 2 alcoholic drinks per week. He said that he doesn't want to put himself "in this predicament again".

85. He said that he had drunk more "On 1 or 2 binges over the 18 years since the court case". He said that since the allegation of sexual assault had been raised he had "changed the way I think". When asked, he said that since being acquitted by the jury, he has not sought any counselling regarding his alcohol use or sexual conduct.

86. He said in his submissions that what he did was "stupid. I have changed how I view my life". He said regarding alcohol and skinny dipping "It doesn't happen anymore. I've changed to ensure that such an incident never happens again".

Any other matters that the Commission considers necessary

87. The Commission drew to the attention of the Tribunal under this heading to the inconsistencies between the applicant's evidence given in his police interview about providing alcohol to children and the skinny dipping and that provided by him in his statutory declaration, his interview with Dr Allnutt and during telephone conversations with a staff member from the Office of the Children's Guardian.

88. The Tribunal has also taken into account other instances where since the matters in 1996, the applicant has at times minimised the gravity of the allegations such as understating his age at the time of the alleged matters and exaggerating the age of the children involved. However, the allegations arise from events about 18 years prior to the interviews with Dr Allnutt and Mr Ferris, and it is not uncommon for persons who are the subject of an adverse allegation to minimise them to some degree over such a long period.

Conclusions

89. The Tribunal considers that the expert evidence of Dr Allnutt that the Applicant is of low risk to children and the evidence of the applicant and his character witnesses are not out-weighed by other evidence suggesting the risk is more than “low”.

90. 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’.

91. The tribunal has concluded that the evidence does not establish that the applicant presents “a real and appreciable risk” to the safety of children.

92. The correct and preferable decision is that the applicant be given a working with children check clearance.

Privacy and publication

93. It is in the interests of the applicant, his wife and the children mentioned in these reasons that there be a prohibition on publishing or broadcasting identifying information of any of them.

Orders

94. The orders of the Tribunal made 17 November 2015 were:

1. The decision of the Children's Guardian of 4 May 2015 refusing to grant the applicant a Working with Children Check Clearance is set aside; and

2. The Children's Guardian must issue the applicant with a Working with Children Check Clearance.

95. The Tribunal now makes the following additional order:

(3)   Broadcast or publication of the name(s) or other identifying information of the applicant or his wife of any child or the applicant's wife or any person who accompanied the applicant in about March 1996 on a camping trip to Yarramundi is prohibited.

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: 18 February 2016