CHJ v Children's Guardian

[2017] NSWCATAD 113

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CHJ v Children’s Guardian [2017] NSWCATAD 113
Hearing dates:	1 September 2016, 25 November 2016
Date of orders:	10 April 2017
Decision date:	10 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer (Senior Member) P Foreman (General Member)
Decision:	(1) The decision of the respondent, dated 6 November 2015, to refuse to grant the applicant a Working With Children Check clearance is affirmed. (2) The application is dismissed
Catchwords:	CHILD Protection – Working with children – Findings in respect of criminal allegations – Evidence – Weight of evidence – Fairness to party – Proposed adverse finding -No presumption of risk s27 – Credibility of applicant.
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Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998(Repealed) Civil and Administrative Tribunal Act 2013 Interpretation Act 1987
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 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 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Briginshaw v Briginshaw [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 King v Collins [2007] NSWCA 122 L v The Commissioner for Children and Young People and anor [2008] NSWIRComm 195 Office of the Children's Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88
Category:	Principal judgment
Parties:	CHJ – Applicant Office of the Children’s Guardian - Respondent
Representation:	Counsel: B Regener – Applicant V Hartstein - Respondent   Solicitors: Streeton Lawyers- Applicant Crown Solicitor’s Office - Respondent
File Number(s):	2015/00383626, 1510756
Publication restriction:	An Order is 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.

Reasons for decision

Introduction

1. On 3 December 2015 the applicant applied for administrative review in the Tribunal of a decision of the respondent to refuse a Working With Children Check clearance. That decision was made on 6 November 2015.

2. The Applicant in these proceedings is referred to as "CHJ". CHJ is the applicant's pseudonym used in these proceedings.

3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of section 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant does currently pose a real and appreciable risk to the safety and well-being of children and young persons on the evidence and material before us. We do not need to concern ourselves with the provisions of section 30(1A)(a) and (b) as those provisions do not apply to the current application. (See paragraph 6 below). The decision of the respondent will therefore be affirmed for the reasons which follow.

Background

4. On 28 January 2016 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.

5. The jurisdiction of the Tribunal under Part 4 of 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.

6. These proceedings arise because on 6 November 2015, the Children's Guardian made a decision to refuse to grant CHJ a Working With Children Check clearance. On 3 December 2015 the applicant applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act. We note that the provisions of section 30(1A) came into force for applications commenced after 1 November 2015. The applicant applied for a WWCCC on 28 August 2014.

7. Clause 16 of Part 4 of Schedule 3 of the Act provides that the Children’s Guardian must consider the following matters:

16 Matters for consideration

(1) Sections 15 and 30, as amended by the amending Act, do not apply to an application for a clearance or an application for an administrative review of a decision to refuse an application for a clearance.

(2) In this clause:

application for a clearance means an application for a Working With Children Check clearance made by a person before 2 November 2015.

Background

8. On 28 August 2014 the applicant, applied for a Working With Children Check clearance from the respondent. The applicant requires a clearance in order to resume his work in the teaching profession in the areas of both teaching and coaching.

9. From September 2014 the respondent considered the applicant's application. The respondent conducted a mandatory risk assessment pursuant to section 15(1) of the Act, in that pursuant to section 14 of the Act the applicant was subject to an ‘assessment requirement’. In this instance the applicant’s circumstances fell within the provisions of Schedule 1 of the Act, in that proceedings had previously been commenced against the applicant for an offence specified in Clause 1 of Schedule 2 of the Act. We note however that under section 15(3) of the Act it would appear that the respondent is able to conduct risk assessments in respect of any applicant’s application.

10. On 13 October 2015 the respondent issued a 'Notice of proposed Refusal of Application'. After considering all of the material previously provided and reviewing the matter, on 6 November 2015 the respondent finalised the working with children check and the applicant was refused a clearance.

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

12. The applicant lodged the application for administrative review before the Tribunal just within the period provided for in section 27 (1) of the Act. The section 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.

13. The grounds of the substantive application are:

1. I do not pose a risk to the safety of children.

2. A reasonable person would allow his or her child to have direct contact with me that was not directly supervised by another person while I was engaged in any child-related work, having knowledge of all the circumstances which triggered the risk assessment, being an aberration, which given my changed living arrangements, could not be repeated and would have regard to the fact that I have worked as a teacher, exposed to children for many years prior to the incident without any previous cause for concern.

3. It is in the public interest to make the order so that I can support my family in my chosen profession of teaching and continue to engage in community and voluntary work with children.

14. It appears in respect of grounds (2) and (3) that the applicant is unaware that the provisions of section 30(1A) do not apply to his application for a clearance (as per paragraph 6 above).

15. 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

16. 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).

17. 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).

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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

26. 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].

27. 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].

28. The Tribunal embarks on a fact finding exercise in respect of the evidence and material before it. In those circumstances it is a matter of some recent superior court observation as to how the standard might be approached. In the case of Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 the Court of Appeal recently observed the following in respect of the Tribunal. At paragraphs 126 to 127 the Court observed:

126. It is not necessary, in order to resolve this appeal, to examine in any detail the way in which the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW) applies to fact finding in a tribunal to which the rules of evidence do not apply. One reason why it is inappropriate to do so is that the primary judge appears not to have been favoured with full submissions referring to intermediate appellate authority on this issue. It is true that his Honour was referred to a passage in the reasons of Santow JA in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35], to the effect that how the Briginshaw standard was to operate “must be understood in the context of an administrative body operating informally and not as a court of law bound by the law of evidence”. However, his Honour was not referred to the analyses in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305 at [29]- [40] and Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322 at [22]- [30] nor to that undertaken by a Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [98]- [122]. Nor was his Honour directed to what had been said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171:

“[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.” [citations omitted]

127. In those circumstances, his Honour’s reasons at [77] (reproduced above) reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT.

29. 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.

30. 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 section 28 of the Act.

31. 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 25 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).

32. 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". ...'

33. 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.

34. 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

35. The primary issue before the Tribunal in this application as outlined at paragraph 15 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

36. The matter was heard on 1 September 2016 and adjourned part heard to 25 November 2016. The matter was adjourned in order to afford the applicant (and the respondent) an opportunity to respond to a proposed adverse finding by the Tribunal, and to allow for service and filing of some material in the applicant’s possession. Both the applicant and respondent were represented by Counsel and instructing Solicitors.

36. The applicant relied upon his own written evidence and evidence at hearing, in addition to the evidence of 10 witnesses including an expert. The respondent relied upon written material filed in the proceedings. The respondent did not call any witnesses. However they cross examined the applicant and his expert as well as witnesses.

Written Evidence

Applicant’s written material

38. The applicant filed a number of affidavits and statements in support of his application.

• Exhibit ‘A2’ a Statutory declaration of ‘CJH’ declared 17 July 2015 attesting his background, professional history and matters relating to the incident central to the respondent’s refusal.

• Exhibit ‘A3’ a signed Statement of ‘CJH’ with annexures concerning recent training.

• Exhibit ‘A4’ an expert report of Dr S Allnutt Forensic Psychiatrist dated 17 July 2015.

• Exhibit ‘A5’ Statement of witness ‘R.M.’ who has known the applicant since early childhood.

• Exhibit 'A6' Statement of witness 'T.‘X’.' the mother of the applicant.

• Exhibit 'A7' Statement of witness 'M. ‘X’.' the spouse of the applicant.

• Exhibit 'A8' Statement of witness 'R.W.' who has known the applicant locally for the last 15 years.

• Exhibit 'A9' Statement of witness 'T.W.' who has known the applicant for the last 30 years.

• Exhibit 'A10' Statement of witness 'J.D.' who has known the applicant through her husband for the last 16 years.

• Exhibit 'A11' Statement of witness 'M.B.' who has known the applicant locally for the last 30 years.

• Exhibit 'A12' Statement of witness 'S. ‘X’.' who is the older sibling of the applicant.

39. The respondent filed substantial material under both section 58 of the Administrative Decisions Review Act 1997 and material obtained since the commencement of these proceedings. Whilst the respondent did not call any witnesses, substantial cross examination of the applicant and examination of the applicant’s expert and some of his lay witnesses occurred at hearing. In addition the respondent obtained material under Summons.

• Exhibit ‘R1’comprised the section 58 documents which went to 466 folios.

• Exhibit ‘R2’ comprised pleadings prepared for and filed in Industrial Relations Commission proceedings.

• Exhibit ‘R3’ comprised the Transcript of aspects of the complainant’s evidence in the District Court criminal proceedings.

• Exhibit ‘R4’ comprised the Transcript of the applicant’s evidence in the District Court criminal proceedings.

40. Both parties filed detailed written submissions prior to the hearing, in addition to oral submissions made at the conclusion of the evidence at the hearing. Additional submissions were filed when the hearing resumed on the second day.

41. In our view it is necessary at this stage to briefly outline or otherwise describe the nature and circumstances of the serious criminal allegation central to the Children’s Guardian refusal to grant a clearance.

42. The allegations concern a female 16 year old student attending on the applicant’s residence late at night with another adult male resident and another adult male, and engaging in the consumption of alcohol and in sexual acts with up to all three males taking the form of sexual behaviour through to unlawful sexual intercourse. The 16 year old complainant gave evidence at the criminal trial that the majority of the sexual contact was non- consensual and that she tried to stop it occurring/continuing. The matter was reported to police, individuals were charged and committed for trial in the District Court. The applicant was acquitted by a Jury returning not guilty verdicts.

Applicant’s Evidence at Hearing

43. In evidence-in-chief the applicant confirmed his statement and accompanying statutory declaration. There was an issue concerning the attestation but this was not pressed by the respondent.

44. In cross-examination the applicant was asked about his training in the area of child protection when employed as a high school teacher. The applicant could not recall specific modules or topic areas but agreed with the general propositions that he would have attended different seminars but his recollection of the specific subject matter was slightly at odds with what was deposed in his written evidence. The applicant observed that it was over five and a half years since his last school based child protection training module.

45. Various questions were put to the applicant concerning dealing with students out of school hours. The applicant resided and taught in a regional centre in New South Wales and in that context gave evidence that in a general way the boundaries between work and out of school time in the general community were not well defined. The applicant’s evidence was that as he was in a small town than the boundaries between work and play (from his perspective) were not well defined.

46. Reference was made to what the applicant had referred to as the ‘out of hours incident’, which was the central incident from which the respondent’s adverse assessment and finding arose. In a more general sense we will refer to the matter as the ‘serious criminal allegations’. Counsel focused on the words used by the applicant in his dealings with the respondent through his solicitors. Again these issues focused on the differentiation between the applicant’s dealings (with students and others) in school hours as opposed to out of school hours. It was put to the applicant that stressing these distinctions was an attempt to lessen his responsibility in the serious criminal allegations because those matters had occurred outside of school hours.

47. In cross examination the witness was taken to the incident being the serious criminal allegation. The applicant conceded that his evidence at trial was that he knew it was not appropriate for the student to be at the residence. The applicant conceded that his own intoxication was not sufficient to argue that his judgment was impaired to the extent that he could not make decisions. In evidence the applicant agreed that he could have told the complainant to leave at any time but did not do so.

48. The actions that occurred were detailed during cross examination. The applicant was intoxicated and had been out celebrating a sporting and a personal event of a friend at two licenced clubs during the evening. Male 1 and Male 2 had been with the applicant as he left the second club and as they lived together the applicant told them that he would leave the door unlocked.

49. The applicant conceded in cross examination that when Male 1 and Male 2 returned home they consumed alcohol (more than one drink each male 1 and the applicant), and that after some time Male 2 went outside for a period and returned with the complainant. During the evening all four entered a spa bath within the premises, and that the complainant had removed most of her clothes and was only wearing underwear. The applicant stated in his evidence that he was not certain of the complainant’s state of dress due to poor visibility from the spa bubbles.

50. It was suggested to the applicant that he offered the complainant a drink when she came into the house with Male 2. The applicant could not remember doing that. The evidence put to the applicant was that the complainant and Male 2 got out of the spa and the complainant’s underclothes had been repositioned by the water force and her bra was undone, and that she removed the clothes onto the floor facing away from the applicant and Male 1 who were still in the spa bath.

51. Some minutes later the applicant also left the spa and went into the lounge room where the complainant and Male 2 were naked on the couch. The applicant agreed that he went and laid on the mattress next to the couch. The mattress had sheets and some form of warmer outer covering. The room was heated by a fire.

52. The applicant was taken to his evidence in the District Court trial:

I was lying there. Things started to get a bit more heated between (Male 2) and (the complainant). She actually hopped on top of him on the lounge. Shortly after that, they rolled on to the mattress next to where I was.

53. The witness denied that he was watching the others as he was trying to go to sleep, however he conceded that he may have opened his eyes whenever he heard a noise. The applicant was asked whether he thought it was appropriate to be lying there watching a 16 year old student having sex with an older man, to which he answered ‘no’. The applicant agreed that Male 2 and the complainant were having sexual intercourse when they rolled off the lounge/couch onto the mattress.

54. At this stage the applicant agreed that he was close enough for the complainant to place her hand down the front of his football shorts. At this stage we believe it is necessary to set out the two versions as to what occurred during the incident. This description is as brief as possible and details further the matters outlined in paragraph 42 (above).

1. In respect of the criminal charges the applicant was accused of anally raping the complainant while she was engaged in sexual activity at various times with Male 2 and peripherally with Male 1. The complainant’s evidence was that she did not consent to any sexual activity with the complainant and made her lack of consent known. The Crown case included admitted evidence of the applicant’s semen in the inside crotch area of the complainant’s jeans.

2. The applicant’s version is that the complainant reached down the front of his football shorts and placed one hand (and later the other hand) around his penis and masturbated the applicant until he ejaculated towards her lower front/groin area/upper legs.

55. There was discussion about the drawstring on the football shorts, whether they were worn around the applicant’s waist or hips, and how the applicant could have ejaculated onto the complainant’s body (rather than within his shorts) if her hand was down the shorts and they were not pulled down.

56. The applicant’s evidence was that when Male 2 got off her, the complainant swapped hands and started masturbating the applicant with her right hand.

57. It was put to the applicant that his version (at 54(b) above) was made up to explain the presence/location of his semen in the prosecution exhibit. The applicant denied that he had made this version up.

58. There was discussion as to whether the applicant knew where his semen was located and whether he saw it or not. Much debate concentrated around questions put to the complainant in the criminal proceedings by the applicant’s counsel. On one hand the applicant gave evidence that he ejaculated somewhere near the front of the complainant, his Counsel in the criminal proceedings put a proposition to the complainant that he ‘ejaculated on her upper thighs’. The applicant clarified his evidence that even though he did not see it, it would have been around the complainant’s upper thigh or groin area.

59. Counsel took the applicant to the witness statements and affidavits tendered on his behalf. Whilst those individuals had not yet given evidence issue was taken with the form of their deposition. It was suggested that by reference to the word ‘touching’ instead of the words ‘touching’ and ‘masturbating’ the applicant was trying to minimise his behaviour to his referees or character witnesses, and to the Tribunal. The applicant denied that he was minimising his behaviour.

60. The applicant denied writing the statements or directing in any way the answers of the witnesses. His explanation for the source of words and phrases was that he ‘asked them to do a reference for me and I just thought it was important that .. they had the details of it.’ . The applicant denied providing his statutory declaration to another witness and asking for aspects of it to be copied into their statement.

61. The applicant denied that he lacked insight into aspects of the matter in that, whilst he and his witnesses had referred to his ‘vulnerability as a teacher’ (due to his age and level of professional experience), there was no reference to the complainant’s vulnerability or his students generally.

62. Reference was made to pleadings which had been filed in Industrial Relations Proceedings for unfair dismissal. These pleadings were created for a different purpose and after various exchanges between counsel it appeared that they were of limited use in ascertaining useable evidence leading to risk.

63. Further questions were asked about the applicant’s recent studies and training in ‘professional boundaries’. The applicant was asked whether the recent course raised any information that had not been previously addressed in his teaching period. The applicant advised that he might have picked up some new information and confirmed that in his current role the boundary issues concern clients, and not child clients as he does not currently work with children.

64. In re-examination the applicant was asked about his memory of the events of the serious criminal allegation. His evidence was that some aspects are clear but other aspects are rather blurry.

65. The applicant was asked about his evidence concerning ‘pain and anger’ in his statement. The reference was to all those involved and their families and what they have gone through.

66. The applicant was asked about his evidence of remorse from his written statement. His evidence was that he was remorseful for what had occurred to all parties, individuals, and families involved and that it was a mistake.

Witness Exhibit A11

67. The witness, in evidence-in-chief, confirmed that they were not contacted by the Children’s Guardian.

68. In cross-examination the witness was asked about her reference. Her evidence was that she could not recall the exact circumstances as to whether she filled in gaps on a pro forma or typed out a statement. The witness gave evidence that some of the background material she knew from talking to her relatives and persons in the community at the time. Various questions were put about the serious allegation and the witness’ limited evidence about this.

The Expert Witness

69. Dr Allnut gave evidence in the proceedings. In cross examination the witness was taken to the report and the further report that he issued in order to deal with factual concerns in the initial report.

70. There was some discussion about the manner that findings from the associated material were incorporated into the body of the report, such as whether others found the applicant’s action convincing or unconvincing. The witness was taken to the IRC Pleadings and matters relating to the nature of the dismissal from teaching having regard to the circumstances of the conduct (out of school, in home etc.). Questions were put concerning the expert’s understanding that the applicant had made some progress in understanding professional boundaries.

71. The expert gave evidence that in respect of the STATIC 99 test the applicant would have scored 1. In respect to material on page 5 of the report concerning his work as a personal trainer, the expert indicated that the applicant’s reaction showed some improvement in understanding. If clients made suggestive comments the applicant ‘brushed them off’. The report indicated that the applicant took his wife with him to work related functions outside of hours and would leave early to avoid becoming involved in social interactions with clients.

72. Contrasted with this, however, was the submission to the respondent in late June 2015 (that the matter was ‘out of school hours’) and whether highlighting that was in contrast to any apparent or claimed ‘progress’. It was put to the expert that this was indicative that the applicant had not made any progress; to which the expert agreed that that finding or opinion was possible.

73. The expert agreed that the facts as pleaded in the IRC pleadings illustrated an entirely inappropriate state of affairs. The expert stated that whether a student came on to the applicant or the other way around, both were entirely unacceptable as such action was contrary to the teacher’s role, to act in a manner having regard to the student’s welfare.

74. In re-examination Counsel referred to the IRC pleadings and the position that it was not a verified statement of the applicant, but something prepared by his lawyers. Questions were put as to whether the earlier opinion given under cross-examination would stand up when the propositions (in the IRC pleadings) were not technically being advanced by the applicant, but by his lawyers in order to address an industrial law threshold issue. (The issue being the distinction between on- and off-duty conduct).

75. The Tribunal inquired of matters concerning the some discrepancies and inconsistencies in the report concerning facts, contexts and related matters. These were clarified by the expert to the satisfaction of the parties.

Applicant’s spouse’s evidence

76. In evidence in chief the witness confirmed that she had not been contacted by the respondent prior to the hearing.

77. In cross-examination the witness was asked about the circumstances of the authorship of her statement. The witness confirmed that she was not at the home or even in the town where the serious criminal allegation/incident occurred (the applicant’s home) at the relevant time.

78. Questions were put concerning certain similarities between her (the witness) statement and the applicant’s statement. Reference was made to the duplication of the phrase ‘personable relationship’ in the statements.

79. In re-examination the witness confirmed that she was provided with a form of questions to which the content of her statement comprises the answers.

Applicant’s mother’s evidence

80. In evidence-in-chief the witness confirmed that she had not been contacted by the respondent prior to the hearing. In cross-examination the witness gave evidence that she knew that the applicant knew that it was inappropriate to have students in his house.

Applicant’s sibling’s evidence

81. In evidence-in-chief the witness confirmed that she had not been contacted by the respondent prior to the hearing.

82. In cross-examination the witness confirmed that she attended the applicant’s trial and was taken to various inclusions and apparent omissions in her statement. A proposition was put to the witness that by only referring to the word ‘touch’ in her statement even the applicant’s conceded conduct was minimised in her evidence to the Tribunal.

83. The witness indicated her limitations on giving evidence about the impact of the incident on the complainant/victim in that she was not in a position to comment on the matter and when challenged further, indicated that she (and the public) were not allowed into the Court when the complainant gave her evidence.

84. Counsel highlighted the witness giving a favourable assessment of the applicant due to his giving evidence at his trial (amongst other things). It was put to the witness that this (electing to give evidence) only occurred because the applicant needed to provide some explanation for the Crown submission that the presence of the semen was due to ‘drainage’ from complainant. In response to this the witness indicated that the applicant told her his version of events prior to the trial.

85. The witness made her views apparent to the Tribunal that the Court outcome should be totally determinative and should have cleared all related paths sought to be accessed by the applicant, such as the need for a WWCC clearance.

Witness ‘W1” – Character evidence

86. A witness gave evidence as to the applicant’s character in her dealings with the applicant and her year 7 son in the Gifted and Talented Rugby League Program.(GATRL) In evidence-in-chief the witness confirmed that she had not been contacted by the respondent prior to the hearing, and that their dealings with the applicant extended beyond the GATRL program.

87. In cross-examination the witness was asked about her knowledge of the allegations prior to being asked to provide the statement. She was not present at the criminal trial but was aware of the general incident/allegations via the applicant.

86. The witness gave evidence concerning the applicant’s approach to students with problems in the period prior to the serious incident. Her evidence was that students saw the applicant as trustworthy if they wanted to raise an issue/concern with him and were comfortable speaking with him.

87. The witness confirmed her view that the applicant had crossed professional boundary lines and therefore acted inappropriately by letting the complainant (student) into his residence. The other matters (as conceded by the applicant) were also deemed inappropriate by the witness.

Witness ‘W2’ – Character evidence

90. The witness is the mother of a co-accused from the serious incident and has known the applicant for many years. She resides in the town where the serious incident occurred and had formerly socialised with the applicant.

91. In cross-examination the witness confirmed that she was present for the entire criminal trial arising from the serious incident/allegations. Questions were put concerning the character evidence statement in that the witness had not observed the applicant’s behaviour in recent years as he had relocated to another part of the State.

Preliminary Finding

92. At the conclusion of the evidence the Tribunal alerted the parties to a view that it had formed (as a preliminary finding). We stated to the parties on the record that we had formed the view that, on the evidence and material before the Tribunal at this time, we did not believe that the applicant had fully disclosed the truth in accordance with his primary duty under section 27(4) of the Child Protection (Working with Children) Act 2012 in respect of his application to the Tribunal.

93. In making that preliminary finding we both alerted the applicant to this issue, so the applicant (and if necessary, the respondent) could put on submissions in respect of that point. In addition we made it clear to the parties that we had not made a positive finding (to the requisite standard), at that time as to what transpired during the serious allegation/incident, but the applicant’s evidence in respect of those matters leads to our concern expressed above. The matter was adjourned part heard for further submission and receipt of the Department of Education and Communities’ report.

Respondent’s Submissions

94. The respondent submitted at hearing why the Tribunal should not accede to the applicant’s application. It was submitted that the applicant had failed in his duty under section 27(4) of the Act. It was further submitted that from the evidence it was unclear as to whether the applicant properly understands what boundary violations are.

95. It was submitted that Dr Allnutt, in his report, agreed that the applicant was only some way along the spectrum of understanding towards an insight into these boundaries, but that the applicant was not currently at a level of understanding.

96. The respondent submitted that, in their view, the Tribunal does not need to find positively that the applicant anally raped the complainant/victim in 2011. The Tribunal only needs to be satisfied that there is a risk that the applicant did this thing. It was submitted that the Tribunal has the evidence of the victim, the expert, and all concerned in the criminal matter.

97. The respondent submitted that if the Tribunal is satisfied that the applicant is not telling the truth, then there is another option open to the Tribunal:

• Option (A) is to accept the victim/complainant’s version of events, and the corroborating evidence.

• Option (B) consider the applicants raft of behaviours, or

• Option (C) accept the DEC’s findings in respect of their investigation and report of the incident, in that that process was concerned with and focused on similar issues, being risk to children.

98. In the respondent’s submission the evidence of the behaviours outside of the criminal allegations is enough to establish real and appreciable risk.

99. If the Tribunal couples the non-criminal matters with the others, then in the respondent’s submission it is only open to the Tribunal to find that the applicant is a real and appreciable risk.

100. In concluding, (1) at the standard of Briginshaw a positive finding could be made on the available evidence, (2) There is a very real risk that the behaviour occurred, and (3) even if 1 and 2 are not established, the applicant’s prior breaches (before the criminal allegation), his own expert’s view concerning a lack of professional boundaries, lead the Tribunal to dismissing the application.

Applicant’s Submissions

101. The applicant made oral submissions at hearing and filed written submissions. The applicant in oral submissions referred to paragraph 52 of their first set of written submissions concerning the observations of the expert Dr Allnutt.

102. The applicant referred to a finding in an IRC case of L v The Commissioner for Children and Young People and anor [2008] NSWIRComm 195 at [32].

32 Bringing all these matters together in the present case shows the applicant to have committed a number of serious sexual offences against his sisters when they were at a very young age and on some occasions, using force to make them comply with his wishes. Those offences were committed when he was 15 and a half years old and in the following 40 years he has not offended again. He has worked closely with thousands of children in his 35 years of teaching and he has the support of senior teachers and apparently his colleagues as a valuable teacher and a person to be trusted with children. The District Court has found him to be a person of good character who has demonstrated contrition for committing these offences. The significant piece of evidence that completes a favourable picture of the applicant is provided by Dr Allnutt's report. During submissions, all parties accepted that medical experts will not concede that a person is able to be classified as posing no risk of committing serious sexual offences but in the case of the applicant, that risk is calculated to be at its lowest level.

103. The applicant submitted that an expert would be unlikely to classify a person as ‘non risk.’ In reference to the expert report the applicant submitted that the assessment concerning the applicant’s interaction appropriately with others (including children) is supported by the witness statements. Supporting evidence (from prior to the serious incident allegation) was annexed to the applicant’s evidence.

104. It was submitted in written submissions that the repetitive form of the statements in support of the applicant and the language used, was not an attempt to minimise the conceded behaviour, as it is clear that each witness is aware of that behaviour. The applicant submitted that due to his being deeply ashamed of the behaviour he experienced difficulty discussing the conduct with the witnesses.

105. The applicant submitted that it would be an error for the Tribunal to reject the witness statements, from persons who speak highly of his character and his involvement with children. It was submitted that those statements demonstrate that the applicant was not previously a risk to children in his care and that (he) is no more likely than any other person to be so in the future.

106. In oral submissions the applicant submitted that it would be an error of law to rely on the IRC pleadings as evidence of the applicant’s view or position on the matter. The pleadings are a legal document signed by the applicant’s Solicitor and, it was submitted, had only been prepared in an industrial context, following a body of law that establishes that ‘out of hours’ conduct attracts less weight when considering conduct/behaviour warranting dismissal from employment.

107. Reference was made to the case of King v Collins [2007] NSWCA 122 whereby authority exists concerning the provenance of a statement and inferences as to an individual’s credibility as a result. At paragraph 36 a distinction similar to the one submitted appears from the Court’s reasoning. The context and the purpose of the statement should be examined prior to scrutinising the basis of any omissions or lack of detail. The Court observed:

36   There is, however, a separate point which is that the omission of particular material must be assessed against the purpose and nature of the documentary record, the circumstances in which it was created and by whom. As Mason P noted in Davis, there may be various reasons why hospital records “make no mention of the mechanics of” an accident, in circumstances where the mechanics of the accident have “little to do with the diagnosis and treatment of an obviously serious injury”: at [36]. In other circumstances, it may be necessary to give consideration to the context of a particular statement or omission in particular documents. Thus, although the workers compensation insurer’s claim form asked “How did the accident occur, and what were you doing at the time?” it also gave an example – “(eg. slipped while climbing a ladder.)” It did not suggest that the reason for slipping needed to be identified. Further, the motor accident claim form, in a section in which the plaintiff had stated that he had “slipped on step while exiting truck then fell backwards onto the step which is what caused my injury” had merely asked for:

“Brief description of injuries received in the accident.”

108. It was submitted by the applicant that Dr Allnutt’s references to a lack of insight is purely due to the out of hours nature of the incident. Counsel submitted that it is not necessary to make a finding. It was submitted that to make a positive finding would be the height of unfairness to the applicant.

109. Reference was made to Briginshaw v Briginshaw [1938] HCA 34 in respect of using inexact proofs. Counsel referred to paragraphs of the case of BKE which addressed this issue. At paragraph 29:

29. In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “ inexact proofs ” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

110. In concluding the applicant in oral submissions stated that in respect of ‘risk’ the applicant was at the lower end of the risk scale, and that of significance was the fact that it had been 5 years since the incident at the time of the hearing.

Respondent’s further submissions

111. The respondent made further submissions at the close of the final day of the hearing. Reference was made to page 217 of Exhibit ‘R1’ (the section 58 documents) being a letter to the Children’s Guardian concerning the ‘out of hours reference’ and the submission that the applicant must have approved the content of that letter/submission.

112. It was submitted that all of the serious aspects of the incident/allegations the respondent had put these matters squarely to the applicant in cross-examination. In closing, the respondent commended the approach and observations about M and M as referred to in BKE to the Tribunal.

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.

113. The allegations are set out at various points earlier in these reasons. The significant issue is that the Crown case concerned serious allegations that the applicant had penile anal intercourse with the complainant, and she was not consenting. The applicant denies these allegations. The applicant concedes that the complainant/victim masturbated the applicant inside his shorts until he ejaculated. The incident occurred at the applicant’s residence. The complainant was a 16 year old female student at the High School where the applicant taught. Whilst the applicant did not at that time teach the complainant (nor had he been formally assigned as her teacher in the past) at various times, as a teacher he had direct responsibility for the complainant at the school. The applicant and his adult male friends had been drinking and there was evidence (not refuted) that the complainant was given alcohol whilst at the applicant’s residence.

114. One incident concerned the group being in a spa bath together, whereas later the complainant was engaged in a sexual act on a mattress and two adult male participants (including the applicant) were alleged to have participated in the act without consent. The Crown evidence included the applicant’s semen being located in the crotch of the complainant’s jeans, which the Crown submitted was consistent with drainage (following internal ejaculation). The applicant’s version is that he did not touch the complainant in the spa bath (but did notice her significant state of undress). His version was that whilst she was having sex with Male 2, the complainant reached down the front of his football shorts and placed one hand (and later the other hand) around his penis and masturbated the applicant until he ejaculated towards her lower front/groin area/upper legs. This occurred in a darkened room. The applicant was charged with a number of serious offences and acquitted by a jury following trial.

115. The seriousness of the allegations is significant in that they contained indictable charges, and occurred (from a child protection context), in circumstances involving a student and a teacher of a child under the age of 18 years. We note that the matters occurred in company.

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

116. The serious incident/allegations occurred in 2011, 5 years prior to the hearing of this application. The allegations relate to matters on the evidence and material before the Tribunal that has not been repeated in the intervening years. We note that the applicant was dismissed from his position as a teacher and notwithstanding IRC proceedings has not since worked with children.

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

117. The applicant was approximately 33 years old at the time of the alleged incident/allegations

(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.

118. The victim in the section 30(1)(a) allegations was 16 years old. The victim/complainant was a child and was a student at the school where the applicant at the time taught. The applicant was significantly aware of both of these matters.

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

119. The difference in age between the applicant and the complainant/victim was approximately 17 years. The relationship between the two was that they knew of each other due to their attendance at the same school 5 days a week, however there was no other connection/relationship between the two.

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

120. The applicant is aware that the complainant was in year 11 at High School and approximately 16 years old at the time of the incident/allegations. The applicant is therefore aware that the complainant was a child.

(g) The person's present age.

121. At the time of the hearing the applicant was 38 years of age.

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

122. The applicant does not have a criminal record as he has never been convicted of any criminal offence.

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

123. The Applicant provided a psychological report in support of his application from a Forensic Psychiatrist. That report indicates low risk of committing ‘further boundary breaches’. However during the hearing it became clear that the expert had incorrectly understood the workplace investigation to have supported the applicant’s version of events.

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

124. The applicant tendered a detailed affidavit and an expert report in support of his application, and was subject to extensive cross-examination at hearing. In addition the applicant tendered a significant number of witness affidavits supporting his application. These matters have been detailed in the evidence set out above in these reasons.

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

125. The respondent submitted that the applicant is not a witness of truth, and as a result there continues a significant risk to the safety of children should the applicant be granted a clearance. The respondent filed detailed submissions at the conclusion of the hearing which analysed the applicant’s own evidence at hearing, and highlighted the matters observed by the Tribunal in giving notice to the applicant of our preliminary view of his evidence.

Consideration

126. In our view there is a significant question concerning the complainant’s credibility in the giving of his evidence on oath at the hearing. We understand why an accused person might change aspects of their version of events following an allegation and leading up to investigation and (in this instance) trial, and matters pertaining to the rights of an accused person. However, we are concerned at the significant inconsistencies in the applicant’s evidence in these proceedings albeit with the history of an acquittal.

127. As identified in the evidence at hearing, the applicant admitted to opposing counsel in the trial that he was prepared to lie and tell the truth when it suited him. Whilst as we observe above, that such an approach might not be entirely unusual when someone is facing significant charges, our concern is with the quality of his current evidence.

128. We have some very real concerns that the applicant’s purpose in giving evidence was not to tell the truth at all times, but to respond to the Children’s Guardian’s case in whatever manner would be most favourable to the applicant. We base these concerns on the somewhat evasive (declining to fully answer) and inconsistency of his answers.

129. We note that at the conclusion of the first day we put the parties on notice about our proposed view, and preliminary finding as to his credibility. (See paragraphs 92 and 93 above). Whilst there is no onus on the applicant in these section 27 proceedings, we reaffirm what we said at the hearing in respect of the applicant’s duty under section 27(4) of the Act.

130. The Supreme Court has recently revisited the correct approach that the Tribunal should take when making a finding on otherwise unproven allegations, and then moving to the substantive consideration of risk.

131. In the matter of Office of the Children's Guardian v CFW [2016] NSWSC 1406, Harrison J. observed the following concerning the approach arising from observations made in BKE.

The statutory test

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 Office of 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 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 came 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 an 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.

132. The applicant's evidence in written and oral statements are that the matters as alleged did not occur.

133. We note that the allegations were substantially tested at the hearing. It would therefore appear that on the balance of probabilities that some positive finding could be made with regard to the sexual allegations.

134. If a finding needed to be made on that matter we would find that the allegation as to what the applicant says occurred is not credible. We observe this when we have regard to the inconsistencies that the applicant gave as to what he says occurred, what he saw, what he didn’t see, what the complainant did/did not do, and matters generally relating to his evidence. (E.g. whether he could see/observe or not).

135. There is a suite of pre-trial evidence which in part is explained away by the applicant. (The telephone intercept content). However various matters concerning the applicant’s version of events, (masturbation by the complainant rather than rape by the applicant), is first raised in oral testimony at the trial. In our view the evidence that the complainant allegedly pulled his shorts down is a crucial issue which was never raised in the earlier answers to open questions as to what occurred. The applicant’s evidence (in our view) was not credible in dealing with the issues of how the complainant placed her hand down the front of his shorts, how they were possibly pulled down if they were tied with a drawstring around the waistband, and how if all that occurred (as the applicant stated), his semen was in the location it was discovered.

136. After considering the evidence we are not satisfied that the version of events given by the applicant is credible, and we so find. We have avoided making any finding on the more serious version of events, as in our view, notwithstanding the significant evidence of the Crown expert, and the complainant’s sworn testimony, the current proceedings do not provide that level of proof.

137. These proceedings did not enable us to be reasonably satisfied to the civil standard, that there was an exact alternate version of events after discounting the applicant’s version. On this basis, we are not able, on the balance of probabilities, to make a positive finding that the alleged behaviours did not occur. Therefore on many of the issues we cannot make a positive finding that the alleged behaviours occurred or did not occur, but find it highly unlikely that all of the behaviour involving the applicant (and Male 1 and Male 2) was consensual at law.

138. We note that the ‘masturbation allegation,’ is provided by the applicant as his evidence of some sexual activity occurring. In discounting the veracity of the specifics of this version (as given by him), we note that other sexual activity must have taken place (having regard at the very least to the physical/forensic evidence). Therefore in our view we are able to make a positive finding on the balance of probabilities that relevant conduct, conduct relevant to harm and therefore risk, has taken place.

139. In our view the evidence establishes that at its lowest (the applicant’s version) his behaviour was entirely inappropriate bearing in mind his knowledge of the complainant, and that this for those reasons creates significant harm and risk of ongoing harm to the complainant and/or any children. This is particularly so having regard to the context that it took place in. We note, to the extent relevant, that the applicant’s expert agrees with this position, even though the finding is a matter for the Tribunal.

140. We doubt that from a context focused on risk of harm and damage to a student, whether such behaviour occurred on school premises or not is somewhat immaterial in the current matter. In our view a student would have an expectation of safety if there were reason to enter a teacher’s residence in the same way as they would have an expectation of safety on school premises.

141. At its highest, if the entire version of events of the complainant was to be accepted, then in our view the level of inappropriateness (leading to risk) remains the same, the allegations merely become more serious in respect of the criminality, and the ensuing greater level of harm to the victim.

142. Notwithstanding that lack of a positive finding on the serious allegation (as specifically put forth by the Crown), in addition to the finding that we have made, on the evidence before us, we are not satisfied that the applicant has any real insight into the matters relating to boundary issues, and progress towards having an appropriate understanding and ability to provide a protective environment to children. The opinions of the expert were significantly qualified and somewhat revised following the provision of further evidence and factual propositions during examination at the hearing.

143. In our view, the applicant poses a real and appreciable risk to the safety and well being of children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we so find.

144. In consideration of real and appreciable risk based on consideration of all the circumstances we find that the correct and preferable decision is to affirm the decision by the Children’s Guardian.

Conclusion

145. 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. All material has been considered and in our view that material was given significant weight. Of particular scrutiny was the evidence of the applicant and the need to bring the parties back on that issue. In particular the applicant's evidence, his witnesses and the expert evidence were considered to a significant extent in determining the major issue for determination, whether the applicant poses a real and appreciable risk to the safety of children and young persons.

146. For the reasons set out above, we reach the following conclusion.

147. The evidence and material referred to in these reasons in our view establish that the applicant currently poses a real and appreciable risk to the safety of children and we so find.

148. The evidence and material received by the Tribunal also establishes that we cannot be satisfied that the applicant does not pose a risk to the safety and wellbeing of children.

149. 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.

150. In our view having regard to all of the material before the Tribunal, to the requisite standard the applicant currently poses a risk (which is real and appreciable) to the safety of children.

151. It therefore follows that the correct and preferable decision is for the Tribunal to affirm the decision of the Children's Guardian.

Orders

1. The decision of the Children's Guardian dated 6 November 2015 to refuse to grant the applicant a Working With Children Check clearance is affirmed.

2. The application is dismissed.

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

Registrar

Amendments

10 May 2017 - typographical error paragraph 105

Decision last updated: 10 May 2017