CFW v Children's Guardian

[2017] NSWCATAD 102

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CFW v Children's Guardian [2017] NSWCATAD 102
Hearing dates:	27 February 2017
Date of orders:	31 March 2017
Decision date:	31 March 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	E Connor, Senior Member M Bolt, General Member
Decision:	(1) The decision of the Children’s Guardian dated 12 June 2015 to refuse to grant the applicant a Working with Children Check clearance is set aside. (2) In substitution of that decision the respondent is to grant the applicant a Working with Children Check clearance.
Catchwords:	ADMINISTRATIVE LAW- whether applicant poses a real and appreciable risk to children – whether applicant intentionally sought out child pornography – whether in absence of finding applicant poses a risk
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1990 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Commission for Children and Young People v FZ [2011] NSWCA 111 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) [1981] 3 ALD 88 Office of Children’s Guardian v CFW [2016] NSWSC 1406 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CFW (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: B Fogarty (Applicant) P Singleton (Respondent)   Solicitors: Linda Rogers Solicitor (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00378405
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

The decision has been amended please see end of decision for details.

REASONS FOR DECISION

Background

1. On 8 October 2014 the applicant, known as ‘CFW’ in these proceedings, applied for a Working with Children Check clearance from the respondent, the Children’s Guardian.

2. A risk assessment was undertaken pursuant to section 15(1) of the Child Protection (Working with Children) Act 2012 (“the Act”) on the basis that CFW was subject to an assessment requirement referred to in Schedule 1 of the Act.

3. The matter which triggered the risk assessment was that in May 2005 the applicant was charged with one count of knowingly possessing child pornography under s 578B of the Crimes Act 1900. It was alleged that between 2002 and 2004 he had viewed and downloaded prohibited material from various websites. The matter went to court in 2006 and the applicant was not convicted because the Crown could not rebut beyond reasonable doubt the assertion that he may have inadvertently saved the images on his computer in the course of downloading adult pornography.

4. On 12 June 2015 a notification letter was sent to CFW by the Children’s Guardian informing him that his application for a Working with Children Check clearance was refused and attaching Reasons for Decision.

5. On 8 July 2015 the applicant filed in the Tribunal an application for administrative review under section 27 of the Act of the decision of the Children’s Guardian, made on 12 June 2015, to refuse a Working with Children Check clearance. The respondent was satisfied, following a risk assessment, that the applicant poses a risk to children.

6. On 6 August 2015 the Tribunal stayed the application of the barring order made by the Children’s Guardian.

7. On 12 November 2015 the Tribunal conducted a hearing and on 20 April 2016 ordered that the decision of the Children’s Guardian was set aside and that the respondent was to grant the applicant a Working with Children Check clearance.

8. The respondent appealed the 20 April 2016 decision to the Supreme Court of New South Wales. The hearing of the appeal was on 15 September 2016 before Harrison J.

9. On 5 October 2016 the Supreme Court delivered its judgment in which it set aside the orders of the Tribunal made on 20 April 2016 and remitted the matter to the Tribunal, differently constituted, to be dealt with according to law.

10. The applicant filed another stay application on 22 November 2016 which was heard before the Tribunal on 15 December 2016. This stay application was dismissed and the applicant therefore remains without a Working with Children Check clearance and is prevented from working in “child-related work”: section 6 and section 8 of the Act; clause 7 of the Child Protection (Working with Children) Regulation 2013.

11. This review is a re-hearing of the application lodged by CFW on 8 July 2015 seeking administrative review under section 27 of the Act of the decision of the Children’s Guardian, made on 12 June 2015, to refuse a Working with Children Check clearance.

12. The applicant is applying for a Working with Children Check clearance in order to be able to continue his employment assisting job seekers age 17 years and over to find work. He is currently on a supervision management plan with his employer to ensure he is not assigned any student who is 17 years of age.

Do the 2015 amendments to the Act apply?

13. The Act came into force on 15 June 2013 and was amended by the NSW Parliament on 28 September 2015. The amendments commenced on 2 November 2015. The amendments inserted s 15 (4A) and s 30 (1A) into the Act. If these amendments were to apply to these proceedings, the Applicant would be required to meet an additional test that did not apply at the time of making his application to the Respondent. The additional test that is provided by s 30 (1A) is:

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a)   A reasonable person would allow his or her child to have direct contact with the affected person that was not supervised by another person while the affected person was engaged in any child-related work, and

(b)   It is in the public interest to make the order.

The transitional provisions contained at Schedule 3 of the Act have the effect that the amendments do not apply to an application made before the amendments came into effect. The Applicant lodged his application for a Working with Children Check clearance on 8 July 2015 before the amendments commenced operation and as a result the amendments do not apply to these proceedings.

The evidence relied upon in the hearing

14. The applicant relied upon the following documentary material:

1. Documents filed on 8 July 2015 including Application; Notice of Final Decision of Respondent; and Reasons for Decision of Respondent to refuse a Working with Children Check clearance – Exhibit AA1;

2. Affidavit of the applicant dated 28 July 2015 – Exhibit AA2;

3. Affidavit of applicant’s partner dated 13 October 2015 – Exhibit AA3;

4. Affidavit of applicant dated 14 October 2015 – Exhibit AA4;

5. Report of Ms Caroline Hare, Forensic Psychologist, dated 18 September 2015 – Exhibit AA5;

6. Character reference dated 14 October 2015 – Exhibit AA6;

7. Reports of Mr J de Laurence, Psychologist, dated 9 November 2015 and 30 November 2016 – Exhibit AA7;

8. Statement of CFW dated 28 November 2016 filed 5 December 2016 – Exhibit AA8; and

9. Updated psychological report of Ms Caroline Hare dated 8 December 2016 – Exhibit AA9.

15. The respondent relied upon the following documentary material:

1. Respondent’s Tender Bundle filed by the respondent pursuant to Section 58 of the Administrative Decisions Review Act 1997 on 24 July 2015 – Exhibit RR1;

2. Further documents filed by the respondent pursuant to Section 58 of the Administrative Decisions Review Act 1997 on 27 July 2015 – Exhibit RR2;

3. Further documents filed by the respondent on 5 August 2015 – Exhibit RR3;

4. Further documents filed by the respondent on 30 October 2015 comprising Section 31 responses – Exhibit RR4; and

5. Further documents filed by the respondent on 13 December 2016 –including Section 31 responses - Exhibit RR5.

16. The applicant filed written submissions in relation to the re-hearing on 6 February 2017 (for convenience referred to as Exhibit AA10). He gave oral evidence and was cross-examined on 27 February by Mr P Singleton, counsel for the respondent. The applicant also answered questions put to him under re-examination by his counsel, Mr B Fogarty. The respondent relied upon updated submissions filed on 20 January 2017 (for convenience referred to as Exhibit RR6).

Legislative Provisions relevant to the decision

17. The role of the Tribunal in these proceedings is to decide what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. In undertaking that role the primary issue for us to decide is whether, as at the date of hearing, the applicant “poses a real and appreciable risk” to children.

18. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows:

Safety, welfare and well-being of children to be paramount consideration

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.

19. There is no definition of “child abuse” contained in the Act. The Children’s Guardian, who is the respondent to these proceedings, is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows:

Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.

Maximum penalty: 200 penalty units.

20. The object of the Act is set out in section 3 which provides:

Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

21. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."

22. Pursuant to section 14 of the Act there is a requirement to conduct an assessment of the applicant. The section provides as follows:

14 Assessment requirements

A person is subject to an

"assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.

23. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act.

24. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The object of the Act is not to impose additional punishment on an applicant but to minimise possible risks to the safety of children.

25. In this administrative review, neither party bears the onus of proof. There is no presumption that the applicant poses a risk to children as would be the case pursuant to section 28(7) of the Act if he were a disqualified person.

26. As previously stated, the primary issue for us to decide is whether, as at the date of hearing, the applicant “poses a real and appreciable risk” to children.

27. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.

28. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

Applicant’s evidence

29. The applicant adopted his affidavits sworn 28 July 2015 (Exhibit AA2) and 14 October 2015 (Exhibit AA4) and his statement dated 28 November 2016 (Exhibit AA8) into his evidence in chief.

30. The applicant was cross examined at length by Mr Singleton about the security arrangements relating to the pool room in which the computer on which the pornographic material was found was located; the use of his credit cards in relation to the purchase of material from websites; his awareness of a major police investigation in the area at the time regarding child pornography; the re-formatting of his computer on two occasions, and the reasons for this; and the disconnection of his internet service.

31. The applicant asserted that the re-formatting of the computer had nothing to do with him hearing about police investigations into child pornography and occurred because the computer was running badly. He also asserted that he encountered child pornography images on the computer when looking for information about conspiracy theories on ‘shared websites’ and that at the time he was socialising with people with similar interests and using a lot of cannabis. The applicant expressed embarrassment about his then interests in theories such as ‘crop circles’ and UFO’s and stated that he has a tattoo that he would now like to have removed.

32. The applicant stated that other people could have accessed his computer when he was at work, however he did not strongly assert that some other person was responsible for the child pornography being on his computer. He stated that although nobody had direct access to his credit card details, they were written down in his diary that was kept near to his computer.

33. The applicant was asked questions about the operating system on his computer and whether or not he intended to deceive the police by installing a new system. The applicant asserted that he kept the same operating system and that he did not intend to deceive the police. At the request of the applicant’s counsel, the Tribunal was granted privilege in respect of self-incrimination in relation to this evidence pursuant to section 128 of the Evidence Act 1995 (NSW) and a certificate will be issued by the Registry in due course.

34. Counsel for the respondent put to the applicant that he was offering two explanations for the downloading of child pornography on his computer. Firstly, that the downloading was done by another person and, secondly, that it was done by him accidentally. The applicant agreed.

35. Mr Singleton asked the applicant a number of questions about the use of his credit cards to purchase the downloaded material and why he had disputed some transactions but not others. The applicant responded that he was unable to get straight answers from the banks at the time and that he did not cancel the cards because he was ‘trying to get to the bottom of the transactions’ and was informed that the charges could continue even if he cancelled the cards. The applicant was also asked a number of questions about overseas transaction fees on his credit card statements and why these had not drawn his attention to those transactions he later asserted were not made by him. The applicant asserted that he may not have noticed because he was purchasing other material from overseas websites.

36. The applicant asserted that he may have inadvertently accessed child pornography when seeking to access adult pornography and conspiracy theory material. He denied deliberately seeking out child pornography. When asked why he went to shared websites rather than dedicated adult pornography websites, the applicant stated that shared websites have more ‘amateur’ adult pornography which he found more appealing and ‘real’ than the ‘glammed and made-up’ images found on professional adult websites.

37. The applicant stated that he had visited an adult ‘dress-up’ shop with his current partner on one occasion and that they had watched an adult movie together on one occasion early in their relationship that ‘did not go down well’. This took place prior to them living together.

38. Under re-examination by Mr Fogarty, the applicant gave evidence that he is no longer interested in conspiracy theories and that he was using a lot of cannabis at the time. The applicant stated that an operating system is a piece of software that operated the computer such as ‘Windows’ and when his computer was re-formatted it still had the same operating system.

Evidence of applicant’s partner (witness 2)

39. The witness adopted her affidavit dated 13 October 2015 (Exhibit AA3) into evidence. She gave evidence by telephone under cross examination that she has not seen the applicant watch pornography since they moved to their current address. She stated that she ‘vaguely remembered’ watching an adult movie in 2008 before they lived together, stating that ‘it was put on and that was the end of it’. She said that she was visiting the applicant at his residence and it was a ‘spur of the moment’ decision. The witness was unable to recall where the movie came from and believed it may already have been in the possession of the applicant. The witness stated that they do not visit adult shops and she has only a very vague recollection of the night it is asserted they watched a video together. In response to a question by the Tribunal, the witness stated that she and the applicant would have had a couple of glasses of wine that night, which was shortly after they commenced dating.

Evidence of character witness (witness 3)

40. Witness 3 is a senior government lawyer who states in his letter dated 14 October 2015 (Exhibit AA6) that he has known the applicant since he was a teenager.

41. Under cross examination by telephone witness 3 stated that the letter was written for the purposes of these proceedings. Its purpose is twofold. It attests that the applicant is a ‘fit and proper person’ to work with children and is also a general commentary about his character. The witness stated that if he held a belief that the applicant had deliberately downloaded child pornography material he would not have given him the reference. The witness was also asked some questions about his recollections at the time of the criminal proceedings about the explanations offered by the applicant for the downloading of child pornographic material on his computer.

Expert Evidence of Ms Hare, psychologist (witness 4)

42. Witness 4, Ms Caroline Hare, is a forensic psychologist. Her reports dated 18 September 2015 (Exhibit AA5) and 8 December 2016 (Exhibit AA9) were adopted into her evidence in chief.

43. Mr Singleton cross examined Ms Hare about whether the outcome of her reports would have been different if the applicant had been convicted of the offences relating to child pornography with which he was charged. She responded that this may have led to some other risk factors being identified, including minimisation, but that this is not the most significant risk factor and is only one of a number of such factors. Ms Hare noted that the majority of the risk factors identified in relation to the applicant would not change because they are being managed effectively. The applicant is able to identify things that were going on in his life at the time and, even though he denies committing an offence, he is aware of the risk factors and is addressing them. Protective factors include his having healthy sexual interests and an attraction to adult women.

42. Ms Hare acknowledged that in forming her views she relied on what the applicant told her, but also noted that there have been no other concerns at any other time about the applicant’s conduct.

43. In response to a further question from Mr Singleton as to whether her conclusion would require re-consideration if the applicant had committed the offence, Ms Hare stated that this would not necessarily weigh against him. She conceded that a finding that the applicant had committed the offence would be neutral or negative but would not improve the applicant’s position.

44. Mr Singleton asked Ms Hare a number of questions about paedophilic disorder and she agreed that people who seek out images of child pornography may be diagnosed with this disorder. However she also noted that there are many men who access child pornography who are not diagnosed as paedophilic. One of the diagnostic determinants is whether the person is sexually attracted to children.

45. Ms Hare noted that the applicant has been consistent in his account that he downloaded the material accidentally and she also recalled him saying that it was possible somebody else had accessed his computer and downloaded the material.

46. Ms Hare opined that if something has definitely happened (such as the applicant deliberately downloading the material), it increases the risk the person poses. However it does not mean that the person may not still pose a low risk, depending on the risk factors at the relevant time.

47. Under re-examination, Mr Fogarty asked Ms Hare whether her assessment of the applicant’s current risk to children would be different if it was assumed that the applicant had been convicted of the offences which led to the charges in 2005, but there had been no convictions since and no further suspicions of him seeking to access child pornography. Ms Hare responded that the only risk factor for the applicant was in relation to his mental health and that he has engaged in treatment and would seek to do so again if necessary. This factor is therefore being managed. She does not believe that a conviction would have changed that risk factor.

48. Mr Fogarty directed Ms Hare to paragraph 38 of her report dated 18 September 2015 (Exhibit AA5) and noted that the applicant had recognised the factors listed there as contributing to his inadvertent viewing of child pornography in the context of his increased likelihood of accessing adult pornography. When she was asked if these factors would be different if the applicant had deliberately accessed child pornography, Ms Hare again asserted that the risk factors would remain unchanged. She noted that the only thing that would be missing in the changed scenario would be a clear explanation as to why the applicant had deliberately looked at child pornography images, but that this would not necessarily increase the risk he poses.

49. Ms Hare stated that the opinion expressed by her in paragraph 45 of her report would be unlikely to change if the applicant had been convicted of the offences. The overall risk he poses would remain low as a result of his risk factors being managed. Ms Hare noted that the applicant is managing the risk factors and that further protective factors are now in place. The applicant has been in a stable relationship for 8 years and has changed his lifestyle considerably.

50. Ms Hare was asked further questions about paedophilic disorder as defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) which requires a person to be sexually attracted to pre-pubescent images of children to be attributed as having the disorder. Ms Hare stated that the applicant did not have such an attraction.

Section 30 (1) considerations

53. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. These are similar to those taken into account by the Children's Guardian under section 15 (4) of the Act for the purposes of carrying out their risk assessment.

54. Section 30 of the Act provides as follows:

30 Determination of applications and other matters

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

(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.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Note: Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

(a) The seriousness of the offences that caused a refusal of a clearance

55. The refusal of the respondent to grant a clearance to the applicant was as a result of an adverse risk assessment. In May 2005 the applicant was charged with the (then) offence of possessing child pornography under s578B of the Crimes Act 1900. The matters were serious offences which attracted a possible custodial sentence.

56. Approximately 400 files depicting child pornography were recovered from the unallocated space within the applicant’s computer. The applicant was not convicted because the Crown could not rebut the assumption beyond reasonable doubt that the applicant may have inadvertently saved the images while downloading adult pornography. The magistrate dismissed the charge, but commented that the actions of the applicant were ‘very suspicious’.

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

57. The matters referred to in the risk assessment occurred in the period from 2002 to 2004, approximately 12 to 14 years ago.

58. Since that time the applicant has come to the attention of authorities on one occasion when he pleaded guilty to driving with a low range blood alcohol level in 2006. He was conditionally discharged on a good behaviour bond of 12 months.

59. Apart from the incident referred to in the paragraph above, the applicant has since that time maintained a stable relationship, parented a step-son, been gainfully employed and actively participated in various community not-for- profit activities.

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

60. The applicant was approximately 30 to 32 years old when the matters relevant to section 30 (1) (a) are alleged to have 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

61. The ages of the child victims depicted in the images the subject of the charges were noted by the police to be less than sixteen years.

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

62. The ages of the victims are unknown and there was no relationship between the victim and the applicant. To the extent that the age difference can be estimated, it was at least 17 years.

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

63. The applicant does not dispute that the victims featured in the images which were the subject of the charge against him were children.

(g) The person’s present age

64. The applicant is now 44 years of age.

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

65. The applicant does not have any criminal convictions. He received a conditional discharge in relation to a low level drink driving offence which was proven. It did not proceed to a formal conviction and the respondent concedes that it is not a matter of significance in this case.

66. The respondent concedes in written submissions that if the applicant did not access child pornography, or did not do so deliberately or with disregard to the interests of children, there is nothing to warrant refusal of a clearance.

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

67. The evidence of the expert witness, Ms Hare, is that the likelihood of the applicant offending is low and that he has no greater likelihood of being charged with child pornography offences than any other adult member of the community.

68. Counsel for the applicant submitted that, given the trauma that the applicant has suffered as a result of his experiences with the police and court proceedings, he is less likely to again inadvertently engage in such conduct and therefore less of a risk than any other adult member of the community.

69. The respondent asserts that there is a real and appreciable risk that the applicant is a paedophile; that this can be a lifelong condition; and that, given there is no acknowledgement or management of the condition in the applicant’s case, there is an appreciable risk of him reoffending.

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

70. The applicant tendered the positive character reference provided by witness 3 who was cross examined by the respondent’s counsel. Evidence was given by the applicant’s partner in an affidavit and she was also cross examined by Mr Singleton by telephone. The applicant relied on two affidavits and a statement and was subjected to lengthy examination, cross examination and re-examination.

71. In written submissions the applicant notes that he has suffered trauma as a result of the police invasion of his home and developed anxiety and at times depression as a result of the traumatic events. It is submitted that the applicant has an unblemished work history and that the failure to grant him a clearance will have a crippling effect on his and his family’s financial circumstances.

72. The Children’s Guardian has not submitted that the applicant has failed to provide relevant information.

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

73. The Children’s Guardian did not make any additional submissions addressing those matters which the Children’s Guardian considers necessary.

Respondent’s submissions

74. The respondent filed written submissions on 20 January 2017. In those submissions it is put that the Tribunal should be satisfied on the evidence that on the balance of probabilities the applicant knowingly obtained access to child pornography or would conclude that there is a lingering doubt about whether or not he obtained such access, without any legitimate explanation of so doing.

75. The respondent submits that the knowing obtaining of access to child pornography indicates that the person obtaining the access is a paedophile which may be a life-long condition, and that paedophiles pose a real and appreciable risk to the safety of children.

76. In oral submissions Mr Singleton stated that if the Tribunal is satisfied that the applicant did not knowingly access child pornography, then the respondent ‘has nothing else on which to rely’. If the Tribunal finds that the applicant deliberately accessed child pornography, there is a significant risk factor and it follows that the applicant has lied to the Tribunal, the police and Ms Hare and has minimised his behaviour.

77. Mr Singleton submitted that in the event that the applicant deliberately accessed pornography, Ms Hare ‘vacates her opinion’.

78. He also submitted that the applicant has variously relied on two different explanations according to the pressure on him at the time and that, on the balance of probabilities, the Tribunal should be satisfied that the applicant deliberately downloaded the material.

79. Mr Singleton submitted that the explanations given by the applicant for not challenging entries on his credit cards or cancelling the cards, and the proposition that other people found and used his credit cards, are not credible.

Applicant’s submissions

80. In written submissions filed on 6 February 2017 and at the hearing Mr Fogarty urged the Tribunal to have regard to all the material before it in deciding what is the correct and preferable decision. He submitted that on all the evidence before the Tribunal the applicant does not now pose a real and/or appreciable risk to the safety of any child sufficient to deny him the granting of a clearance.

81. Mr Fogarty submitted that counsel for the respondent has focused on only one of the section 30 (1) factors and that the Tribunal must consider all eleven factors in arriving at a decision. Mr Fogarty drew the Tribunal’s attention to paragraph 51 of the applicant’s written submissions in which Harrison J’s analysis of the test for assessing risk under s18(2) of the Act in his judgment relating to the appeal of the original hearing of this matter is set out. Mr Fogarty noted that His Honour states that if ‘a lingering doubt or suspicion remains’ this should count against the defendant (applicant in this matter), although it is not necessarily fatal to an applicant’s efforts to obtain a clearance.

82. Mr Fogarty noted that when he asked Ms Hare whether her opinion would have changed if the applicant had been convicted of the offence, she stated that she would still consider him to be of low risk.

83. Mr Fogarty submitted that, in considering all eleven section 30 (1) factors, timing is significant because the risk factors identified by Ms Hare are impacted by the applicant’s circumstances, which are now very different.

84. Mr Fogarty also submitted that it is not possible to infer from bank statements that the applicant was knowingly purchasing child pornography, given that the statements make no reference to the names of child pornography sites.

85. It was submitted by Mr Fogarty that the assertion by the respondent that the applicant is a paedophile is unfounded and salacious and contrary to the evidence before the Tribunal.

The Supreme Court judgment

86. In Office of the Children’s Guardian v CFW [2016] NSWSC 1406, the Supreme Court’s appeal judgment relating to the first hearing of this matter, at [12] Harrison J sets out the grounds upon which the Children’s Guardian appealed the decision as follows:

(1) The Tribunal misconstrued or misapplied s 18(2) of the Child Protection (Working with Children) Act 2012 and thereby failed to discharge the statutory functions and duties conferred or imposed by Part 4 of that Act and s 63 of the Administrative Decisions Review Act 1997 in that it put aside matters it considered to be “open” in determining whether the defendant posed a risk to the safety of children.

(2) Alternatively or further to ground (1), the Tribunal failed in the duty imposed by s 62(3) of the Civil and Administrative Tribunal Act 2013 to set out in its written statement of reasons the reasoning process that led it to the conclusions it made regarding the matters identified in ground (1).

(3) In determining the statutory question posed by s 18(2) of the Act, the Tribunal failed to have regard to mandatory relevant considerations, being:

(a)   the possibility that the defendant had engaged in the criminal or inappropriate conduct identified by the Tribunal at [103] of its reasons; and

(b)   the possibility that the defendant had intentionally sought out child pornography.

87. At [13] – [17], Harrison J sets out the statutory test for assessing risk under section 18(2) of the Act as follows:

[13] The test in s 18(2) of the Act requires a decision maker to consider whether a person ‘poses a risk to the safety of children’. ‘Risk’ in this context excludes ‘fanciful or theoretical risk’ and instead requires a decision maker to determine ‘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’: Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Children’s Guardian [2015] NSWSC 523 at [33].

[14]   The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has ‘no hesitation in rejecting the allegation as groundless’. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a ‘decisive impact’ on the outcome of the application.

[15]   The second proposition is that, even if no such ‘positive finding’ can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is ‘groundless’. The task to be performed in the context of the legislation considered in M v M was described at 77 to be to:

… determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interest of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they can about, will have a detrimental impact on the child’s welfare.

[16]   Even if not positively satisfied that the acts occurred on the balance of probabilities, if a ‘lingering doubt or suspicion remains’ then this should count against the defendant, although it is not necessarily fatal to the applicant’s efforts to obtain a clearance: see for example BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41].

[17]   A court or tribunal may make a finding of ‘real and appreciable risk’ even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left ‘open’, the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.

88. At [18] to [30] Harrison J identifies errors made by the Tribunal at the original hearing. His Honour states that the Tribunal does not expressly address what followed from its conclusion that the question of the veracity of the allegations against the applicant remains open and that the Tribunal was obliged to consider questions of risk that arose from all the facts. His Honour concludes that the Tribunal misapplied the test articulated in M v M in the context of section 18(2) of the Act:

Having determined that the veracity of the allegations made against the defendant “remain[ed] open”, the Tribunal should then have asked itself how that “open” conclusion, together with all the other material before it, bore upon the question of risk.

At [32] to [38] His Honour considers the materiality of the errors identified in ground 1 of the appeal and states that the Tribunal’s errors were significant to the conclusions reached and cannot be said to be immaterial. The Tribunal:

… appears to have erroneously foreclosed further analysis on the basis that the open finding was the end-point of any relevant inquiry.

By not conducting such further analysis, Harrison J found that the Tribunal failed to discharge the statutory functions and duties conferred or imposed by Part 4 of the Act and section 63 of the Administrative Decisions Review Act 1987 and granted the first ground for appeal made by the Children’s Guardian.

89. At [41] and [42] His Honour states that ground 2 of the appeal is ‘in essence an alternative foundation of ground 1’ and he does not consider it necessary to consider it further given his conclusions with respect to ground 1.

90. In relation to ground 3 of the appeal, Harrison J agreed with the Children’s Guardian that:

… each of the matters which the Tribunal should have considered, but failed to consider, bore directly upon the central question of risk to the safety of children: S 18(2) of the Act. It could not therefore be said, in those circumstances, that the failure was immaterial.

Consideration

91. As previously noted, the jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment should err on the side of caution while balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered. We are required to determine whether or not the applicant ‘poses a risk to the safety of children’, in accordance with section 18(2) of the Act.

Can any positive finding be made as to any alleged act of wrongdoing on the balance of probabilities or do we have no hesitation in rejecting the allegations as groundless?

92. It was common ground that the applicant had viewed child pornography. The primary issue was whether or not he was responsible for knowingly downloading and storing the material on his computer. Two explanations were offered by the applicant for the material being found on his computer. The first was that it had been downloaded by a third person who had access to the applicant’s computer and credit cards. The second was that the applicant may have inadvertently downloaded and saved the prohibited material while accessing adult pornography from shared websites.

93. When the Local Court heard the criminal matter in 2006, the magistrate concluded that he found it ‘difficult to accept’ the proposition that a third party had accessed the applicant’s computer without his knowledge, stating that:

I find this submission difficult to accept for it would mean that the same mysterious person supplied the defendant’s (applicant in these proceedings) correct credit card details by way of payment.

The magistrate went on to state that:

The actions of the defendant are very suspicious indeed but the crown cannot rebut the assertion that these images may have been saved to unallocated space on the defendant’s computer without his knowledge.

The onus of proof in these proceedings is the criminal one, namely beyond reasonable doubt and as I indicated, the actions of the defendant are highly suspicious but in the circumstances it is my view that I cannot be satisfied to this standard and the charge must be dismissed.

94. Mr Singleton asked the applicant many questions about the explanations he had offered. The applicant did not strongly assert that a third person must have been involved in the downloading of material and we agreed with the magistrate that it was difficult to accept the proposition that a third party was responsible. We find that, on the balance of probabilities, a third party was not involved in the downloading of the offending material.

95. The applicant has maintained throughout all proceedings that he did not knowingly download the prohibited material. The applicant elected to give evidence and answered questions put to him reasonably well during the Tribunal hearing. It was not unreasonable for him to struggle to answer some questions put to him given the period of time which has elapsed since the events took place. We are satisfied that the applicant was not being deliberately evasive.

96. We note that the magistrate in 2006 stated that he thought that the applicant’s answers to questions were ‘very vague and unconvincing’ and that ‘he rarely answered a question directly’. It is possible that the applicant has improved as a witness as a result of this being his second opportunity to give evidence to the Tribunal. We also note the assertions of the applicant in his interview with Ms Rachel Moore of Working with Children Check operations on 10 December 2014 (Exhibit RR1 Tab 3) and his statutory declaration dated 11 December 2014 (Exhibit RR1 Tab2) in relation to his application for a Working with Children Check clearance that he was traumatised by the events surrounding the execution of the warrant when police burst into his bedroom and strip searched him and the harsh interrogations he was subjected to by police, his family and friends. He states that he may have presented as vague and unconvincing as a result of the emotional distress the situation caused him. The applicant had no legal representation during the police interview and his explanation for his poor performance at that time is plausible. It is also uncontested that the applicant has at all times cooperated with authorities investigating the matters which led to this application.

97. The magistrate noted in his decision that evidence was led, and not disputed, that when viewing a site containing, for example, 500 images which contains both adult and child pornography, if an adult image is saved, the unallocated section of the computer will save all 500 images. The Tribunal did not have the benefit of an expert in computing during the hearing to provide evidence as to how shared websites work or to test the evidence as to whether or not all images on a site are downloaded to unallocated space on a computer if one image is saved.

98. The evidence that the applicant sought to clean his computer and replace the operating system is suspicious, however we cannot reject the possibility that, as claimed by the applicant, these actions were taken because his computer was not functioning properly.

99. After considering the evidence, we are not satisfied on the balance of probabilities that the applicant deliberately downloaded and saved the prohibited material on to his computer. However we do not reject the allegations as groundless. Whether or not the applicant deliberately downloaded and saved prohibited material therefore remains open.

In light of the open finding, on all the information and other material before the Tribunal, does the applicant pose a real and appreciable risk to children?

100. Given that we are unable to make a positive finding on the balance of probabilities as to whether or not the applicant deliberately downloaded and saved the prohibited material, we are required to then consider whether or not, on all the information and other material before the Tribunal, the applicant may still pose a real and appreciable risk to children: Office of the Children’s Guardian v CFW [2016] NSWSC 1406 [23] to [24].

101. We placed considerable weight on the evidence of the expert witness, Ms Hare. She was very clear both in her reports and under cross examination, that:

I consider the risk to children’s safety that (the applicant) presents is currently commensurate to the risk of any adult member of the community (i.e. a non-offender) harming a child. (Exhibit AA5, paragraph 38)

I am of the opinion that (the applicant) poses a low risk of harming a child either directly … or indirectly through accessing child abuse material (either intentionally or unintentionally). He evidences a range of positive coping mechanisms and he has maintained lifestyle stability for an extended period. (Exhibit AA9, paragraph 16)

We note that Ms Hare states that ‘low’ is the lowest risk category available on the risk protocol used by her to assess the applicant.

102. Importantly, as previously noted, under re-examination Mr Fogarty asked Ms Hare whether her assessment of the applicant’s current risk to children would be different if it was assumed that the applicant had been convicted of the offences which led to the charges in 2005, but there had been no convictions since and no further suspicions of him seeking to access child pornography. Ms Hare responded that the only risk factor for the applicant was in relation to mental health and that he has engaged in treatment and would seek to do so again if necessary. She does not believe that a conviction would have changed that risk factor. Ms Hare noted that the applicant is managing the risk factors and that further protective factors are now in place. This is critical evidence in light of the ‘lingering suspicion’ that the applicant may have knowingly downloaded the offending material.

103. We note that Mr Singleton submitted that Ms Hare stated she would ‘vacate’ her report if the alleged offence against the applicant had been proven. This is, of course, not the case, and Ms Hare explained very clearly what she considered the difference in the risk assessment of the applicant would have been if that had been the case, as is set out in the paragraph above.

104. A considerable period of time, at least 12 to 14 years, has elapsed since the incident of concern took place and, apart from a minor drink driving offence, the applicant has not come to the attention of any authorities during that time.

105. Ms Hare notes in her report that the period when the applicant was downloading pornographic material was in the aftermath of the death of a serious girlfriend caused by a drunk driver. During this period his use of cannabis and alcohol increased significantly, possibly in an attempt to self-medicate.

106. We note that the applicant has been in a stable relationship for 8 years and has changed his lifestyle considerably. At the time of the criminal charge he was grieving the death of a girlfriend; was interested in conspiracy theories and searching the internet in relation to these; and was smoking cannabis regularly. The evidence before the Tribunal was that he has been gainfully employed for many years in the job-search sector, has been parenting his step-son, and has been active in a range of voluntary work in the community. He has also provided evidence of successful child related employment from two employers. Evidence before the Tribunal is that the applicant had ten sessions with a clinical psychologist in 2013; that he has engaged in a range of strategies to manage his stress and anxiety; and that he saw another psychologist in 2015.

107. We also placed some weight on the reference provided by Witness 3, who, given his position as a senior government lawyer, is well aware of the importance of truthfulness in court proceedings. He was cross examined during the proceedings and re-iterated orally his confidence in the applicant. We note that he states in his written reference that he would happily leave his grandchildren in the applicant’s care.

108. We did not accept the assertion of the defendant that there is a risk that the applicant might be a paedophile, a condition which may be lifelong. Ms Hare gave evidence that in order to be diagnosed with a paedophilic disorder, a person must be sexually attracted to pre-pubescent images of children. Ms Hare stated that the applicant does not have such an attraction and there is no evidence to suggest otherwise before the Tribunal. Ms Hare noted in her first report that the applicant outlined feelings of disgust when he saw child pornography images and identified the catastrophic impact of child pornography on children involved.

109. Even though there is a ‘lingering doubt or suspicion’ that the applicant knowingly downloaded child pornography, we are satisfied that he does not pose a real and appreciable risk to children. Even if he did knowingly download child pornography 12 to 14 years ago, since then he has an almost unblemished record; he has sought assistance in relation to his mental health; he has significantly changed his lifestyle; and has been assessed by a forensic psychologist who is an expert in the area as not presenting a risk to children, even if he did commit the offence.

110. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant does not pose a risk to the safety of children and should therefore receive a Working with Children Check clearance.

Orders

111. The orders of the Tribunal are that:

1. the decision of the Children’s Guardian dated 12 June 2015 to refuse to grant the applicant a Working with Children Check clearance is set aside; and

2. In substitution of that decision the respondent is to grant the applicant a Working with Children Check clearance.

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 and Director

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Amendments

04 April 2017 - spelling of applicants counsels name

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

Amendments

04 April 2017 - spelling of applicants counsels name

04 April 2017 - correction of applicants counsels name

Decision last updated: 04 April 2017