CKU v Children's Guardian - [2024] NSWCATAD 376

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CKU v Children’s Guardian [2024] NSWCATAD 376
Hearing dates: 27 June 2024, 28 June 2024
Date of orders: 12 December 2024
Decision date: 12 December 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member (Legal)
M Maher General Member (Community)
Decision:
(1) The decision of the respondent dated 13 December 2023 to refuse the applicant’s Working With Children Check Clearance is set aside.
(2) The respondent is to grant the applicant a Working With Children Check Clearance.

Catchwords:
ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children – actual risk – testing of evidence – fairness to a party

Legislation Cited:
Administrative Decisions Review Act 1997
Children and Young Persons (Care and Protection) Act 1998
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Civil and Administrative Tribunal Act 2013

Cases Cited:
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336
Children’s Guardian v CKF [2017] NSWSC 893
Children's Guardian v CXZ [2019] NSWSC 1083
CHB v Children’s Guardian [2016] NSWCATAD 214
CKU v Children's Guardian [2017] NSWCATAD 36
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CXZ v Children’s Guardian [2020] NSWCA 338
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409
M v M (1988) 166 CLR (HCA)
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455
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.
Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:
Nil

Category: Principal judgment
Parties: CKU (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
L Geddes (Respondent)
Solicitors:
Self Represented (Applicant)
NSW Crown Solicitor’s Office (Respondent)

File Number(s): 2024/00012626
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

This applicant seeks administrative review of a decision by the respondent refusing his Working with Children Check Clearance (WWCCC). The clearance was refused because the respondent (the Office of the Children’s Guardian) was satisfied that he posed a risk to the safety of children.
The applicant is referred to as ‘CKU’ in these proceedings. CKU is the applicant's pseudonym used in these proceedings in conformity with an order made under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) on 15 February 2024 restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. In order to prevent constructive identification of the applicant some aspects of his occupation and related matters are referred to in general rather than specific terms. We also refer to members of his family and personal referees with pseudonyms in order to prevent constructive identification.
CKU initially applied for a WWCCC in 2015. In 2015 and 2016 the Children’s Guardian conducted a risk assessment and determined that CKU posed a risk to the safety of children. In 2016 CKU applied to this Tribunal for administrative review of that decision. In September 2016 the Tribunal heard CKU’s application and in January 2017 refused CKU’s application for a clearance (CKU v Children's Guardian [2017] NSWCATAD 36) – (‘CKU No 1’).
Because of the provisions of s 13A of the Child Protection (Working with Children) Act 2012 (the WWC Act) CKU was prohibited from reapplying for a clearance for five years. The section provides:

13A Embargo after refusal of application or cancellation of clearance

(1) A person who is refused a working with children check clearance, or whose clearance is cancelled under section 23, is not entitled to make a further application for a clearance—

(a) until 5 years after the date notice of the refusal or cancellation was given to the person, or

(b) unless a further early application is permitted under this section.

(2) A further early application is permitted if, after the date of the refusal or cancellation—

(a) relevant proceedings pending at the date of the refusal or cancellation are withdrawn or dealt with without the person being found guilty of the offence, or

(b) a relevant finding of guilt is quashed or set aside, or

(i) is quashed or set aside, or

(ii) otherwise expressly or impliedly ceases to have effect.

(3) In this section—

relevant, in relation to proceedings or a finding, means relevant to the refusal or cancellation.

As CKU’s refusal by the Children’s Guardian was issued in 2016, he was prevented from reapplying until 2021. CKU’s application for a clearance was essentially refused for the same reasons that his 2015 application was refused. In both instances the Children’s Guardian conducted a risk assessment because of the presence of matters in CKU‘s history in the nature of charges concerning indecent assaults and sexual assault of a child. CKU was acquitted of all charges but following the risk assessment the Children’s Guardian determined that CKU was a risk to the safety and well being of children.
Like the earlier application, due to the presence of ‘trigger’ matters in CKU’s history, pursuant to s 15 (4) of the ‘WWC Act’ the Children’s Guardian was required to conduct a risk assessment of CKU as there were disclosed matters in his history which conform with matters listed in clause 1 (1) (b) of Schedule 1 of the Act. That matter related to CKU being charged by Police with various offences in the nature of sexual assault and unlawful sexual intercourse approximately 10 years prior to the current application.
Having conducted the risk assessment during 2021, 2022 and 2023 the Children’s Guardian notified CKU in August 2023 that they proposed to refuse the clearance. After CKU had a chance to respond to the proposed refusal, (the basis of the proposed refusal being that the respondent was satisfied that CKU posed a risk to the safety of children), the Children’s Guardian made their decision and refused the clearance.
Having considered all of the evidence and material before us, and the matters set out in s 30 (1) and (1A) of the WWC Act, for the reasons given below we are not satisfied that CKU remains a risk to the safety and well being of children.
As a result of this finding the decision of the respondent will be set aside, and CKU will be granted a WWCCC.

Background

CKU had previously applied in 2016 for a WWCCC in the years following his acquittal of serious criminal offences. As noted above initially the Children’s Guardian refused the clearance determining that CKU posed a risk to the safety and well being of children following a risk assessment. On review the Tribunal reached the same conclusion, determining at [116], [119] and [123] of CKU v Children's Guardian [2017] NSWCATAD 36 that:

116. The Tribunal is comfortably satisfied that the allegations made by the complainant show a level of consistency and credibility in the level of detail which moved from grooming behaviour to penetrative sexual acts. The denials of the applicant have also been consistent, but the applicant’s behaviour in responding to later emails and his explanations in relation to his behaviour, particularly in relation to the allegation that the complainant asked him who he would marry if his wife died, and his story told to the complainant and his wife about the early return to the complainant’s home country, do not lend sufficient weight to those denials. In all of the circumstances, and considering all of the evidence in both the criminal trial and before the Tribunal, it is open to the Tribunal to find that the allegations are established. That finding does not automatically resolve the issue of whether the applicant poses a risk to the safety of children.

119. Until there is an acknowledgement of the extent of the applicant’s behaviour and appropriate action taken to address the causes of the behaviour, there remains an unacceptable risk of repetition of the behaviour. …

123. In the circumstances of this matter there remains an unacceptable risk that the applicant will consider he is entitled to behave in a similar manner in the future. The applicant is quite positive about himself and the future, and lacking in self-criticism. This characteristic can make him seem somewhat overbearing as identified by Dr Lennings. The applicant can be quite controlling in his relationships with others, and somewhat domineering, as it would appear it was with the complainant. Any child in a similar position to the complainant would likely find it difficult to resist the applicant’s behaviours or to make a complaint which would be immediately acted upon

On the earlier review the Tribunal made a positive finding at that time that the behaviour as alleged, occurred, to the civil standard as noted at [123]. The trajectory of CKU’s earlier application and assessment before the Children’s Guardian essentially is similar to the current matter before the Tribunal.
In 2015, 2016 and 2017 significant reliance was placed on the criminal prosecution against CKU. Because of the Children’s Guardian and the Tribunal’s weighing of the evidence concerning the serious criminal charges, findings were made that CKU posed a risk to children. The earlier decision of the Tribunal occurred under the original provisions of the WWC Act which required the Tribunal (and the Guardian) to determine solely whether an applicant was a risk or not. Since CKU’s initial application to the Tribunal the WWC Act has been amended to require that applicants or persons who are subject to a risk assessment, if it is determined that they do not pose a risk under s 30 (1), then further determinations as to the ‘reasonable person test’ and the ‘public interest’ in granting the clearance are required. Section 30 (1A) provides:

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

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

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

In the earlier proceedings CKU was not subject to these extra consideration requirements but as he was considered a risk by the Tribunal further consideration would have been unnecessary even if the amendments applied.
Following the five year embargo CKU reapplied for a WWCCC in July 2021. The Children’s Guardian conducted a risk assessment on the basis that CKU had proceedings commenced against him for offences set out in Schedule 1 of the WWC Act. It appears on a reading of s 14 that any applicant previously subject to an assessment requirement must again be subject to a risk assessment because the provisions of s 14 apply again to such an applicant’s circumstances as a matter of record.
In CKU’s case the risk assessment was in similar terms to the earlier assessment. In respect of the earlier assessment at page 518 of the Children’s Guardian’s material the Notice of Proposed Refusal of Application dated 30 November 2015 sets out reliance on the criminal charges and the different standard pertaining to a risk assessment compared with the criminal standard. The Notice of Final Decision in January 2016 does not elaborate beyond the proposed decision or provide a statement of reasons unlike the current matter. However as noted above it is clear that the existence of the charges, and the consideration of the evidence upon which those charges were based resulted in a finding that cumulatively CKU was a risk to children in the Guardian’s view.
Turning to the current matter, the Reasons for Decision (Attachment A of the Notice of Final Decision dated 15 December 2023) refers to CKU’s charges being child related where CKU was in a position of trust over the child, an acceptance of the allegations being conduct that occurred, and the subsequent finding that in those circumstances CKU was currently a risk to children. By accepting the allegations as having occurred aspects of the allegations amplified the risk due to factors such as a pattern of grooming and escalating behaviours, violence, and the sexual nature of the conduct.
In their reasons, the Children’s Guardian moves through the remaining criteria in s 15 of the WWC Act and notes that there has been a passage of further time with the matters linked to 2004/2005. References to a generally pro-social life and favourable employment history noting child related work, is referred to in the reasons. However that factor is considered limited as CKU was supervised in that child related work.
Reference is made to CKU’s stated changes in his behaviour and in effect ‘having his guard up’ in order to avoid allegations arising, is discounted by the Children’s Guardian due to CKU’s consistent position that he never offended. Independent expert evidence (of two experts) is similarly discounted it appears on the basis of the denial of offending behaviour by CKU.
The Children’s Guardian relies on the earlier position of the Tribunal that CKU’s risk will remain elevated until he acknowledges his offending behaviour.
It appears that in the Children’s Guardian’s view there is an acceptance that the reported behaviour occurred, and that combined with the ongoing rejection of that position by CKU, then this is the main basis for the continued risk five years later. However in many ways (in the absence of earlier reasons being given), it would appear that the most recent reasons for decision could also be broadly applied to the earlier decision.
Because we find below that we are unable to make a positive finding on the evidence, and that in our view it appears more likely than not that significant aspects of the behaviour did not occur, we are unable to make the same finding as the Children’s Guardian. In such a position, CKU’s consistent rejection of the matters or denial takes on a different character, one which cannot logically or fairly be used to his detriment. We set out the legislative context of this review and the evidence by which we arrived at those conclusions below.
On 10 January 2024 CKU applied for administrative review by the Tribunal. The application for review was filed within the 28-day period allowed under the legislation.

Jurisdiction of the Tribunal

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 s 28 of the Act: Commissioner 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 ss 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.

The application for administrative review

The grounds of the substantive application (in summary) are:

1. The applicant vehemently denies the criminal allegations pertained in the reasons for decision that he was otherwise found not guilty of. The Applicant therefore considers that the decision-maker has erred in their assessment of the Applicant’s Application for a Working with Children Clearance and subsequent submissions.

2. The Applicant has otherwise not been charged with nor convicted of any other offence.

3. The decision-maker refers to the Applicant’s lack of remorse for the alleged incident. As the Applicant denies the allegations in totality, the Applicant considers this reason for decision to be baseless.

4. The Applicant otherwise considers that the situation which lead to the criminal allegations and proceedings were very niche and circumstantial. The circumstances of such would otherwise not affect the Applicant’s participation in child-related employment.

5. The decision-maker has primarily relied on the previous NCAT decision in relation to these matters. In circumstances where the Applicant denies and was found not guilty of the charges and where the Applicant has provided supporting evidence by way of forensic psychological report (that deems the Applicant to be at very low risk of recidivism) and multiple character references, the Applicant contends that the decision-maker did not place enough weight on this evidence in the circumstances.

More detailed grounds were provided in written material submitted by CKU.
The issue to be decided by the Tribunal is whether on the balance of probabilities CKU poses a risk to the safety and well being of children, or as the WWC Act states, a risk to children. In reaching this position the Tribunal is required to traverse section 30(1) and s 30 (1A) of the WWC Act and determine the correct and preferable decision. In addition, in reaching that position we are mindful of the Court guidance that the risk must be both real and appreciable, not merely any risk. Risk is determined at the time of the decision made by the Tribunal so in that regard the Tribunal is determining an applicant’s current risk.

The working with children legislative scheme

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: s 3 of the Act.
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: s 4 of the Act.
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 s 8(1) is an offence.
The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1)(b) of the Act). A child related role is set out in s 6(3) of the Act.

Other provisions of the Act deal with assessment requirements, which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act s noted at [14] above. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)) and Tilley v Children’s Guardian [2017] NSWCA 174.
Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions. 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) A person whose clearance is cancelled by the Children’s Guardian under section 23 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.

(3) A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

(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.

(8) The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person’s employer.

Section 30 sets out the factors that the Tribunal must consider in determining a review application in order to determine risk. Section 30(1) of the Act provides:

30 Determination of applications and other matters

(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,

(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 criminal history and the conduct of the person since the matters occurred,

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

(i1) any order of a court or tribunal that is in force in relation to the person,

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

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,

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

If at the conclusion of the s 30 (1) process the Tribunal determines that an applicant for a clearance is not a risk to the safety of children, then the Tribunal must consider the matters set out at s 30 (1A) of the Act.

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

Only after an applicant has successfully navigated s 30 (1) and (1A) can the Tribunal grant a WWCCC on administrative review.

Burden of Proof

The jurisdiction of the Tribunal under s 27 of the Act has been found to be 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].
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].
An application pursuant to s 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. However, there is no statutory presumption that the applicant is a risk to children unlike an applicant for an enabling order under s-28 of the Act.
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 s 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". ...'

We note that there is a statutory definition of ‘risk’ at s 5B of the WWC Act by reference to ‘risk to safety of children’.

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

As noted above an application under s 27 of the Act is an administrative review. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

The hearing

The matter was heard over two full days. CKU gave evidence at the hearing, as did his spouse, a lay witness and one of his expert report writers. All witnesses were subject to cross examination. The Children’s Guardian did not call any witnesses of their own.

Written Evidence

Applicant’s written material

The applicant filed a number of written items in support of his application.

Exhibit ‘A 1’: the annexure to the application for administrative review, (see [24] above).

Exhibit ‘A-2’ Statutory Declaration of ‘A.D.’ dated 30 April 2024.

Exhibit ‘A-3’ Statutory Declaration of ‘J.F.’ dated 21 may 2024.

Exhibit ‘A-4’ Report by Forensic Psychologist C.Fercher-Barrett dated 30 October 2023.’

Exhibit ‘A-5’ Statutory Declaration ‘of ‘K.A.’ dated February 2024.

Exhibit ‘A-6’ Reference ‘R.I.’ dated 21 February 2024.

Exhibit ‘A-7’ Statutory Declaration of ‘J.H.’ dated 17 April 2024.

Exhibit ‘A-8’ Screen shots of Message Board (4 pages plus covering correspondence) filed 24 May 2024.

CKU also filed detailed written submissions on 29 April 2024 and further submissions on 21 June 2024.

Respondent’s written material

The respondent filed substantial material under s 58 of the ADR Act and material obtained since the commencement of the proceedings under s 31.

Exhibit ‘R-1’ Section 58 documents filed 7 February 2024, 1070 pages.

Exhibit ‘R-2’ documents obtained under s 31 of the Act - 81 pages filed 16 July 2021.

Exhibit ‘R-3’ further documents obtained under s 31 of the Act -55 pages filed 30 August 2021.

The Children’s Guardian also filed detailed written submission on 7 June 2024.

Brief background summary of the trigger offences:

In 2013 CKU was charged with 10 offences concerning a female victim aged 13 or 14 years. Two of those charges were extremely serious relating to sexual assault charges. The offending was alleged to have occurred during the period November 2004 to January 2005.
The first trial miscarried. During those proceedings the complainant (victim) gave evidence and was cross examined. The second trial resulted in nine not guilty verdicts in favour of CKU. On one charge the jury was unable to reach a verdict and that matter was eventually no billed. In 2016 NCAT affirmed the decision of the Children’s Guardian to refuse CKU’s WWCCC.

CKU’s evidence at hearing

In evidence in chief CKU referred to a view put forth by the Children’s Guardian that in the reasons for refusal they had noted that the victim was isolated with the effect being to make her more vulnerable. CKU rejected this characterisation as it was beyond any control and not due to any actions of his.
CKU said that the victim / complainant was a South African national of British and Boer (Dutch) heritage.
In responding to submissions concerning therapy and yoga performed with the victim CKU gave evidence that the yoga was not physical but more meditative in nature in his cultural context.
In cross-examination CKU confirmed that the victim was a female child (13 years old). She was 13 years of age when she came to stay with his family and had turned 14 by the time that she left. The victim was from India and her mother was in India and her father in Sydney. CKU said that the victim had lots of contact with her father while she was in Australia. CKU referred to the period as ‘shared custody between the father and CKU’s family’. During the period the victim slept over at her fathers on four occasions but stayed at CKU’s residence the rest of her stay. Her father funded her living expenses.
CKU agreed with the proposition that if the offences had occurred then they would have a terrible impact on the victim and that all children are considered vulnerable.
CKU acknowledged that they practiced Yoga and that it was more accurately described as meditation. He said that his wife was present at the residence a lot of times when the victim was there. Various serious propositions were put to CKU in the witness box from touching the victim, stoking her belly, escalating to touching breasts and crotch and comments about how that would make the victim feel better. CKU denied ever doing any of the things that were put to him.
CKU said that the victim had complained to him about bad period pains and CKU said that he told the victim to talk to his wife not him about these matters. An allegation was put to CKU that the victim sat on top of him and he stroked her belly and his wife happened to witness this instance. CKU denied this. He also denied that his wife came into the room on another occasion and saw the victim ‘pinned to the floor’.
CKU also denied the more serious allegations that were put to him concerning digital and penile penetration whilst the victim was on the floor. He denied that there were ‘two’, ‘three’, ‘four’ or even ‘five’ penetrations.
Questions were put to CKU around why the complainant cut short her visit to Australia. The Children’s Guardian put it to CKU that he cut short the visit because he was concerned that the complainant had feelings for him. CKU denied that this was the reason and provided a range of reasons. A suggestion was made that the complaints father might influence the complainant to harm CKU’s wife. When asked why this was the case it was suggested that this was so that the complainant could marry CKU. CKU said that there was evidence given at his trial that the father of the complainant was poisoning people.
CKU said that during her trip to India the complainant was well behaved but the problems started when she wanted to come back to Australia. There was evidence that the complaint had inquired into CKU’s personal finances. Emails allegedly related to CKU were stated in evidence as not being his. A 17 June 2008 email was referred to by CKU as not being his email (email at page 460 of the s 58 bundle). CKU said that the ‘verb age’ in the email was not of his making and that the complainant had sent that email to him. It was suggested that he sent these emails as an adult to a child, which CKU denied.
CKU gave evidence that he had been self employed since 2017 and had worked in areas of martial arts and occupational therapy (OT). He had also worked with the Department of Veterans Affairs (DVA) and the NDIS providing disability services. CKU said that he had received one (HCCC) complaint in a 25 year career. When asked whether he had changed his practices since the HCCC complaint CKU said that he had, as he was being underpaid by not linking invoices to notes. CKU said that he did some training which was very important and since that time he had undergone a successful NDIS worker screening check. It appears that CKU is providing services to NDIS clients whilst not being a registered NDIS provider, which is permissible. CKU said that he was working with Plan Manager clients not Agency clients.
CKU said that both the DVA and NDIS were now ‘pushing for persons to have working with children clearances’ even when not taking on child related work. However he said that in his OT practice in future the clearance would assist because he will focus in neurodivergent clients and such clients would mainly be children.
It was suggested to CKU that two experts had described his personality as ‘overbearing’. In addition CKU had asked his wife to comment and she described CKU as ‘strong willed’. CKU in response denied that he is ‘dominant’ and said that he likes working by himself and denied that he is in a ‘position of power’ over his patients as suggested by the Children’s Guardian.
CKU said that the power balance between him and his patients was in the range of 50/50. He said that many of the patients have carers who observe him working with their clients. CKU said that during sessions he passes on skills to support workers and family members of the client. CKU said that in DVA matters and private OT client’s family members observe the sessions. CKU said that procedures are in place to ensure that the services are relevant to the clients.
Reference was made by CKU to a S.O.A.P. that he utilises for his work (Subjective Objective Assessment Plan). CKU said that under SOAP he is legally obligated to make notes which can be accessed.
CKU was asked how he would know that a person who was disabled was comfortable with what was occurring in a session. CKU said that the client, or Nominee or carer would communicate problems. CKU was then asked how he ensures that the patients are consenting to the treatment. CKU said that he follows the service agreement. At this stage the Tribunal utilised s 38 of the NCAT Act provisions to determine what strategies if any CKU employed. He said that he tries to obtain the client’s views to ensure that the client is happy with the service, he tries to obtain their or their nominee’s views.
CKU was also asked in respect of the information referred to earlier in his evidence that the complainant’s father had poisoned persons in the late 1990’s, and why with such information or knowledge he would let the complainant stay with him and his wife, CKU said that the complainant stood out as being different from the rest of her family.
In re-examination CKU spoke about the NDIS work referred to in his earlier evidence. He said that there were three ways to do that work, as a registered provider, which required a WWCCC, or working via the ‘My Plan Manager’ process, or as self managed. CKU said that previously he had been a registered provider and needed the WWCCC to return to that status.
The Tribunal again asked some question utilising the s 38 powers. In respect of the three months that the complainant stayed with CKU’s family we inquired as to how often she actually visited her father. CKU said that this was three to four times per week. CKU also was asked to elaborate on the poisoning allegations overseas. CKU said that there were two schools. At one school people became ill and the sickness was attributed by many to the complainant’s father. Why this was the case was not clear to the Tribunal. CKU said that these events occurred during the late 1990’s.
CKU elaborated further on this ground that he put forth that there was something inappropriate about the complainant’s behaviours and those of her family members. He expressed concern that the complainant’s sister was also influencing her to take action against CKU and his family. CKU said that the complainant looked up his and his wife’s bank statements and that this was seen as culturally inappropriate. CKU said that the complainant had suggested and believed that he and his wife had enough money to sponsor and support the complainant and a friend in Australia. When CKU confronted the complainant and cut off contact with her CKU said that she became vindictive and CKU then heard ‘sexual assault rumours’ shortly afterwards.

Evidence of ‘XX.’

As noted above CKU’s spouse gave evidence at hearing. We refer to the witness as ‘XX’ to prevent constructive identification of both CKU and his spouse. We note that she also gave evidence in the 2016 Tribunal hearing. In evidence in chief XX advised that she has 23 years experience in child protection with Government agencies. XX described her professional role as a child protection caseworker. She is a Team Leader, leading investigations to identify grooming behaviour following similar allegations and is a mandatory reporter on child protection issues.
XX denied in evidence that she ever saw CKU sitting on top of the complainant.
In cross examination it was put to XX that in many disclosure situations the allegations of abuse would be true. XX agreed with this proposition, but also said that in some circumstances there would be no truth.

XX advised that the complainant came to Australia due to problems with her behaviour in India, as well as to be able to see her sister and her father in Australia and to learn martial arts from her and to learn yoga from both the witness and CKU. XX agreed that the complainant did spend time alone with CKU in that only she was in his presence.
XX confirmed in her evidence that the complainant had experienced period pain during her stay. XX also confirmed that she had spoken to CKU about this during their Court preparation.
XX agreed that the complainant’s stay was cut short but she could not recall exactly why the complainant returned home early. XX was questioned in general terms about the poisoning allegations involving the complainant’s extended family. XX responded to the general issue by noting that any consideration and response to such a report would depend on the circumstances and this might explain why a risk had not been raised.
XX was asked whether she had discussed the case prior to today. She agreed that she had and that the statutory declaration was prepared because that was what their lawyers required.

Evidence of witness ‘J.H.’

‘JH’ the author of Exhibit ‘A-7’ gave evidence at the hearing. He adopted his statement as true and correct in evidence in chief. The statement refers to ‘JH’’s knowledge of CKU’s criminal proceedings and that they have known CKU as a friend and client for 24 years. ‘JH’ refers to their observations of CKU’s work with and interactions with children over that period and his own children (CKU’s) and that they had only ever witnessed (CKU) acting with professionalism and care.
‘JH’ also refers to the falling out between the complainant and CKU and that CKU had tried to retrieve his key from her and that the complainant has said that CKU did not realise the amount of ‘pressure that he was putting on her’. ‘JH’ said that in this context the complainant had threatened to say that CKU had raped her.
‘JH’ said that they had lived in Sydney from January 2005 to September 2008 and then went to the UK for three years and returned to Sydney in 2012. ‘JH’ said that they became aware of the District Court case in 2014 and 2015. When asked what the case was about ‘JH’ stated that it concerned allegations that CKU had raped an underage girl who was a student of his. Beyond that ‘JH’ said that they were not familiar with the actual or specific legal charges any that after a hearing the case against CKU was dropped.
When questioned about the Statutory Declaration (A-7) JH said that they wrote it themself. However the witness agreed that Item 1 of the Statutory Declaration was not written by them as it referred to the specifics of the charges.

Evidence of Ms Clarke Fercher-Barrett (Consultant Psychologist)

CKU’s expert witness provided a report (Exhibit ‘A-4’) and gave evidence at his hearing before the Tribunal.
In her evidence in chief the witness attested to the expert witness code of conduct and adopted her report.
In cross examination the witness confirmed that she had no therapeutic relationship with CKU having only performed assessments of him. The witness referred to the SPR 20 (Structured Psychological Recovery) which was utilised for CKU’s assessments being a structured professional judgement tool. The witness did not use the usual actuarial testing tools partially because CKU is not deemed an offender, but utilised a structured clinical judgement tool and her own clinical judgement.
The witness stated that tools are mainly useful when assessing convicted offenders and non convicted subjects. The witness opined that many individuals who have committed a sexual offence are not at risk of committing further sexual offences. Alternatively some who have not committed sexual offences are at a heightened risk of sexual offending.
The witness said that sexual violence is broad in scope including ‘non assault’ matters or behaviours. The witness confirmed that her assessment did not just involve a ‘90 minute telephone conversation’, but reviewed other material. That material was set out at [2.2] of the report including the earlier Dr Lennings report prepared for earlier proceedings on the same point. However the witness confirmed that she did not have the respondent’s s - 58 material.
On 5 June 2024 CKU was asked to send the s - 58 material to the expert but did not do so. It was suggested that as a result of this admission the report should carry less weight which the witness noted.
However having read the Tribunal’s 2016 decision the witness said that it has not changed the conclusions of her report from the assessment. However the witness agreed with the proposition that all instruments contain a margin of error.
The Section 58 material was forwarded to the witness during her evidence and a break was taken to allow the witness to read specific portions identified by the Children’s Guardian. The witness read pages 448 – 449 of the s 58’s (the emails between the complainant and CKU) and agreed that the language was over familiar or very familiar language, however the witness said that such language was not necessarily suggestive.
The witness said that if the emails were verified they indicate a lack of boundaries. However even if they are genuine, the witness said that they do not change her expert opinion that CKU is a low risk of sexual violence and risk to children. The witnesses stated that in her view CKU was still a low risk. The witness observed that if people are grossly inconsistent then it can effect what weight a clinician places on what they report. The witness observed however that CKU was not in that category.
The witness was asked about CKU’s personality in that it was described by others as overbearing. The witness said that CKU tended not to acknowledge common shortcomings about himself that we all (or most of us) would acknowledge.
The witness confirmed that for completeness she did perform an actuarial assessment of CKU with the method adopted being that she presumed that he was convicted of the offences for which he was charged. As a result of that testing and noting the time passed, CKU would still present as a low risk. The witness said that the passage of time is a significant factor but also the lack of any offending history.

Other evidence

CKU filed a number of character and occupational references where the authors were not required for examination by the respondent other than JH.
Many of the references attested to CKU’s positive experience with his and at times their own children. The author of ‘A-6’ referred to CKU working with children and interacting and engaging with children, teens and adults. The author sets out the detailed charges at the beginning of his reference letter.
The author of ‘A-2’ sets out the charges CKU was tried on and refers to a 23 year history with CKU. Reference is made to CKU’s work with and interaction with children in India 2001-2004, both as a trainer and as a responsible influence on the children. The author refers to a conversation with the complainant when she returned to India and spoke to the author at length about the trip and apparently spoke highly of CKU and his wife. The Tribunal notes that this witness was not required for cross examination at hearing.
The author of ‘A-3’ also sets out the detailed charge outcomes for CKU. The author declares that they provided information to the Children’s Guardian during one of their processes. It appears from the author’s evidence that the Children’s Guardian was separately inquiring to see if CKU was engaged in child related work without a WWCCC rather than anything related to perceived risk.
Many of the authors had their own direct experience engaging with CKU as either a colleague or client. All of the references were aware of adverse matters / the allegations concerning CKU and the complainant at least by the time that they swore or affirmed their Statutory Declarations.
Despite the fact that other than the reference by way of Statutory Declaration of JH, no author was required for cross examination as a witness, on the basis that they disclose significant aspects of the adverse context of CKU’s application, and that they are all given by way of a solemn promise or oath to tell the truth, in our view the references carry some weight in respect of s 30 (1).

Written submissions

Both CKU and the Children’s Guardian provided written submissions. Brief oral submissions were made at the hearing by the parties at the end of the evidence.

Children’s Guardian’s submissions

In oral submissions the Children’s Guardian submitted that the Tribunal can be satisfied that CKU does pose a risk based on the written material. They submitted that CKU spent time alone with the complainant and his spouse conceded in cross examination that he did spend time alone with the complainant and as a result it was submitted that she could not be certain that nothing occurred.
The Children’s Guardian submitted that the previous Tribunal made a finding that the complainant’s evidence was consistent and did not waiver during the trial. They submitted that the 2024 Tribunal today should adopt the 2016 NCAT reasoning and findings. The Children’s Guardian also submitted that on any view based on the available evidence the complainant was particularly vulnerable.
The Children’s Guardian submitted that the Tribunal should be concerned about the improbable evidence CKU gave as to why the complainant’s visit was cut short. They suggested that if the purported ‘poisoning history’ in the complainant’s family was correct that it was sufficient to refuse to allow the complainant to come to Australia and stay with CKU and his family. The Children’s Guardian submitted that if CKU’s evidence was factual then he should not have allowed the complainant to visit.
The Children’s Guardian submitted that CKU had not initially raised the ‘poisoning issue’ and that now all of these things are raised in order to put a gloss on CKU’s relationship with his client.
In respect of CKU’s assertions that the purported contentious emails were fraudulent or fake and not sent by him, the Children’s Guardian submitted that CKU had not put on any evidence to establish this. The Children’s Guardian submitted that the evidence of JH should not be given much weight because he had little information into the actual central allegations involving CKU.
In respect of the expert witness the Children’s Guardian urged the Tribunal to adopt caution in respect of the risk report. November 2004 to January 2005 was when the alleged conduct occurred. Reliance was placed on the approach in BKE v Children’s Guardian [2015] NSWSC 523 (BKE) at [33]. In this regard the Children’s Guardian submitted that even where the Tribunal cannot be satisfied that the behaviour occurred, the surrounding circumstances around the matter would cause concern.
The Children’s Guardian submitted that CKU’s concerns about the complainant going through their personal records and financial records and warning off the complainant as a result was a ‘smokescreen’.
In respect of the reasonable person test at s 30(1A) of the WWC Act the Children’s Guardian submitted that the reasonable person would be concerned that the Police and the DPP investigated the matter and tendered evidence at the trial. They submitted that the reasonable person would not allow CKU to engage in child related work with their child without supervision.
In respect of the public interest test at s 30(1A) the Children’s Guardian submitted that CKU is currently working five days a week and has clients on a waiting list and as a result the public interest in refusing the clearance outweighs the private interest in granting the clearance.
In written submissions the Children’s Guardian set out the legislative framework concerning administrative reviews of risk assessment decisions, as well as the statutory approach that the Tribunal must take. A history of the Court proceedings and previous application for a clearance and proceedings before the Tribunal are also set out.
Reference is made by the Children’s Guardian to the High Court’s approach in M v M (1988) 166 CLR (HCA) (M & M), concerning dealing with allegations of sexual abuse in the context of what is in the best interests of the child. Reference was also made to the approach in BKE concerning the making of positive findings or not. The Children’s Guardian then summaries the evidence concerning the s 30 WWC Act mandatory considerations by the Tribunal.

CKU’s submissions

In oral submissions at the end of evidence CKU submitted that the focus on the emails by the Children’s Guardian is misplaced. These emails CKU submitted had been examined prior to his charging and through both of the trials and the first NCAT proceedings. CKU characterised the emails as being loaded beyond what they really where with the ‘down throat’ reference with 2 likes. The ‘wink wink’ and long chain being relatively tame and explainable. He submitted that there was nothing sexual or intimate in the tenor of the emails so some individual words needed to be read in that context. He said that the Children’s Guardian saw these as somehow strong evidence of something but CKU said that when they were read and viewed in the context and consistent with his repeated sworn evidence about them they were easily understood.
The emails set out at 459 and 460 of the s 58 focus on the issues of concern in email communications according to the Children’s Guardian. CKU dismisses these emails in his submissions. An email from the complainant at 5:56 hrs 17/6/2008 says: hey just saying hi as I know that ur online and I’ll get a reply quickly coz usually u take ages to reply to my emailz [sic]. Reference is then made to a proposal concerning a training course and the instructor and curriculum. At 8:10 hrs CKU replies to the complainant: I take long to answer?bitch please. You’re the one just answering to this email look how long I sent it. Whatevaaaaaaaaa . The other emails sent by the complainant in this suite say: why are u so grumpy??? All im doing is saying hi and a jump down my throat??!!! [sic]. CKU responds: Didn’t jump down your throat what kind of analogy is that? So filthy jump down something else though. You knows it. CKU maintained that (a) he did not author these emails in the form displayed, (b) they appeared on any reading to be incomplete (in that the sequence of communication in the purported chain does not flow, and (c) they were deemed inadmissible at his trial.
CKU submitted that the complainant’s evidence falls into the group of not making sense. He submitted that the complainant in her Police report and written testimony refers to CKU’s wife purchasing lingerie however when in the witness box the complainant said that the wife purchased pyjamas. CKU also submitted that the complainant said in her testimony that she only saw her father two times when in Sydney but in reality she saw him four or five times a week. CKU submitted that the complainant’s evidence of the crimes changed with references to being raped brutally on the ground was baseless.
CKU also submitted that the second question of the Jury at page 1035 of the s 58 documents concerning the unusual behaviour of the complainant’s sister being the basis for bringing forward their departure from Australia, in the wider context that refers to assertions of poisoning.
CKU also submitted that both Dr Lennings’ original expert report and the current experts report both arrived at the same conclusion, namely that CKU was low risk of offending or harming a child. Despite Dr Lennings expert evidence the Tribunal previously determined to ignore the evidence of current risk (at that time).
CKU also submitted that the Children’s Guardian had sought to obtain Police material from overseas prior to him coming to Australia in 2002. Despite their searches nothing adverse arose and since being in Australia he had worked satisfactorily for both Aging Disability and Home care (ADAHC) and the Department of Education and Training (DET).
In reply the Children’s Guardian did not address the matters raised by CKU concerning the emails and noted that they did not have access to the transcript of Counsel’s summing up in the second Jury trial. They maintained their position that CKU is a risk to children and that a reasonable person would not allow CKU to engage in child related work with their child unsupervised and that granting a clearance was not in the public interest.

Consideration

CKU seeks a clearance in order to work with person with disabilities.
The issue in these proceedings wherever there are allegations that are unproven appears to us to be about not just determining whether the conduct subject of all of the allegations or charges occurred, and if so (or otherwise) whether that demonstrates a risk to the safety and well being of children. However more significantly as the Tribunal is conducting a review of the evidence and material as to risk, the matter for consideration is whether placing all of the material into our consideration, past and present, is CKU a risk today. What is CKU’s current likelihood of harming children? We take this clearly from the tenor of the case of CXZ referenced as follows:
The comments of Simpson AJA in the case of CXZ v Children’s Guardian [2020] NSWCA 338 at [51] and [79] have been regularly cited by this Tribunal when considering applications for WWCCCs.

51. Those observations are recognition that, while some allegations can be determined as substantiated, and some can be found to be without foundation (“groundless”) “very many cases” will not lend themselves to definitive factual determination. In those cases:

“… the court must 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.” (p 77)

…

79. I have set out above the source of this language: M v M (at first instance as recorded by the High Court at p 74), CFW at [16]). In my opinion it is unhelpful. There is no need to go beyond the language of the High Court in M v M, which (adapted to accommodate the Child Protection Act) requires the Tribunal to determine “whether on the evidence” (and that means the whole of the evidence) the applicant poses a risk to the safety of children if a clearance is granted to him. The language of “lingering doubt or suspicion” is particularly unhelpful in cases where, as here, the Children’s Guardian relies on multiple and disparate allegations to support the refusal to grant a clearance. That is because it tends to direct the Tribunal to compartmentalise the allegations and deal with each individually.

It is in this context that we undertake our role and also embark upon our s 30 (1) mandatory considerations as to risk as required by WWC Act.

Section 30 (1) considerations

Section 30 of the Act sets out the factors that the Tribunal must consider in determining a review application. We shall consider each in turn.

(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.

CKU’s application to the Tribunal is brought about by an adverse risk assessment triggered by the respondent becoming aware of the applicant being charged with a number of sexual offences. The allegations are extremely serious and relate directly to risk of harm to a child in a context of a overarching relationship of trust and authority for the wellbeing of the complainant.
All but one charge was dismissed and the sole remaining charge was no billed after the jury was unable to reach a verdict. The charges were ultimately withdrawn.

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

It is clear that the matters referred to under s-30 (1) (a) cover a period of approximately three months or thereabouts. They are said to have commenced in late 2004 and concluded in early 2005. It is almost 20 years since the matters as alleged are said to have occurred. Even if we find that they did occur notwithstanding their seriousness, a passage of 20 years with no other offending or matters of concern holds some weight in ameliorating risk.

CKU has undergone psychological assessments both at the time of his earlier application for a WWCCC in 2016 and in the current proceedings. Notwithstanding CKU’s lack of a clearance, he has engaged in gainful employment and on all available evidence (that of his spouse, referees and psychologists), leads a pro-social life with no other allegations arising.

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

CKU was 30 years old at the time of the alleged offending.

(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.

In respect of the trigger matters the victim was a child being 13 years old at the commencement of the alleged behaviour and 14 years old when it ceased a few months later.
The complainant was clearly vulnerable being a child and CKU was an adult. That vulnerability would have been amplified because the complainant was female and CKU male. He was also in a position of authority over her as he was responsible for her welfare and was also providing vocational instruction (on CKU’s own evidence).

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

The difference in age between CKU and the complainant was approximately 16 – 17 years.

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

In respect of the trigger matter it is clear that CKU knew that the complainant was a child under 18 years of age.

(g) The person's present age.

CKU was 49 at the time of the hearing and has now just turned 50 years of age.

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

CKU does not have a criminal record. All matters were withdrawn or dismissed. Criminal history as defined by s 5C of the WWC Act is:

5C Meaning of “criminal history”

(1) A person’s criminal history includes—

(a) convictions (including convictions that have been spent, quashed or set aside or for which a pardon has been granted), despite anything to the contrary in the Criminal Records Act 1991, and

(b) criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged, and

(c) convictions or findings to which section 579 of the Crimes Act 1900 applies (despite the provisions of that section).

(2) In this section—

conviction has the same meaning as it has in the Criminal Records Act 1991.

Despite this broad inclusion, the only matters falling within s 5C are the matters which caused a risk assessment. These being charges which were predominantly dismissed with one withdrawn. Those charges (captured as criminal history for the purpose of the WWC Act) are serious. They involve allegations of indecent and sexual assault of an adolescent female living away from her family. The indicted charges in summary are: assault with act of indecency in circumstances of aggravation (6 counts), sexual intercourse without consent in circumstances of aggravation child under 16 years (4 counts).

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

The applicant provided an Expert Report which made findings of low risk. This evidence and the earlier evidence of Dr Lennings (given little weight by the Tribunal in 2016) is independent expert evidence where the authors were subject to cross examination at each hearing. His spouse and his referees attest to his pro-social and professional and law abiding approach to matters. CKU himself in submitting that he is innocent and did not engage in the alleged behaviour submits that he is at no risk of reoffending (as he has not offended) and at low risk of offending generally.
Whilst the applicant and his expert witnesses assess his risk of harming children as low, the Children’s Guardian say that the risk is real and appreciable. That position appears based on a view that the conduct subject of the charges occurred in the manner said by the complainant. In particular the Children’s Guardian submitted that where the evidence assisted the complainant, in respect of fanciful explanations by CKU as to why the complainant would make up the allegations – a hopeful marriage and removal of CKU’s wife, CKU’s explanations were lies designed to place in the mind of others doubt as to the veracity of the allegations and reasons as to why the complainant would make such serious allegations. The explanation being that they were retaliatory in nature for CKU rejecting the complainant’s advances and plans. For this reason the Children’s Guardian accepting the complaints as credible, submits that the ongoing risk of CKU to children is real and that his continued denials amplify that risk.

(i1) Any order of a court or tribunal that is in force in relation to the person.

There is no relevant evidence or matters to consider under this criteria.

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

CKU tendered a number of character references in support, and the expert report. The applicant also gave evidence under cross examination at hearing. This material has been set out in some detail above. As we have already found, whilst the references carry some weight we reject the Children’s Guardian’s submission that they should carry little or no weight, deposing in most instances some knowledge of the matters before the Court and additionally where the witnesses have not been required for cross examination.

(j1) Any relevant information in relation to the person that was obtained in accordance with section 36A.

There is no material obtained under s 36A.

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

The Children’s Guardian’s concerns in their submissions are set out above. The respondent maintained that CKU is a risk to children. They submitted that the Tribunal should adopt the findings and the approach of the Tribunal in 2016 when the earlier review was heard.
Turning to how the Tribunal should discharge its statutory functions on the evidence we note the guidance from the Courts of record. In the case of BKE v Children’s Guardian [2015] NSWSC 523 Beech-Jones J sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Like the facts in BKE, certain matters in the current case were not settled, in that the Courts had not been a position to make any positive findings on the conduct and the applicant. In the current matter no matters were determined against CKU by a Court.
At pars 29 - 33 of BKE the Court observed:

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).

30. Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at p 70).

31. In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
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.
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 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 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.”

32. The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

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.

Unlike BKE the is no onus on CKU as he is not a disqualified person. The starting point is that CKU is not considered a risk but at the end of the risk assessment process CKU may or may not be considered a risk.
As noted in BKE, where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 at p362: That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities.
We will, make findings on the allegations to the extent that we can below. However, having made any findings that we can we reiterate that our substantive role is to assess risk, and whether specifically CKU poses a risk to the safety and well being of children and young people. We have based our consideration on all of the evidence given by the applicant at hearing (and in documentary form), as well as the other evidence witness and documentary given at hearing. For this reason we have set out above some of the evidence at hearing.

Findings

The necessity to make findings on adverse matters was set out in part in BKE and further addressed in the case of Office of the Children’s Guardian v CFW [2016] NSWSC 1406. In that case His Honour Harrison J said that the first proposition is to determine whether a positive finding can be made or whether the allegations can be quickly addressed as groundless. If a positive finding can be made then that matter will generally have a decisive impact on the outcome of the application. In CFW the Court also referred to a lingering doubt where a positive finding could not be made and the matter was left open. The Court observed that this would count against the applicant.
However, in the case of Children’s Guardian v CKF [2017] NSWSC 893 Davies J observed that the final proposition from CFW cannot be correct. At [56] the Court observed:

56. With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or “a lingering doubt or suspicion” counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children.

We note that since those cases the Court of Appeal in the case of CXZ has reinforced the matters about whether there is any practical need to make findings on every or specific allegations when the Tribunal is assessing overall risk. As Simpson AJA points out at 79 of CXZ set out at [117] above when noting that the language of M v M:

..requires the Tribunal to determine “whether on the evidence” (and that means the whole of the evidence) the applicant poses a risk to the safety of children if a clearance is granted to him.

Like the Children’s Guardian submitted in their written submissions, the position in BKE and CFW has been overtaken by the findings of the Court of Appeal in CXZ.
On our assessment, it is not possible to make a positive finding on the allegations which resulted in the risk assessment of CKU. Whilst the Tribunal in 2016 in CKU No 1 was able to make a finding on the basis of the matters that we set out at ([10] and [11] above), we are not able to reach a similar position of comfortable satisfaction. We are unable to be satisfied that the allegations are established. The behaviour of CKU, open to question as it was both in the criminal proceedings and the earlier Tribunal proceedings, does not in our view lend credibility to either the complainant’s or CKU’s version of events. However, his explanations are just that. He provides a reason which has not been disproved that the complainant was misplaced in her attitude towards CKU.
Having noted that the emails were not admitted into evidence, we do not agree that in either Tribunal proceedings (on the material before us) they are determinative of anything. As noted the Children’s Guardian appears to place the cutting short of the stay in Australia by the complaint and the email exchanges between her and CKU once she left, as determinative. We do not agree. CKU maintains that the ‘verb age’ or language used in the emails is not his.
If anything it appears more likely than not that the conduct as alleged did not occur, however without testing the complainant’s evidence further we are unable to make any finding to the effect that the conduct did not occur. The lack of any prior or subsequent adverse matters gives further weight to the conduct having been unlikely.
In our view it was not possible to test the evidence further in the scope of the hearing, nor is it particularly useful in assessing CKU’s risk today.

Finding as to risk

Based on a consideration of all of the evidence, we are not satisfied that the applicant (CKU) currently poses a risk to children, being a risk that is real and appreciable. In our view, on the evidence and material before us, and having regard to the weight of evidence, we find that the applicant does not pose a risk to the safety and well-being of children and young persons. The Tribunal had the benefit of observing CKU over a number of hours as he gave his evidence in a candid manner without assistance or prompting. Whilst he was candid there was also discernible a level of frustration that in effect this was the third time that he had to give evidence about the allegations brought by the complainant.
In our view the explanations as to what CKU told the complainant was the reason for bringing her flight out of Australia forward, (University classes starting up again) and the real reason (concerned about how she was reacting to his presence in her life following the comment ‘who would you marry if your wife - died,) are plausible. We say this having examined the evidence given by CKU in his trial, and in particular pages 987 to 991 of the s 58 documents.
Other than the trigger matter, there was no evidence of any direct risk to children in his behaviour. However in making this observation we note that if his behaviour occurred towards or even in the presence of children then it would be likely to cause significant harm to them. However there are no adverse matters in the intervening 20 years upon which we can place any weight. We have already addressed the continued denials / lack of insight arguments amounting to risk and rejected them. In the absence of being able to make a positive finding that the allegations are borne out, we place no adverse weight on those denials.
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 s 4 of the Act.

Section 30 (1A) consideration and findings

Having made the finding that we have, we are required to have regard to this section.
The section requires the reasonable person to allow his or her child to have direct contact with the affected person that was not directly supervised by another person whilst engaged in child related work. In addition the section requires that the making of the order be in the public interest.

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

In our view a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. As in the Victorian cases that we refer to below we are of the view that a reasonable person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk.
In our view the reasonable person would having examined all of the evidence and material, and noting the passage of time and the consistent accounts given by CKU and the complainant, would, like the Tribunal, be unable to make a positive finding on the matters. However for those reasons they would not entirely discount the allegations as baseless, but would retain an open mind on the matter.
However, if they were unable to be satisfied to the civil standard, and having arrived at the low risk threshold, they would have difficulty holding any concerns about CKU being engaged in child related work with their own child unsupervised.
Particular regard would be had to the conduct of CKU in the intervening 20 year period and the findings of the expert witness as to the applicant’s level of risk.
A reasonable person whilst approaching the matter with some caution would, in our view, find that any risk was insufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A). This would especially be the case if they determined that the matters as alleged simply did not occur which might remain a possibility for the reasonable person.
The reasonable person would acquaint themselves with the references (which are afforded some weight) and would determine that in respect of this section, those references provide positive evidence of pro-social matters concerning CKU. In that regard they would be comfortable in allowing CKU to engage in child related work today and in the future, where he was unsupervised.
The reasonable person is required to consider the matter objectively and in our view would reach a similar conclusion to the Tribunal on the same evidence.
We note that the case of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:

73. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

Like CYY and CHB, a reasonable person would be aware of the circumstances of the evidence before us, and as a result, we find that a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work
The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

74. The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations.

75. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

In our view there is nothing contrary to the notion of the public interest in the granting of a clearance in this matter. We find that the balancing of CKU’s right to engage in his profession as a business holder which provides services to benefit others, and his proposed expanded work into the disability sector, when contrasted with the protection of children, are in this instance complementary and in the public interest, as the issuing of a clearance would not pose an unjustified risk to the safety of children.
Consistent with the reasoning in PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 (PJR) we believe that it is in the public interest to grant the clearance. We note again given our finding under s 30 (1) that CKU’s level of risk is deemed to be equal to that of any member of the community.
At [45] of PJR VCAT observed the following in respect of the public interest.

The notion of “the public interest” is broad. Certainly I would regard a central consideration to be the need to protect children from sexual or physical harm by ensuring that people who work with, or care for, them are unlikely to inflict harm. In this regard, many of the factors that are relevant in deciding whether the giving of an assessment notice would not pose an unjustifiable risk to the safety of children are also factors that are relevant in assessing whether it is in the public interest to direct the giving of such an assessment notice. However the notion of “the public interest” might also embrace other considerations. In interpreting similar legislation in New South Wales it has been said that the right of a person to engage in work is relevant[18]. A similar contention might be advanced to the effect that a person has a right to engage in community affairs. It is not appropriate to seek to define the boundaries of what is in the public interest. But I do think it will usually be the case that it will be in the public interest to direct the Secretary to give an assessment notice to an applicant if the tribunal is satisfied that the giving of the notice would not pose an unjustifiable risk to the safety of children.
1. In our view CKU’s application is, based on a consideration of all of the evidence and noting that s 30 (1) and (1A) (a) have been traversed, it is open to conclude that it would be in the public interest to grant the clearance. As a result we find that it is the public interest to grant the clearance.
2. We note that the Children’s Guardian’s position on this point and the other threshold issues was predicated on a position that CKU committed the offences as alleged. We note however that irrespective of that position there has been no real engagement on CKU’s current risk other than tying that question to the 2003 / 2004 offending determination. This analysis appears to dominate the reasoning and the decision in first instance.
3. We note that as CKU is not barred from applying for a WWCCC and he is not a person referred to in s 18 (1) of the WWC Act, with no current proceedings or convictions concerning Schedule 2 offences, and as he is not seeking an Enabling Order, he is not presumed to be a risk.
4. The Children’s Guardian has relied upon the material that was before the District Court as well as their holdings from both applications and administrative reviews. In countering that material CKU has provided a previous forensic psychiatrist expert report and an up to date psychologist expert report, both of which conclude with evidence of low risk.
5. We note that but for these very serious allegations raised some 12 years ago in respect of matters said to have occurred at the end of 2003 and beginning of 2004, little adverse material has been identified. The Children’s Guardian’s understandable criticisms of CKU are all tied to the allegations and how he responded to them in the investigation, two trials, two risk assessments and two administrative review proceedings.
6. CKU has also presented with a pro-social history nearing two decades since the adverse matters were alleged to have occurred. These matters add to his expert findings as well as our assessment of the material before us in concluding that he is not a risk.

Conclusion

For the reasons set out above, we reach the following conclusion.
The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that CKU does not pose a risk to the safety and wellbeing of children.
In our view, having regard to all of the material before the Tribunal, CKU does not currently pose a risk to the safety of children.
It therefore follows that the correct and preferable decision is to set aside the decision of the respondent and that CKU be issued with a Working with Children Check Clearance.

Orders

The decision of the respondent dated 13 December 2023 to refuse the applicant’s Working With Children Check Clearance is set aside.
The respondent is to grant the applicant a Working With Children Check Clearance.

**********

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

Registrar

Decision last updated: 12 December 2024

Medium Neutral Citation:	CKU v Children’s Guardian [2024] NSWCATAD 376
Hearing dates:	27 June 2024, 28 June 2024
Date of orders:	12 December 2024
Decision date:	12 December 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member (Legal) M Maher General Member (Community)
Decision:	(1) The decision of the respondent dated 13 December 2023 to refuse the applicant’s Working With Children Check Clearance is set aside. (2) The respondent is to grant the applicant a Working With Children Check Clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children – actual risk – testing of evidence – fairness to a party
Legislation Cited:	Administrative Decisions Review Act 1997 Children and Young Persons (Care and Protection) Act 1998 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Civil and Administrative Tribunal Act 2013
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 Children’s Guardian v CKF [2017] NSWSC 893 Children's Guardian v CXZ [2019] NSWSC 1083 CHB v Children’s Guardian [2016] NSWCATAD 214 CKU v Children's Guardian [2017] NSWCATAD 36 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2020] NSWCA 338 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 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. Tilley v Children’s Guardian [2017] NSWCA 174
Texts Cited:	Nil
Category:	Principal judgment
Parties:	CKU (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: L Geddes (Respondent) Solicitors: Self Represented (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2024/00012626
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.