CFI v Children's Guardian

[2016] NSWCATAD 91

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CFI v Children’s Guardian [2016] NSWCATAD 91
Hearing dates:	18 April 2016
Date of orders:	12 May 2016
Decision date:	12 May 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member D Kelleghan, General Member
Decision:	1. The decision of the Children’s Guardian dated 23 September 2015 to refuse to grant the applicant a Working with Children check clearance is affirmed.  2. The application for review of the decision of the Children’s Guardian filed 21 October 2015 is otherwise refused and dismissed.
Catchwords:	Administrative Law - review under s27 Child Protection (Working with Children) Act 2012 - refusal of working with children check clearance - whether the applicant poses a risk to the safety of children – applicant charged with sexual offences against two complainants unknown to each other – similarity of allegations - all charges dismissed – applicant nevertheless poses a real and appreciable risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Crimes Act 1900 (NSW)
Cases Cited:	AHV v NSW Commission for Children and Young People [2012] NSWADT 263 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, M v M [1988] HCA 68; 166 CLR 69 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	CFI (Applicant) Office of the Children’s Guardian
Representation:	Counsel: C Evans (Applicant) G Mahony (Respondent)   Solicitors: Muggletons Solicitors (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1510658
Publication restriction:	Section 64(1), Civil and Administrative Tribunal Act 2013 - Restriction against publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REasons for decision

1. The applicant, who will be referred to as CFI in these proceedings, has been refused a working with children check clearance by the Children’s Guardian, who is the respondent in this matter. CFI has applied to this Tribunal for a review of that decision.

2. The notice by the Office of the Children’s Guardian advising the applicant of the refusal of his application for a working with children check clearance is dated 23 September 2015. In his application for review to this Tribunal, which was filed on 21 October 2015, the applicant stated that he received notification of the respondent’s decision on 24 September 2015. This means that he has applied to the Tribunal within 28 days after notice of the decision was given to him, in accordance with subsection 27(1) of the Child Protection (Working with Children) Act 2012.

3. The role of the Tribunal is to make the correct and preferable decision, having regard to the material before it, including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997.

4. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, prohibiting the publication of information about the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Legal Principles

5. CFI requires a working with children check clearance because he seeks to continue his work as an electrician performing work in institutions including schools, and to work as a parent helper in Scouts Australia.

6. The Child Protection (Working with Children) Act 2012 (‘the Act’) provides that a worker must not engage in child-related work unless he or she holds such a clearance. (section 8 of the Act).

7. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (section 3 of the Act).

8. The Children’s Guardian has the power to undertake a risk assessment under s15 of the Act. Section 18(2) of the Act provides that the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

9. Those matters that will trigger such an assessment by the Children’s Guardian are set out in Schedule 1 of the Act. They include where proceedings have been commenced against the applicant for an offence of sexual/indecent assault but where, because he was not convicted of the offence or because the proceedings are not pending determination, the applicant is not a disqualified person: see section 18 of the Act, section 1(b) of Schedule 1 to the Act and sections 1(e) and 1(z) of Schedule 2 to the Act.

10. In this case, the risk assessment was triggered because CFI had been charged with sexual offences against two children between the ages of 13 and 17 years.

11. Having undertaken a risk assessment for CFI, the Children’s Guardian then refused his application for a working with children check clearance.

12. The Tribunal has the power to review such a decision under section 27 of the Act. In doing so, the Tribunal must consider the following factors set out in section 30(1):

(a) 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,

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the offences or matters occurred,

(d) 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,

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

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person’s present age,

(h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(j) any information given by the applicant in, or in relation to, the application,

(k) any other matters that the Children’s Guardian considers necessary.

13. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

14. In considering whether an applicant is a risk to children, the test to be applied is whether the risk is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was).

15. That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra).

Evidence

16. The respondent and the applicant have both placed material before the Tribunal. The applicant gave oral evidence before the proceedings as did the forensic psychologist, Dr Emma Collins. Details of the relevant evidence are provided below.

Risk Assessment Report by the Children’s Guardian

17. A risk assessment by the respondent dated 24 August 2015 recommended that the applicant be barred from being granted a working with children check clearance.

18. The risk assessment was triggered by charges (that were later dismissed) against the applicant alleging that between 1999 and 2007, he had committed sexual offences against two boys under the age of 17 years.

19. The circumstances leading to the charges are set out in the risk assessment and can be summarised as follows. The two complainants were apparently unknown to each other. The first complainant stated that between March 1999 and 2000, when he was 15 years old, the applicant touched his penis and masturbated him at the boy’s place of employment where the applicant was contracted to undertake work as an electrician. The second complainant stated that between late 2002 and late 2003 when he was 13 and 14 years old, the applicant engaged in sexual acts with him involving anal intercourse, oral sex and masturbation. A further incident of indecent assault was said to have occurred in January 2007 when he was 17 years old. The incidents were alleged to have occurred at the business then owned by the complainant’s parents and at the complainant’s place or residence. At the relevant times, the applicant had been contracted to undertake work as an electrician at those premises.

Transcript of 2009 District Court proceedings in relation to allegations made by the first complainant against the applicant

20. The District Court transcript contains the first complainant’s evidence, the evidence of the first complainant’s parents and brother, the applicant’s evidence, the evidence of an apprentice hired by the applicant in 2001, the evidence of several of the applicant’s colleagues in addition to the evidence of the applicant’s sister and wife.

Trial exhibits

21. Contained on file are a series of exhibits tendered in the District Court trial including photographs of the place where the assaults were alleged to have occurred and a spreadsheet of the applicant’s jobs at the relevant time.

Transcript of evidence by second complainant in 2009 Local Court proceedings

22. A transcript of the evidence of the second complainant in the 2009 Local Court proceedings reveals that after having stated that the applicant had both shown the second complainant his own penis and then taken hold of the second complainant’s penis, the second complainant had refused to answer questions in cross-examination. The charges against the applicant were subsequently withdrawn and dismissed.

Records for the second complainant

23. Also contained on file is the following information in relation to the second complainant:

• His criminal record;

• Facts sheets for offences with which the second complainant had been charged;

• COPS events records;

• Details of his history of drug rehabilitation;

• Admissions to hospital for psychiatric care.

Restaurant owner

24. In a statement dated 29 July 2008, the former owner of a fast food restaurant (‘the restaurant owner’) stated that he had employed the applicant for a number of years:

I recall that he was working for me in late 1997 as he worked on my house. Sometime after this I became aware of a complaint involving him. I have heard that he was involved in an incident where he was in a group telling jokes and during this time he flashed his penis. I wasn't there I can't verify that this occurred. I can't recall if this involved staff are not as it was that long ago. Not long after this I became aware of another incident...involving CFI…I don’t know what the incident was….For some reason alarm bells rang to me after what I had been told had occurred…and I terminated CFI’s services. I can’t recall the specific incidences or time…Around 2003...I re-employed CFI.

Restaurant manager

25. In her statement dated 13 May 2009, the manager of this same fast food restaurant where the applicant would carry out electrical repairs stated that:

I never had any personal problems with him however it was not uncommon for him to speak in a sexual manner. During conversations it was common for him to talk about numerous things of a sexual nature, which I found offensive I would tell him to stop and he would. During the time he worked at the restaurant I was never informed by any of the junior staff about any improprieties by him towards them.

Around the early 2000s [CFI] and his company was still approved by [the restaurant chain]. At the time a [restaurant] consultant approached my father [who was the restaurant owner.] I recall at the time that I was also there. [The consultant’s] job was to oversee any stores in the area, provide advice and reviews on the restaurants. When he approached my father he said that [CFI] was no longer approved and we had to cease employing his company. I cannot recall the entire conversation but I do recall that he was very direct in his approach to us. As a result of what [the consultant] told us we stopped using CFI and his electrical company at the restaurant.

Documents provided by Scouts Australia

26. CFI’s 2014 application for adult membership to Scouts Australia shows a No crossed in response to the question: ‘Have you ever been charged, reported, or defended in a court of law any allegation of sexual abuse, assault or a sexual offence of any kind in Australia or in another country?’

27. An email dated 30 October 2014 from friends of the first complainant to the Regional Commissioner of Scouts Australia expresses concern at the sighting of the applicant with a scouting group. There was some suggestion that the applicant was wearing a Scout uniform (although the applicant has denied that he has ever worn a Scout uniform). In light of the charges that had earlier been made against the applicant and on the basis of information they had received from the first complainant, the authors of the email wished to notify the Scouts Australia of the earlier charges against the applicant ‘simply for the safety of.. children.’

28. Also contained on file are notes of a call to Scouts Australia from the uncle of the first complainant advising of her nephew’s sighting of the applicant at a Scout outing.

CFI

29. In an affidavit prepared for these proceedings, CFI confirmed that he is the father of two sons aged 12 and 13 years. He gave a history of his work as an electrician and details of the company he owns. He confirmed that he has installed, replaced and repaired electrical equipment in fast food premises, restaurants, schools and TAFE institutions.

30. He stated that he had been involved in Scouts Australia as a parent volunteer and had coached his son’s football team. He clarified that he did not wish to be involved in Scouts Australia as a scout leader, but simply as a parent helper.

31. The applicant gave evidence at his trial in relation to the allegations made by the first complainant. He confirmed that two of the ten charges were withdrawn and that a verdict of not guilty was returned by the jury in relation to the remaining charges. He denied the allegations made against him.

32. In relation to his second trial, CFI denies ever having met the second complainant. He confirmed that the charges were withdrawn and the matters dismissed when the second complainant refused to complete his oral evidence.

33. In oral evidence before the Tribunal, the applicant confirmed that whilst he had been working at the second complainant’s place of employment (‘the restaurant’) at the time the offences were alleged to have happened, he had no memory of ever meeting the second complainant.

34. He agreed that whilst it was his habit only to employ apprentices with a driver’s licence, he had employed a 16-year-old apprentice on one occasion. He agreed that his statement was incorrect in stating that the apprentice was 17 years old at the time and had a driver’s licence.

35. He agreed that the restaurant owner had terminated his services as an electrician. The applicant agreed that whilst he was still friends with the restaurant owner, he had not sought to clarify with the owner why he had terminated the applicant’s services at that time and that he had never spoken to the owner about his 2008 statement.

36. The applicant told the Tribunal that he could not recall ever speaking in a sexual manner around the restaurant manager and that, despite having a personal friendship with her, he had never spoken to her about the contents of her 2009 statement. He agreed that whilst he knew her ‘on a personal level’ and had attended her wedding, he had never sought to find out why his services had been terminated.

37. He agreed that in the workplace he would engage in ‘girls and bloke talk’ that might include talk about sex and physical attributes. He agreed that these discussions might occur in front of apprentices.

38. The applicant agreed that in his application for adult membership to the Scouting movement, he crossed No to the question ‘Have you ever been charged, reported, or defended in a court of law any allegation of sexual abuse, assault or a sexual offence of any kind in Australia or in another country?’ He told the Tribunal he ticked No because although he knew he’d been charged with such an offence, he’d been found not guilty. He said that he hadn’t understood the question at the time. He denied minimising his behaviour for his own advantage.

39. He agreed that he had engaged in oral sex with a male during a group sex session and agreed that he had been sexually aroused at the time but denied any sexual desires for men.

Dr Emma Collins

40. Dr Collins is a clinical and forensic psychologist who provided a report for the applicant, which is dated 15 February 2016.

41. According to Dr Collins, the applicant advised that he had once participated in a group sex session where he had oral sex with a male. Most of his sexual partners, however, have been women.

42. Dr Collins notes that the applicant’s current alcohol consumption falls within the hazardous range and that he has a prior history of problem gambling.

43. Because the applicant has no convictions for sexual offences, Dr Collins used the Risk for Sexual Violence Protocol (RSVP) assessment tool rather than the Static-99 assessment.

44. According to Dr Collins, protective factors with regard to the applicant’s future risk include the dismissal of all sexual charges against him, his lack of criminal record, his evidence of long-term relationships and lack of history of child abuse.

45. Factors that are seen to increase the applicant’s risk of a sexual offence are some maladaptive stress management, given the history of hazardous alcohol use and gambling behaviour; two sets of sexual allegations having been made against him and his tendency to keep problems to himself.

46. Dr Collins placed the applicant in the low range for sexual reoffending and expressed the opinion that, based on the risk assessment performed, the applicant does not pose a specific risk to children.

47. In oral evidence before the Tribunal, Dr Collins agreed that the similarity between the separate allegations of sexual assault was of concern but noted the outcome of both proceedings, namely that the charges had been dismissed. She agreed that because of the similarity of the allegations, it was possible that there could be some truth to the allegations. She told the Tribunal that she couldn’t think of a case of a person accused of similar allegations by two complainants who were unknown to each other. She agreed that the similarities in the two cases included the age of the complainants, that both allegations were in the context of the applicant’s work and that both allegations involved masturbation. She agreed that these similarities should ‘possibly’ be taken into account in the risk assessment and that, in these circumstances, perhaps a Static-99 might have been an appropriate tool to have used.

40. When directed to the statement of the restaurant owner that he had been told that the applicant had ‘flashed his penis’ in company while telling jokes, and the statement of the restaurant manager that it was not uncommon for the applicant to talk about numerous things of a sexual nature, Dr Collins agreed that these were possible indicators of problematic sexual behaviour.

41. She agreed that sexualised comments made in the workplace in the presence of adolescents could normalise sexual talk with adults and could potentially be used as a grooming technique. She agreed that it was problematic where such sexual talk occurred where an adult was alone with an adolescent or where secrecy was encouraged.

42. If Dr Collins were to find there was some merit in the allegations of sexual offences by the applicant, the Static 99 assessment tool would then apply and the applicant would have had a ‘moderate low’ rating of future sexual offences. She gave the view that the Static 99 assessment might appropriately be used where charges were dismissed not due to a jury finding but instead due to the withdrawal of a witness.

43. She agreed that the applicant’s failure to disclose that he had previously been charged with sexual offences could indicate a problem with self-awareness and insight and a tendency to minimise his past. She agreed that the applicant’s recent marriage breakdown and hazardous alcohol consumption were factors that would be seen to increase the applicant’s risk of a sexual offence. Were these issues to be coded on the RSVP assessment tool, Dr Collins gave the opinion that the applicant’s rating would either stay as low or increase to moderate.

References

52. The applicant provided references from the following people in support of his application for a working with children check clearance:

• the applicant’s general practitioner who states that he had no concerns with the applicant working with children, but also describes the applicant’s record as having no charges on it;

• a close friend of the applicant who describes the applicant as a loving father and hardworking electrician;

• a colleague and relative who each state their trust in the applicant and their belief in his innocence;

• the applicant’s family friends, who also are aware of the charges, who believe in his innocence and who trust him to care for their children.

Consideration of the evidence

53. The Tribunal "must consider" those factors set out in section 30 (1) of the Act in determining an application under Part 4 of the Act, which includes this application. In determining a risk assessment, the Children's Guardian "may consider" matters set out in section 15 (4) of the Act. Both subsections address the same considerations using slightly different language. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to consider both sections 30 (1) and section 15 (4) of the Act.

54. In BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523, Beech-Jones J discussed the task of assessing risk under the Child Protection (Working with Children) Act 2012. Beech-Jones J noted the assessment of risk was not limited to the circumstances for which an applicant sought a clearance and whether he/she posed a “risk to the safety of children” in those circumstances. Instead, an applicant was “subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area.” [27]

55. Beech-Jones J went on to consider the approach that should be taken in a risk assessment where allegations of an applicant having sexually abused a child had been made, but no conviction had been recorded. He noted that while the Tribunal was not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J (i.e. warning against the use of “inexact proofs” in the context of making serious findings of fact) [29].

56. Beech-Jones J said “significant guidance as to the approach to be adopted” in such cases could be derived from the High Court’s decision in M v M[1988] HCA 68; 166 CLR 69. Having cited the remarks of the High Court in M v M (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ), Beech-Jones J said, subject to two matters and the caveat about the applicability of Briginshaw, the reasoning in M v M was applicable to fact finding and the process of risk assessment that the Tribunal undertakes [30]. The two matters he referred to were (a) that the Act was not concerned with “unacceptable risks” but “real and appreciable risks”, and (b) in cases such as BKE v Office of the Children’s Guardian & Anor (supra), a disqualified person under subs 18(1) of the Act, the onus was on the applicant to rebut the presumption that he did pose a real and appreciable risk to the safety of children.

57. The last point does not apply in this application, as the applicant is not a disqualified person and there is no statutory presumption that he poses a risk to the safety of children. However, the Tribunal must nevertheless make an assessment of risk to the safety of children having regard to the material before it. Beech-Jones J summarised the Tribunal’s fact finding task as follows:

“33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

58. Set out below is the evidence and the Tribunal’s findings in regard to these matters and other matters raised during the course of the hearing in so far as they are relevant to the factors set out in subs 30(1) of the 2012 Act.

59. The evidence will be considered under each of the following subheadings. Each of the subheadings combines the considerations under section 15 and section 30 of the Act.

(a) The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused an assessment and a refusal of a clearance or imposition of an interim bar

60. The risk assessment was triggered by charges against the applicant that between 1999 and 2007 he had committed sexual offences against two boys under the age of 17 years. In April 2009, the applicant was found not guilty of ten charges made against him in relation to the first complainant. A directed acquittal was made in relation to the remaining two charges. In September 2009, four counts of indecent assault and one count of commit an act of indecency against the applicant were dismissed when the second complainant refused to continue to answer questions in cross-examination.

(b) The period of time since those offences or matters occurred and the conduct of the person since they occurred

61. The alleged offences occurred between 1999 and 2007. Since this time, the applicant has not come to police attention.

(c) The age of the person at the time the offences or matters occurred

62. The applicant was born in 1971. At the time of the first complainant’s allegations, the applicant was 31 to 36 years old. At the time of the second complainant’s allegations, the applicant was 28 to 29 years old.

(d) 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

63. The first complainant was between 13 and 17 years, although most alleged offending is said to have occurred when he was 13 to 14 years old. The second complainant was 15 years old at the time of the alleged offending. Both boys were vulnerable due to their age.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person

64. The applicant was 21 years older than the first complainant and 13 years older than the second complainant. The applicant was regarded by the second complainant as a contractor frequently employed by his parents. The applicant was known to the second complainant as a regular contractor at the restaurant where the second complainant was employed.

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

65. The applicant accepts that the complainants were both children at the relevant times.

(g) The person's present age.

66. The applicant is 45 years old.

(h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

67. The applicant has no other relevant record. He has not been the subject of any complaints nor come to the attention of police or the Department of Family and Community Services notwithstanding his involvement in his children’s football games and Scouting activities.

(i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

68. It is difficult to consider these issues in the absence of a finding by the Tribunal that the conduct the subject of the charges actually occurred. The allegations are serious and, if true, disclose a potential pattern of conduct of grooming and sexual behaviour against boys vulnerable due to their age. If true, given that the applicant continues to work as a contractor in institutions including schools, and wishes to have continued involvement in Scouts Australia, the likelihood of him having contact with children would be great. If grooming or sexually predatory behaviour were to occur in the future, the impact would be significant on a victim.

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

69. In addition to giving evidence himself, the applicant has produced a series of references from people aware of the charges that were laid against him and who would have no concerns about the applicant caring for their children.

(k) Any other matters that the Children's Guardian considers necessary

70. The Children’s Guardian has not requested the Tribunal to consider any other matters.

Conclusion

71. The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children?

72. The Tribunal is unable to make a positive finding as to whether the criminal allegations occurred. The Tribunal finds that the evidence before it is not sufficient to establish those allegations to the civil standard. That is not to suggest that the allegations did not occur or, in the alternative, did occur, but rather that the Tribunal is unable to make a positive finding, on the balance of probabilities, either way. Therefore whether the assaults occurred, or did not occur, remains open.

73. Having regard to all of the material before the Tribunal, however, including the pattern of the allegations and the similar theme running through the allegations, the Tribunal is satisfied that the applicant poses a real and appreciable risk to children.

74. The number, nature and similarity of the allegations, are relevant when assessing risk. Whilst there can be an absence of a positive finding in respect of various allegations, the nature of the allegations may be indicative of a pattern of behaviour. While the applicant has not been found guilty of any offence in regard to these matters, the circumstances giving rise to the charges and complaints are nevertheless relevant to the issue as to whether there exists a risk to the safety of children if the applicant were to be granted a working with children check clearance.

75. In relation to the second complainant, the charges were dismissed when the second complainant refused to complete his evidence, rather than as a result of a finding of not guilty by the magistrate. Accordingly, the evidence was not tested by the magistrate.

76. In relation to the District Court trial, the jury who returned verdicts of not guilty was not aware that earlier allegations of a similar nature had been made against the applicant by another complainant (the second complainant) in circumstances where the first and second complainants were unknown to each other. The Tribunal accepts the following similarities in relation to the separate sets of allegations:

• both complainants were male children between the ages of 13 and 14 at the time of the first alleged offences;

• both complaints involved the applicant discussing penis size, looking at the boy’s penis, then touching the boy’s penis;

• both sets of allegations were made in the context of the applicant’s work.

77. The allegations are serious. When the Tribunal considers them together, taking into account their similarity despite the fact that the complainants were apparently unknown to each other, the allegations as a whole give rise to a concern such that the Tribunal cannot be comfortably satisfied that the sexual offences did not occur.

78. In considering whether the applicant poses a real and appreciable risk to children, the Tribunal is mindful of the findings by Beech-Jones J in BKE v Office of the Children’s Guardian & Anor (supra) that even where the Tribunal cannot be satisfied that an allegation of abuse has been made it, it may nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

79. As set out below, the Tribunal accepts that there are similarities between the allegations made by the two complainants who, on the evidence, were unknown to each other. The first complainant stated that whilst the applicant was working at his father’s tavern, the applicant initiated sexual talk with him that led to the applicant showing him his penis. The second complainant stated that while the applicant was working as his place of employment, the applicant talked to him about sexual things and showed him his penis.

80. In his statement, the restaurant owner describes being told that during a conversation with colleagues, the applicant had taken out his penis. He also said that ‘alarm bells rang for him’ and he terminated the applicant’s services.

81. Although the applicant agreed that he and the restaurant owner remained friends, he told the Tribunal that he had never asked him to explain his statement or to explain why his services had been terminated or to request his support in these proceedings. On this basis, it is an inference open to the Tribunal that the evidence able to be provided by the restaurant owner would not have assisted the applicant.

82. The restaurant manager made a statement that the applicant would commonly talk to her about things of a sexual nature that could become offensive, such that she would tell him to stop. She also spoke of a conversation with the consultant of the restaurant, who had strongly conveyed a wish that the applicant be barred from future work at the restaurant, which had persuaded the owner of the restaurant to terminate the applicant’s services.

83. The applicant agreed that he was friends with the restaurant manager; indeed he had even attended her wedding. Despite this, he has never asked her why his services at the restaurant were terminated, nor was she requested to clarify her statement that the applicant would have conversations of a sexual nature that could become offensive. In the absence of such evidence, the inference can be drawn by the Tribunal that anything she could have said would not have assisted the applicant. In the absence of any clarifying evidence, the Tribunal has given weight to the restaurant manager’s statement that the applicant had a tendency to speak sexually in a way that could become offensive.

84. The applicant himself agreed that talk with his workmates could become sexual and that this talk might occur when apprentices were around.

85. No evidence has been produced to clarify the statement by the restaurant owner that he had heard ‘alarm bells ringing’ and terminated the applicant’s services. ‘Alarm bells ringing’ does not accord with the applicant’s suggestion that his services had been terminated due to a dispute over a bill. The lack of further clarifying evidence from the restaurant owner as to why the applicant’s services were terminated does not assist the applicant in these proceedings.

86. After giving weight to the restaurant manager's statement about the applicant’s sexual comments, the Tribunal is satisfied, on the balance of probabilities, that the termination of the applicant’s services at the restaurant was not as a result of a billing dispute as he claims but because a consultant of the restaurant chain instructed the restaurant to cease employing the applicant because he "was no longer approved". While this is not evidence to support the complainants’ allegations of sexual misconduct, the Tribunal finds that it contradicts the applicant's reason for the severance of his services and therefore raises questions about the credibility of his evidence.

87. The evidence discloses that the applicant crossed No in answer to the question ‘Have you ever been charged, reported, or defended in a court of law any allegation of sexual abuse, assault or a sexual offence of any kind in Australia or in another country?’ Whilst the question is wordy, the Tribunal does not accept that the applicant did not understand the question. Rather, on the evidence before it, the Tribunal is satisfied that the applicant knowingly failed to disclose on his application for adult Scout membership that he had been charged with sexual offences.

88. When asked to comment on the suggestion by the restaurant owner that the applicant had produced his penis in conversation and the statement by the restaurant manager that the applicant would engage in sexual talk that could become offensive, Dr Collins agreed that these examples might show a sexual immaturity on the applicant’s part and were possible indicators of problematic sexual behaviour. She also agreed that the applicant’s failure to disclose that he had previously been charged with sexual offences could indicate a problem with self-awareness and insight and a tendency to minimise his past. She agreed that the applicant’s recent marriage breakdown and hazardous alcohol consumption were factors that are seen to increase the applicant’s risk of a sexual offence. The Tribunal gives weight to Dr Collins evidence that, were these issues to be coded on the RSVP assessment tool, the applicant’s rating might increase from low to moderate.

89. The Tribunal has considered the evidence as a whole and, in particular, those issues set out above – namely, the similarities of the allegations made by two complainants apparently unknown to each other; the statements of the restaurant manager and the restaurant owner; the applicant’s failure to disclose in his application for Scout membership that criminal charges had been lodged against him; and the revised assessment by Dr Collin in the light of the applicant’s possible problematic sexual behaviour, his tendency to minimise, his recent marriage breakdown and hazardous alcohol consumption. On the basis of all the material before it, the Tribunal is satisfied that the applicant poses a real and appreciable risk to children.

Order

• The decision of the Children’s Guardian dated 23 September 2015 to refuse to grant the applicant a Working with Children check clearance is affirmed.

• The application for review of the decision of the Children’s Guardian filed 21 October 2015 is otherwise refused and dismissed.

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: 12 May 2016