CFW v Children's Guardian

[2016] NSWCATAD 76

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CFW v Children’s Guardian [2016] NSWCATAD 76
Hearing dates:	12 November 2015
Date of orders:	20 April 2016
Decision date:	20 April 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member R Royer, General Member
Decision:	(1) The decision of the Respondent is set aside. (2) The respondent is to grant the applicant a Working with Children clearance.
Catchwords:	CHILD Protection – Working with Children – Risk Assessment – Whether applicant poses a risk to children – Real and appreciable risk – Whether individual intentionally viewed material – Whether material sought out – Whether evidence sufficient to make a positive finding – Whether in absence of finding applicant poses a risk.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998(Repealed) Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Crimes Amendment (Child Pornography) Bill 2004
Cases Cited:	Children and Young People v FZ [2011] NSWCA 111 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 R v Commission for Children and Young People [2002] NSWIRComm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BKE v Children’s Guardian [2015] NSWSC 523 M v M (1988) 166 CLR (HCA)
Category:	Principal judgment
Parties:	CFW (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: B. Fogarty (Applicant) V. Harstein (Respondent)   Solicitors: Linda Rogers Solicitor (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510385
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 restricting 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 in these proceedings is referred to as "CFW". CFW is the applicant's pseudonym used in these proceedings.

2. On 28 July 2015 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting 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.

3. The jurisdiction of the Tribunal under Part 4 of the Child Protection (Working with Children) Act 2012 ('the Act') is protective and not punitive in nature, as set out by the Court when considering section 28 of that Act: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see sections 3 and 4 of the Act.

3 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.

4 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.

4. These proceedings arise because on 12 June 2015, the Children's Guardian made a decision to refuse to grant CFW a working with children check clearance. On 8 July 2015 the applicant CFW applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act.

Background

5. On 8 October 2014 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a clearance in order to continue in his employment as a work-based Trainer Assessor.

6. During the period from October 2014 until May 2015 the respondent considered the applicant's application. In December 2014 the respondent put the applicant on notice that they had identified information which required a risk assessment, due to the fact that previously, proceedings had been commenced against the applicant for an offence(s) as set out in Schedule 1 of the Act.

7. The applicant provided information to the respondent concerning the matters raised in respect of the risk assessment triggers (from Schedule 1). On 18 May 2015 the respondent notified the applicant that they proposed to refuse his application for a clearance. (Notice of Proposed Refusal of Application).

8. After considering all of the material previously provided and reviewing the matter, on 12 June 2015 the respondent finalised the working with children check and the applicant was refused a clearance.

9. As a result of the refusal of the clearance the applicant is unable to engage in child related employment.

10. On 8 July 2015 the applicant lodged an application for administrative review before the Tribunal. The grounds of the application are that: 'I do not agree with the decision and am not a risk to children’. There is no dispute that the application has been lodged within time.

11. The issue now to be decided by the Tribunal is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting or refusal of a clearance in relation to the applicant: (see section 63 Administrative Decisions Review Act 1997.)

The working with children legislative scheme

12. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act).

13. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. (See section 4 of the Act).

14. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of section 8(1) is an offence.

15. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act). A child related role is set out in section 6(3) of the Act.

16. Section 14 of the Act provides that a person is subject to an assessment requirement under the Act if any of the matters specified in Schedule 1 apply to the person.

17. Section 15(1) of the Act provides that the Children's Guardian must conduct a risk assessment of an applicant for a clearance to determine whether the applicant poses a risk to the safety of children.

18. Section 18(2) provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.

19. Part 4 of the Act deals with reviews and appeals. Section 27 makes provision for administrative review, by the NSW Civil and Administrative Tribunal, of decisions of the Children's Guardian.

20. Section 27 (1) of the Act makes provision for administrative review by the Tribunal of (amongst other things) a decision of the respondent to refuse a clearance (see section 27 (1)). The section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) ………...

(3) ………...

(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

21. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Subsection 30 (1) of the Act provides:

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.

Burden of Proof

22. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; 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].

23. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

24. An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

25. In addition, in this case there is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s28 of the Act.

26. In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In that regard, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 21 above). Section 15 (4) sets out the criteria which the Children's Guardian may consider. The Tribunal in its administrative review considers similar criteria in that section 15 (4) and section 30 (1) are drafted in similar but not identical terms. An important distinction is the word "may" in 15 (4) and "must" in 30 (1).

27. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'

28. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

29. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal.

The Issue to be decided

30. The primary issue before the Tribunal in this application as outlined at paragraph 11 above, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a clearance in relation to the applicant: (section 63 Administrative Decisions Review Act 1997).

The Hearing

31. The applicant's substantive application was heard on 12 November 2015. Prior to that hearing the Presiding Member heard an application by the applicant's legal representatives for a stay on the decision of the respondent. The stay was granted with strict conditions on 6 August 2015. At the conclusion of the hearing orders were made for further submissions to be filed and served by 27 November 2015.

32. As indicated, the substantive hearing took place on 12 November 2015. Both parties were legally represented. At the conclusion of the hearing, pending receipt of submissions by 27 November 2015 the Tribunal reserved its decision.

33. As outlined above, there is no presumption under section 27 of the Act that the applicant poses a risk to children as the applicant is not a disqualified person (seeking an enabling order) under the Act. This application is for a clearance under section 18 (2) of the Act.

34. A significant amount of material was tendered at the hearing by both parties. The applicant tendered three affidavits, a reference, a treatment report and an expert report in addition to the application for administrative review. The respondent tendered a large volume of material filed pursuant to section 58 of the Administrative Decisions Review Act 1997 in four volumes totalling over 500 folios of material. The order of witnesses involved the applicant giving evidence first, followed by a lay witness, and then the expert witness.

Applicant's Evidence

35. The applicant adopted both his affidavits sworn 28 July 2015 and 14 October 2015 in his evidence in chief.

36. Under cross examination the applicant was asked a large number of questions about his use of his computer and accessing the internet at the relevant times, as well as matters relating to his credit cards, addresses and dealings with Police during the criminal investigation.

37. Counsel for the respondent put the proposition to the applicant that he was neither helpful not co-operative with Police during his interview. In addition Counsel suggested that the facts of the manner of the police investigation indicate that the applicant was unhelpful and evasive with answering police questions. This it was submitted was contrary to matters deposed in the applicant’s affidavit.

38. A large amount of cross examination also concerned identifying names of various websites which were accessed as indicated from the brief of evidence in the Local Court. Various names, which were either in a determinative manner or otherwise indicative of possible prohibited material (child abuse material), were put to the applicant, including aspects of his browser use and history. In addition issues relating to payment for access to various sites (albeit for short amounts of time), identification evidence such as name and address and other relevant matters concerning the applicant’s potential involvement in viewing prohibited material were all put to him by the respondent.

39. It appeared from the applicant’s evidence that he was either having trouble understanding the propositions being put to him, or had an extremely poor memory and as a result appeared vague in his answers. It is not clear whether the applicant was in any way untruthful or evasive before the Tribunal (on the evidence and material before us), however, we note that the applicant presented in his answers as a very poor witness who in our view appeared to have difficulty giving a determinative answer on many general questions or propositions. We address this issue later in our reasons.

40. In this regard his cross-examination and answers were extremely laboured and as a result questions were redirected and closely scrutinised for any cogent material.

41. The applicant did give evidence about his access of ‘Shared Websites’ whereby users pay for access to a large website, which gives access for a limited time to specific other websites. The applicant gave evidence that he would click on various links and sometimes ‘other material’ would be evident and / or ‘pop up’. The applicant answered in evidence that he did not obtain any sexual gratification from looking at images of children.

42. When questioned about various credit card transactions to pay for Internet site access, the applicant disputed knowledge of certain transactions. The applicant did remember accessing some of the various websites referred to but had no specific recollection of the dates, and denied that he accessed any sites for the purpose of viewing prohibited material.

43. When asked why he kept returning to various ‘contentious’ websites, the applicant’s evidence was that he kept going back to the shared websites in order to view adult pornography. The Tribunal noted that in his evidence the applicant did admit to seeing prohibited material, but maintains that this was not his intention and as a result was only returning to shared websites. It was from these shared websites that his evidence was that he was searching for adult pornography.

44. Other evidence was given concerning that some of the contentious payment transactions were disputed in some way at the time by the applicant with his Bank. in addition the applicant gave evidence that at the relevant time he had a second credit card and the details of that card were at some time stolen.

45. In addition the applicant gave evidence in both affidavit and testimony that other persons at the relevant times had access to his computer.

46. The applicant gave evidence under cross-examination that he had visited sex shops with his current partner and on occasions had viewed adult pornography with her. However aspects of this evidence (the time / years since he had engaged in this lawful behaviour), were contradicted by matters recorded in his statements as recorded by the expert witness in her report.

47. The applicant / witness was re-examined and also asked some questions by the Tribunal. The applicant confirmed that if he was refused a clearance he would be immediately terminated from his current employment. The applicant also gave evidence that for a number of reasons both in respect of finding alternative employment, and connected with matters arising from any possible termination, he would need to relocate to a capital city.

Witness 2

48. The applicant’s partner was examined, and gave evidence by telephone. Whilst the witness gave evidence that she was aware of the applicant’s prior use of pornography, her evidence was that she had never seen any evidence of pornography in the house nor had she viewed any pornography with the applicant.

48. Of some significance was the witnesses’ denial of ever visiting an Adult (or ‘Sex’) shop with the applicant in the time that they had been together. The evidence on this point appeared clear to the Tribunal in that the witness answered ‘No – never’ to the proposition.

49. The affidavit of the witness dated 13 October 2015 was adopted. The evidence indicated that the applicant is stepfather to her young son, and how her son has a positive father son relationship with the applicant. Evidence was also given about the applicant’s support network, close family and community ties as well as an insight into his mental health needs.

50. The witness refers to the applicant as a positive father figure and role model for her son, and a part of a loving family unit.

The Expert Witness

52. Forensic Psychologist C Hare gave evidence at the hearing in addition to her assessment report dated 18 September 2015, which was adopted during examination in chief.

53. During cross-examination it was put to the witness that if an individual perused some of the websites identified earlier in the evidence then due to the nature of the material, such a user would meet the criteria for the technical definition of paedophile. The witness agreed that the specific condition is considered lifelong.

54. The witness also agreed that the condition creates victims, in that for a paedophile to utilise child pornography then such use was creating victims, and the offending could not be considered as a ‘victimless crime’.

55. The witness agreed that during her assessment of the applicant she had not been provided with the affidavit of ‘A.W.’, the law enforcement officer who conducted the forensic examination of the applicant’s hard drive. The witness gave evidence that her recollection of the applicant’s use of shared sites was in order to access conspiracy theory websites and the like.

56. A large number of exchanges occurred with the witness concerning whether she would have changed her assessment of the applicant had she been in receipt of the further information concerning the names of sites that were viewed or accessed.

57. It was put to the expert witness that the applicant was untruthful and this was clear in that the information that he had provided to both the witness during the assessment, and the Tribunal during the hearing, was contradicted by his partner. (Whether they had visited an adult shop and privately jointly viewed at home adult pornography). It was also put to the witness that as (it was asserted) the applicant had been untruthful concerning those matters, then he was also untruthful in his answers about the circumstances as to how he came to view child abuse material. In this regard it was put to the witness that the applicant was looking for child pornography. The witness noted that it was not for her to determine from what she had now been told, who was or was not telling the truth in respect of the joint viewing of adult pornography etc.

58. The witness noted that if the applicant was referentially accessing child pornography then that would change the situation in respect of her report.

59. In re-examination the witness was asked about the risk factors that she was assessing in the applicant. Her evidence was that she was not specifically assessing for paedophilia but rather sexual offending in general. The witness gave evidence that aspects of the applicant’s access were apparently linked to managing his mental health concerns (as self reported).

60. The witness gave evidence that her assessment of the applicant was of a low risk of offending and therefore low risk to children, and that in her opinion the presence of a mood disorder would not necessarily heighten an individual’s risk of offending / re-offending.

61. In examination concerning the content of some of the accessed files (re: A.W.’s statement), the witness was asked whether if the applicant was lying then would that change the assessment of the applicant in respect of his risk. The witness answered that she was not sure whether that would change her assessment of his risk.

62. Finally in cross-examination the witness was asked whether lying about adult pornography, if he had been seeking out child pornography, whether that would change the assessment of risk. If those things were established then the witness agreed that situation would change her assessment.

63. In re-examination the witness was asked whether the applicant had identified the names and descriptions of some of the sites etc. that he had seen, and whether her report covered the fact that the applicant had described that there was prohibited content and the nature of images on the unallocated space of the applicant’s computer. The witness agreed that her report had been prepared with that knowledge.

64. The witness was asked whether her opinion of the Applicant’s risk changed if it was established that he did not visit an adult shop with his partner. The witness answered that it did not change her overall opinion as to the applicant’s low level of risk.

65. In questioning by the Tribunal the witness was asked about the ability to provide a robust assessment of the applicant bearing in mind that he had no relevant criminal or conviction history for the various risk models to be effective.

66. The witness conceded the difficulties of such a subject with no relevant history, however noted that the literature and other issues referred to in the report, such as considering a subject’s abuse of substances, alcohol, poor interpersonal boundary judgement, personality issues can all assist in developing a context for examining risk.

67. Other questions focused on any issues arising from the applicant’s treatment and Cognitive Behavioural Therapy (CBT), and whether the witness had formed an opinion or diagnosis (where possible) of the applicant. The evidence was that the applicant was not clinically depressed.

68. At the conclusion of her evidence the witness maintained the general position and conclusions of her report in her evidence at the hearing of the matter.

Section 30 (1) considerations

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

69. The applicant's application to the Tribunal is brought about by an adverse risk assessment of him by the respondent. Those matters encompass the matters whereby the applicant was issued a Court Attendance Notice for the then offence of Possess Child Pornography under section 578B (2) of the Crimes Act. The matters were serious offences which attracted a possible custodial sentence of five years.

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

70. The matters referred to in the risk assessment are alleged to have occurred in the period 2002 to 2004, which is some 11-13 years ago. The applicant has come to the attention of Police on one occasion due to a low range PCA (Drink Driving) matter in early 2006 for which he received a conditional dismissal. Other than this matter the applicant has maintained a stable relationship, been gainfully employed meeting his financial and other obligations, and is an active volunteer in a number of community based not for profit enterprises.

71. In that regard the applicant’s general conduct can be described as uncontroversial and positive.

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

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

(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.

73. The material subject to the charges concerns children. The creation of and or intentional viewing of child pornography is an offence, and in that light the victims were children. It is because of the self- evident and obvious harm done and risk to the safety and well-being of children as subjects of this material, that these matters are listed as relevant offences in schedule 1 and 2 of the Act. Police indicate that the victims were under 16 years of age when the images were created. In our view any child abuse material (by definition) indicates an elevated vulnerability of the subject victims.

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

74. The subjects of the images are of unknown exact age and there was no relationship of the applicant with any victim. The applicant submits that the difference in age was at least 17 years, however the age of the individuals depicted in the images (when viewed) is unknown. It is accepted that there would have been an at least 17 year age difference between the applicant and the victims if the images were created shortly before they were viewed. The only way in which this provision can be applied is to calculate the difference in age at the time of creation (for the victims) and the time of viewing (for an accused applicant). In any event, we note that the criminality arises because at the time of the creation of the material the victims were children, and as such we would (if possible) calculate the difference in age between the apparent age of the victim in the image and the perpetrator viewing the image.

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

75. The applicant does not dispute that the persons identified in the images were children. It is accepted that in respect of the charges, the images were of children.

(g) The person's present age.

76. At the time of the hearing the applicant was 43 years of age.

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

77. The applicant does not have a criminal record, in that there are no convictions. There is a minor PCA (Drink Driving) matter, where the offence was proven and the matter was discharged (with conditions) without proceedings to a formal conviction.

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

78. Based on the expert report provided by the applicant, it would appear that the likelihood of offending is low. It was submitted that the applicant had no greater future likelihood of being charged with child pornography offences than any other adult member of the community.

However, the respondent's view is that there are a number of factors which would tend to elevate risk. In this regard the respondent submitted that the applicant meets the criteria for ‘paedophilia’ and is therefore an ongoing risk to children. This position is based on the Tribunal making a positive finding that the applicant searched for child pornography material, a finding which the respondent submits is open to the Tribunal to make on the basis of the evidence and material filed in these proceedings including the evidence given at the hearing.

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

79. The applicant tendered a reference from a Mr ‘L.C.’. In addition evidence was given by the applicant’s partner as a witness. The reference is positive to the applicant's case for determination, and the author was not required for examination by the respondent. The applicant provided two affidavits in the proceedings and was subjected to lengthy examination, cross examination and re-examination.

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

80. The respondent raised a number of issues in submissions, the main item being that the on the available evidence it is open to the Tribunal to draw an inference on this point, being that the applicant accessed or searched for child pornography online, or child abuse material. The respondent submitted that the applicant was evasive in his answers both to the investigating Police, and to the Tribunal. The respondent submitted that the applicant was neither helpful nor properly responsive in the police investigation, and was vague and evasive.

81. The respondent further submitted that the applicant was dishonest in his answers to Police and the Tribunal. The applicant advised the Clinical and Forensic Psychologist that he intended to remain working for the foreseeable future in his current line of employment. In oral submissions the respondent opposed the granting of the orders sought in the application.

Respondent's Submissions

82. The respondent filed written submissions after the hearing which addressed the section 30 (1) considerations and the standard of risk applicable in respect of the application before the Tribunal.

83. Consistent with submissions made at hearing, the respondent submitted that the applicant met the criteria for ‘paedophilia and is therefore an ongoing risk to children. The respondent submitted that whilst the evidence established that the applicant had not admitted deliberately seeking out pictures of prepubescent females and he denied that he looked at such pictures for sexual arousal, the objective evidence was that the applicant did deliberately look at such pictures over a period of 2 years.

84. The respondent submitted that notwithstanding the applicant’s evidence, it was open to the Tribunal to draw certain inferences because the applicant had paid to visit shared web sites.

85. It was further submitted that the images subsequently located on the unallocated space on the applicant’s computer, were images ‘found on the computer and the applicant had visited websites where those pictures could be obtained over a two year period.’ (Respondents Subs dated 19 November 2015 paragraph 12).

Applicant’s Submissions

86. The applicant submitted in written submissions that he is not a disqualified person under the Act. In addition the applicant had not been convicted of any criminal offence, and notes that a section 10 dismissal criminal matter arising from his use of a motor vehicle is his only blemish.

87. It was further submitted that the applicant demonstrated an insight into the inappropriateness of and the horrendous impact of child pornography. The applicant accepts that such behaviour by perpetrators does not amount to a victimless crime.

88. The applicant is a family man who meets both his family commitments in a responsible manner, and engages in significant community input as a respected skilled and experienced volunteer. The reference of Mr ‘L.C.’ a respected member of the community of high standing was tendered in evidence in support of the applicant’s character, and it was submitted should be given significant weight.

89. In further submissions the applicant submitted that the respondent had mischaracterised the term ‘err on the side of caution’ when referring to the decision of BJB (No 2) referred to in the respondent’s submissions. (BJB –v-Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164). The applicant submitted that the ‘erring on the side of caution’ do not relate to how the evidence of a matter should be weighed and considered, but the discrete mandatory step of assessing risk.

90. The applicant submitted that the respondent’s submissions concerning evidence (which was characterised as overwhelming) that the applicant deliberately viewed pornographic images of children, were wrong. In the applicant’s submission there is no such evidence. The applicant submits that whilst the evidence establishes that he clicked on files with impugned images (not realising their content), when these arose they were closed down and discarded. Further the applicant submits that the evidence shows that those files were uncovered during searches for adult pornography, whilst accessing shared websites.

91. The applicant submitted that at most, his actions were reckless and negligent, rather than deliberate, knowingly and intentional.

92. It was further submitted that the dismissed Local Court proceedings accepted that an image that appears on a computer screen can be ‘saved’ to the unallocated space on a hard drive without the knowledge or intention of the user.

93. The applicant took issue with the respondent’s submission that he met the criteria for the definition of ‘paedophile’ on the available evidence. The applicant refutes this finding and submitted that it was open to the respondent to call its own expert to place such evidence before the Tribunal, but they declined.

94. The applicant submitted that issues relating to his presentation as a witness in the hearing, and the manner of his answers to questions in cross examination, can be in part attributed to the fact that the criminal proceedings were approximately 10 years prior, and some of the alleged web use was a few years prior to that.

Consideration

95. Child Pornography is currently covered in section 91 of the Crimes Act 1900 in that section 91G- 91H specifically address the relevant offences. However at the relevant time of the allegations concerning the applicant, it was dealt with in section 578 B of the Crimes Act which provided for an offence of ‘Possession of child pornography’. That provision was repealed by the Crimes Amendment (Child Pornography) Bill 2004 which provides for a new section 91H of the Crimes Act in broadly similar terms to the former section 578B.

96. Section 91 H provided for possession of child pornography. The provision has been amended again in that the current legislation refers to ‘child abuse material’. However the defences available to a possession charge under 578B, 91H (3) or the current 91H are broadly of the same type. That is that it is a defence to the charge if it can be established that the accused did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.

97. In the current mater the Court was unable to be satisfied that the applicant was the one who placed the images in the unallocated space of his computer. The Magistrate referred to the fact that the prosecution was based on a circumstantial case, and that whilst the actions of the defendant (this applicant), were very suspicious, the crown could not rebut the assertion that the images may have been saved to unallocated space on his computer by another person (based on the evidence before the Court).

98. In our view the cases of M v M [1988] HCA 68; 166 CLR 59 and the case of BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 have applicability to aspects of the fact finding role of the Tribunal in the current proceedings. Significantly, the preliminary issue is whether the Tribunal can be satisfied that a particular allegation on the available evidence had or had not been made out, whether the Tribunal could still be satisfied that the applicant did or did not pose a real and appreciable risk.

99. In M v M [1988] HCA 68; 166 CLR 59 the Court was considering a finding from the Family Court of Australia and whether there was an unacceptable risk to the child. The Court stated at paragraph 23 and 24:

23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests 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 come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

100. That case was concerned with whether there existed an unacceptable risk that the child would be exposed to harm in the nature outlined. At paragraph 25 the Court examined the various risk references:

25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

101. In the present case the relevant test is to consider whether the applicant poses a 'risk to the safety of children'. (Section 18 (2) ) and that the risk is 'real and appreciable' (as per Young CJ in Eq in Commission for Children and Young People v V ).

102. In the case of BKE the following was provided in respect of consideration of the matters arising from M v M. At paragraph 33 Beech-Jones J observes:

33. The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with "unacceptable risks" but "real and appreciable" risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. 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.

103. In making a finding as to whether the criminal allegations occurred, (to the civil standard) we find that we are unable to make a positive finding. In doing so we find that the evidence in the form submitted at the hearing is (in our view) not sufficient to establish those allegations to the civil standard. That is not to suggest that the allegations did not amount to any inappropriate conduct or have no truth, (or in the alternative - have truth), but rather that we are unable to positively determine them, in that we are required to be reasonably satisfied as to their veracity (on the balance of probabilities). Therefore whether those matters occurred, or did not occur remains open.

104. In any event, we are required to determine notwithstanding the absence of any finding, whether the applicant poses a real and appreciable risk to the safety and well-being of children and young persons.

105. In our view the applicant was a very poor witness, in that his answers were very limited in their ability to impart information to the Tribunal as the ultimate finder of fact in the proceedings. The applicant appeared completely unprepared or unable to fully understand many of the questions put to him, and was uncertain and somewhat disorientated in his answers. The difficulties of the applicant’s oral evidence was to an extent partly conceded by all legal representatives, however the Tribunal notes that he attempted to answer all questions, and did elect to give evidence before the Tribunal. The Tribunal also notes the applicant’s submissions concerning the passage of time since the conduct that he was questioned about during the hearing.

106. Notwithstanding these problems outlined above, in our view, there was no evidence that the applicant was untruthful or deliberately evasive in his answers, and in that regard has (in our view) satisfied the requirement of section 27 (4) of the Act.

107. We have had regard to all of the evidence and submissions in these proceedings, even if we do not refer to all of that information specifically in these reasons.

108. In our view, even though we have determined that a positive finding cannot be made in respect of the alleged conduct which would point to risk, on the evidence and material before us, the applicant does not currently pose a real and appreciable risk to the safety of children and young persons. In our view the risk is neither real, nor appreciable, and neither is there sufficient evidence before us to the requisite standard that there is any real likelihood of future risk.

Conclusion

109. For the reasons set out above, and specifically having regard to the matters as set out in section 30 of the Act (see paragraphs 69 – 81 inclusive above), we reach the following conclusion.

110. The evidence and material referred to in these reasons does not establish that the applicant currently poses a real and appreciable risk to the safety of children.

111. The evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant poses a risk to the safety and wellbeing of children.

112. We note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

113. In our view having regard to all of the material before the Tribunal, to the requisite standard the applicant does not pose a risk to the safety of children.

114. It therefore follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children’s Guardian.

Orders

115. (1) The decision of the Children’s Guardian dated 12 June 2015 to refuse to grant the applicant a clearance is set aside.

116. (2) The respondent is to grant the applicant a working with children clearance.

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

06 April 2017 - spelling of applicants counsels name

Decision last updated: 06 April 2017