CKU v Children's Guardian

[2017] NSWCATAD 36

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CKU v Children's Guardian [2017] NSWCATAD 36
Hearing dates:	22 and 23 September 2016
Date of orders:	25 January 2017
Decision date:	25 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member E Hayes, General Member
Decision:	(1) The decision of the Children’s Guardian dated 13 January 2016 to refuse to grant the applicant a Working with Children Check Clearance under the Child Protection (Working with Children) Act 2012 is affirmed. (2) Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited.
Catchwords:	ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of Working with Children Check Clearance -what the correct and preferable decision is having regard to the material before the Tribunal – assessment trigger by clause 1(1)(b) of Schedule 1 to the Child Protection (Working with Children) Act 2012 - whether the applicant poses a risk to the safety of children - onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety welfare and well-being of children of children- paramount concern is protecting children from child abuse - the correct and preferable decision is to refuse a Working with Children Check Clearance - decision of the Children’s Guardian affirmed.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BGX v Children's Guardian [2014] NSWCATAD 173 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWCATAD 65 BKV v Children’s Guardian [2015] NSWSC 1602 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 BVT v Office of the Children’s Guardian [2016] NSWSC 1169 BYR v Children’s Guardian [2013] NSWADT 310 BZU v Children’s Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 Children’s Guardian v BRL [2016] NSWSC 1206 Children’s Guardian v BQJ [2016] NSWSC 869 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CKU (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: C McGorey (Applicant) A Douglas-Baker (Respondent)   Solicitors: Younes and Espiner Criminal Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1610078
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. The applicant is known by the pseudonym “CKU” in these proceedings in order to protect the identity of the applicant in accordance with Procedural Direction 9 of the NSW Civil and Administrative Tribunal. The complainant in the criminal proceedings brought against CKU is not to be identified because of the provisions of section 578A of the Crimes Act 1900 (NSW). On 9 February 2016 CKU filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 (“the Act”) concerning a decision of the Children’s Guardian, made on 13 January 2016, to refuse him a Working with Children Check Clearance . The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.

2. This application was made on 16 March 2015. On 13 January 2016 a notification letter was sent by the Children’s Guardian to the applicant informing him that his application was refused.

3. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 do not apply to this particular matter: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22.

4. The applicant wishes and requires to obtain a Working with Children Check Clearance, in order to work including either as a rehabilitation, behavioural therapist and/or occupational therapist. The applicant requires a working children check clearance in order to work in the government and public sector positions which he previously occupied. The applicant states that he has always “loved working with” children and people with physical disabilities or cognitive delays. The applicant considers that he has particular skills in this area arising from his own upbringing and experiences as well as those developed as a result of his training in formal courses of study.

5. In August 2014 the applicant stood trial charged with six counts of aggravated indecent assault (victim under the age of 16 years) and four counts of aggravated sexual assault (victim under the age of 16 years) for incidents which were alleged to have occurred between November 2004 and January 2005 in relation to a child complainant who was at the time 13 or 14 years of age. These alleged offences were laid pursuant to section 61M(1) and 61J(1) of the Crimes Act 1900 (NSW). The jury was discharged on the third day of the first trial due to evidence given by a witness which was incapable of being cured by directions to the jury. The retrial was heard in February 2015 at which time the recorded evidence of the complainant was played to the jury and the trial proceeded. The jury deliberated for a number of days and returned verdicts of not guilty to 9 of the 10 counts. The jury could not decide in relation to a count of aggravated indecent assault which related to the allegation that the complainant’s bottom was stroked by the applicant when he offered to give her a massage for period pain. The DPP ultimately decided not bring further proceedings in relation to the count on which the jury was unable to decide. The remaining matter was dismissed on 13 March 2015. The applicant maintained and still maintains his innocence in relation to all the allegations made by the complainant.

6. The offences with which the applicant was charged are offences specified in clause 1 of schedule 2 of the Act.

7. The applicant is subject to a risk assessment by reason of sections 14 and 15 due to Schedule 1 clause 1(1)(b) of the Act. Clause 1 (1) of Schedule 1 of the Act provides:

(1) Proceedings have been commenced against a person:

(a) for an offence specified in clause 1 of Schedule 2, if the offence was committed as a child (whatever the outcome of the proceedings), or

(b) for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person.

8. On 30 November 2015 the Children’s Guardian advised the applicant that it proposed to refuse his application, a risk assessment would be conducted and invited him to provide additional information in support of his application.

9. The applicant is without a Working with Children Check Clearance now, preventing him from working in “child-related work”: subsection 6(2) and section 8 of the Act; clauses 6, 8, 10 of the Child Protection (Working with Children) Regulation 2013 (NSW).

10. This is an application for a review pursuant to section 27 of the Act. The application for review was heard by the Tribunal on 22 and 23 September 2016. Section 27 of the Act 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.

(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.

11. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA with whom Foster and Brownie AJJA agreed, at [25].

12. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

13. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.

14. There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a Working with Children Check Clearance under section 27 of the Act.

15. In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998. It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside. To impose conditions unauthorised by the cognate legislation, in this case the Act, is therefore an error of law.

16. It is doubtful for reasons later identified in these reasons that the Tribunal may lawfully attach conditions which would be permitted by the legislation effectively for the grant of a conditional clearance for this and the additional reasons set out in this decision. A conditional grant of a clearance for the purpose of allowing the applicant to work with conditions and in his chosen area(s) is not currently permitted by the legislation.

17. An order has previously been made in this matter under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal. The orders to be made as a result of this hearing will reflect that the effect of this order will continue because of the provisions of section 578A of the Crimes Act.

18. The Tribunal has been assisted in this hearing by the parties’ legal representatives and their respective submissions.

The evidence relied upon in the hearing

19. The applicant relied upon the following documentary material:

1. Application for Administrative Review filed 9 February 2016 - Exhibit A1;

2. Affidavit of the applicant filed 8 June 2016 and affirmed 23 May 2016-Exhibit A2;

3. Affidavit of the applicant’s wife affirmed 23 May 2016 and filed 8 June 2016 -Exhibit A3;

4. Bundle of documents comprising four affidavits filed 8 June 2016 in support of the application from friends and colleagues of the applicant -Exhibit A4;

5. Report of Dr Christopher Lennings, psychologist, dated 30 April 2016 and filed 8 June 2016-Exhibit A5;

6. Submissions on behalf of the applicant filed 8 July 2016-Exhibit A6;

7. Supplementary submissions on behalf of the applicant dated 23 September 2016-Exhibit A7.

20. The respondent relied upon the following documentary material:

1. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 21 March 2016, comprising 383 pages - Exhibit R1;

2. Documents filed on behalf of the respondent on 17 June 2016 comprising 431 pages - Exhibit R2;

3. Further documents filed by the respondent on 30 June 2016 comprising 42 pages - Exhibit R3;

4. Outline of submissions by the respondent’s counsel dated 1 July 2016 and filed the same date -Exhibit R4.

21. The applicant, his wife and the psychologist Dr Lennings gave oral evidence and were examined and cross-examined by counsel on 22 and 23 September 2016. No other witnesses were required for oral evidence or cross-examination before the Tribunal.

22. The Tribunal granted a certificate pursuant to section 128 of the Evidence Act 2005 (NSW) in relation to evidence given by the applicant concerning his continuing employment after the imposition of an interim bar on 18 June 2015. The evidence the subject of certificate is contained in the transcript of the hearing on 22 September 2016 at pages 12-17. A separate order will issue from the Registry in respect of that certificate.

23. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil onus of proof which is the balance of probabilities.

24. The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]:

“…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.”

25. This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.

26. Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]:

“Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct.”

27. The Supreme Court has considered the onus of proof in an Administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 (“Bronze Wing”) at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] (which are also extracted):

“[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36].

[72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test.

…

[74]Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party.”

28. The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 (“Karakatsanis“) at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis:

“[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law.

[37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be ‘comfortably satisfied’ of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting ‘a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct’. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])]

[38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).]

‘The notion of ’inexact proof, and indefinite testimony or indirect references [scil. inferences]’ needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.’

[39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present.”(footnotes and references included)

29. The NSW Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil onus to determining a factual matter: CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61]. Another NSW Supreme Court decision in relation to section 27 of the Act, which is restricted as to publication, is the decision in BKV v Children’s Guardian [2015] NSWSC 1602. In BKV v Children’s Guardian [2015] NSWCATAD 65 the Tribunal determined whether the facts which gave rise to criminal charges that were heard by a jury and resulted in an acquittal of the applicant could be established on the civil standard of proof. The Tribunal may determine the issue before it without making findings on the balance of probabilities that the acts amounting to offences of a sexual nature had been committed by the applicant, but the Tribunal is also permitted, if the evidence allows it and irrespective of the ability to make a finding to the relevant standard, to decide whether the applicant “poses a risk to the safety of children”. The fact of an acquittal is a matter favourable to the applicant but does not determine without further examination of the evidence whether there is a relevant risk to the safety of children. The Supreme Court upheld the Tribunal’s analysis of the permitted findings in BKV.

30. The effect of the Act and the ‘practical onus’ of disclosure which falls on an applicant party, notwithstanding the principles referred to in the previous paragraphs of these reasons, is as the Act states in section 27(4):

“An applicant must fully disclose to the Tribunal any matters relevant to the application.”

31. The initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that:

“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.” (Citations omitted)

32. The currently constituted Tribunal concludes that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

33. The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are referred to now and necessarily involve some repetition of previous statements in earlier decisions, so that the legislative basis of this particular decision is transparent and identified for the parties.

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

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

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."

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

“Child and young person abuse

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

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

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

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

is guilty of an offence.

Maximum penalty: 200 penalty units.”

36. The objects of the Act are set out in section 3 which provides:

"Object of Act

The object of this Act is to protect children:

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

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

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

38. "Conviction" as defined in section 5 (1) of the Act “includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.” This means that an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is treated as a conviction for the purposes of the Act.

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

“14 Assessment requirements

A person is subject to an

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

40. The applicant was properly the subject of a risk assessment due to the provisions of clause 1(1)(b) of Schedule 1 of the Act which has been previously extracted in these reasons and it is not necessary to extract the provision again.

41. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.

42. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

43. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.

44. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

45. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

46. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, 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].

47. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523.

48. The Tribunal is also guided by the decision in the Supreme Court BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in the often cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order:

“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.”

49. A more recent decision of the Supreme Court is Justice Harrison’s decision in Office of the Children’s Guardian v CFW [2016] NSWSC 1406 which was delivered after the hearing in this matter, but to which the parties afterwards properly drew the Tribunal’s attention by correspondence. It is pertinent to quote selected parts of His Honour’s judgment relating to the assessment of risk in the course of allowing the appeal. His Honour states:

“[13] The test in s 18(2) of the Act requires a decision maker to consider whether a person “poses a risk to the safety of children”. “Risk” in this context excludes “fanciful or theoretical risk” and instead requires a decision maker to determine “whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child”: Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children’s Guardian [2015] NSWSC 523 at [33].

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

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

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

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

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

…

[20] Although this analysis is arguably formulated in terms of the second proposition identified in M v M, the Tribunal does not expressly address what flowed from its conclusion that the question of the veracity of the allegations made against the defendant “remains open”. The Tribunal was obliged to consider questions of risk that may have been indicated by all of the facts, including the facts and circumstances surrounding the proceedings for the alleged offence that triggered the original assessment requirements, and any doubt or suspicion as to such matters. So much follows from the fact that the Tribunal was equally unable affirmatively to be satisfied that the relevant allegations were not true.

…

[23] In my view the Tribunal has misapplied the test articulated in M v M in the context of s 18(2) of the Act. The inability to exclude the “possibility” of relevant unlawful or inappropriate conduct may, depending upon the particular facts and circumstances, indicate that the requisite degree of risk exists. Having determined that the veracity of the allegations made against the defendant “remain[ed] open”, the Tribunal should then have asked itself how that “open” conclusion, together with all of the other material before it, bore upon the question of risk.

…

[30] There is nothing in the Tribunal’s reasons to indicate that it approached its task in the manner identified in these authorities. Its “open conclusion” suggests that there remained at least some degree of suspicion or doubt as to whether the defendant had engaged in criminal or “inappropriate conduct”. That open conclusion necessarily called for a close analysis of those possibilities and the probative value of the doubts or suspicions that seemingly remained, having regard to the fundamental inquiry about whether the defendant posed a risk to the safety of children. This is particularly so having regard to the Tribunal’s earlier observation at [97] that the Local Court found that the defendant’s actions were “very suspicious”, notably an observation that the Tribunal did not question.

[31] In my opinion, the Tribunal failed properly to have regard to or to assess those matters that it considered to be “open”. In doing so it misapplied the statutory test in s 18(2) of the Act, thereby failing to discharge its statutory functions and duties conferred or imposed by Part 4 of the Act and s 63 of the Administrative Decisions Review Act.”

50. The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children’s Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children’s Guardian at [33]. It is useful to set out the reasoning behind the Tribunal’s determination in this decision.

51. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent, as previously referred to, that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check Clearance under section 27 of the Act.

52. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.

53. The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.

54. In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.

55. The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following:

"All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."

56. In the following paragraph the Minister stated:

"While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."

57. As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.

58. In relation to whether conditions may be imposed when granting a Working with Children Check Clearance under section 27, the Minister's second reading speech most relevantly states:

"Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."

59. If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check Clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.

60. It is the Tribunal’s assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight, are not determinative of the current assessment of risk on the whole of the information before the Tribunal.

The Issue

61. As previously referred to, the primary issue before the Tribunal in this application is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a Working with Children Check Clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

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

63. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].

64. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

Considerations and the Evidence

65. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than is section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language.

66. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections.

67. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.

68. Section 15 of the Act in relation to this matter provides as follows:

15 Assessment of applicants and holders

(1) The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2) The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3) Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder.

(4) In making an assessment, the Children’s Guardian may consider the following:

(a) the seriousness of any matters that caused the assessment in relation to the person,

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

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

(d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim,

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

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

(g) the person’s present age,

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

(i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,

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

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

(5) The Children’s Guardian may, but is not required to, notify the holder of a clearance in writing if the Children’s Guardian decides to conduct a risk assessment of the holder.

69. Section 30 of the Act provides in relation to this application as follows:

30 Determination of applications and other matters

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

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

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

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

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

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

(g) the person’s present age,

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

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

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

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

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

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

70. The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings reciting the required considerations under the Act.

71. Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act. In BVT v Office of the Children’s Guardian [2016] NSWSC 1169, Adamson J found, however, in relation to an application for an enabling order under section 28 of the Act, that it was an error to interpret the plea of guilty in that case to findings of the Court and admissions of the applicant, at [58]:

“[58] The Tribunal was not bound by the laws of evidence: s 38 of the NCAT Act. It was therefore entitled to take into account the contents of the documents produced by the District Court, including: the plaintiff’s record of interview; the witness statements; and the police facts, although the witness statements and police facts would not have been admissible as evidence under the Evidence Act 1995 (NSW). If that is what the Tribunal had done in the present case, there could have been no proper grounds for complaint. However, by elevating the matters in these documents to the status of findings by the sentencing judge and admissions made by the plaintiff, the Tribunal misapprehended the legal effect of the plaintiff’s plea.”

72. In this matter there was no plea of guilty and the applicant maintains that he is innocent of the charges which were heard against him and resulting in his acquittal.

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

73. The purpose of the risk assessment is protective of children and not punitive of the applicant, as earlier stated. The risk assessment identifies factors which are relevant in determining the risk the applicant may pose to children.

74. The applicant is not a “disqualified person” under the Act because schedule 2 does not apply. The applicant has been acquitted of the offences with which he was charged. If the applicant had been convicted then schedule 2 of the Act would apply. The standard of proof in a criminal trial is “beyond reasonable doubt”, whereas in a civil matter and for the purposes of this risk assessment the civil standard “on the balance of probabilities” is the relevant standard as modified by section 140(2) of the Evidence Act: see BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32] and the earlier consideration of this issue in these reasons. The onus of proof in a criminal prosecution lies upon the prosecution. The defendant generally does not have to prove anything. While the evidence must meet the higher standard of proof in a criminal trial, the existence of sufficient reasonable doubt(s) does not necessarily mean that the standard of proof on the balance of probabilities has not been achieved by the same evidence. The evidence may be so unreliable that the same result follows on either standard. However, it is necessary to consider that evidence and weigh it according to the civil standard for a determination about whether the alleged events occurred.

75. If the allegations which led to the criminal charges are considered established on the balance of probabilities, then the alleged offences or matters which required the risk assessment, are most serious. The applicant is alleged to have engaged in sexualised behaviours with a child living in his home over a period of time. The evidence of Dr Lennings was that if it is accepted that the offences took place, then within the offending cluster there is a pattern of moving from what is grooming behaviour to sexual behaviour and within that offence cluster there is escalation, but outside the offence cluster there is no evidence of escalation.

76. The five alleged incidents which resulted in the 10 counts occurred between November 2004 and January 2005. The complainant was aged 13 and 14 years old at the relevant time. The complainant was known to the applicant prior to 2002 in a different country. The complainant alleged that the applicant had paid for her to visit Australia and live with the applicant and his wife in Australia. There was some dispute about this generosity by the applicant. In the transcript of the criminal trial the applicant said that he could not remember whether he paid or the complainant’s family paid for the trip. In the result, nothing seems to turn upon this minor factual dispute. It is more consistent, however, with the other evidence for the applicant to have paid for the trip to Australia.

77. During her stay in Australia the complainant lived with the applicant and his wife in their home. It was alleged that the applicant indecently assaulted the complainant by stroking her belly and breasts, kissing her on the lips and rubbing his crotch against her saying words to the effect: “How much better would this feel inside you?” When confronted by the complainant and told to stop what he was doing, the applicant told her he thought her body was saying she liked what he was doing. The complainant also alleged that the applicant grabbed her hand and placed it on his erect penis making her rub it.

78. The complainant also alleged that approximately one week before she left Australia to return to her home in a different country she went to the applicant’s room for morning yoga when he sexually assaulted her. The applicant is alleged to have lay on top of her while rubbing his crotch on her crotch while saying words to the effect: “This would feel so much better if it was in you. I’ll teach you the right way.” The applicant is alleged to have pinned her to the floor rubbing his exposed erect penis on her bottom and saying: “Let me put it in you. You will feel so much better.” The applicant is also alleged to have placed his fingers in the complainant’s vagina while she was on the floor, placing lubricant on her vagina and penetrating her vagina with his penis while she struggled to move away and cried and screamed in pain. The applicant was also alleged to have penetrated the complainant’s vagina with his penis on a second occasion causing tears and bleeding to her vagina. The complainant said there was considerable pain and injury. The applicant was also alleged to have shown the complainant the “correct technique” for oral sex and he instructed her on the method to perform oral sex on him when he put his penis in her mouth. The complainant said that the applicant told her she should keep the incidents between them a secret.

73. The jury deliberated for five days and delivered verdicts of not guilty in relation to the allegations referred to in the immediately preceding paragraphs.

74. The complainant also alleged that on another occasion she was in the lounge room and complained of bad menstrual period pain. It is alleged that the applicant rubbed her while sitting on top of her legs and stroking her bottom. It was also alleged that the applicant’s wife returned home during this incident and had a shocked expression on her face. The applicant’s wife denies ever seeing such an incident. As previously referred to in the earlier part of these reasons the jury did not reach a verdict in relation to the allegation. The other alleged conduct could not be led in evidence in a further trial and the Crown formed the view that there were no reasonable prospects of conviction in a further trial on this charge, which was also considered by the DPP to be the least serious one.

75. The evidence given by the complainant is not inherently improbable. The complainant was extensively cross-examined in the criminal trial and was not required for cross-examination in the Tribunal.

76. The applicant gave evidence in the Tribunal and also in the criminal trial.

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

83. The time which has elapsed since the alleged matters is over 10 years.

84. The complainant has since returned to Australia to live permanently. The complainant did not raise the allegations of abuse until she had left the country in which she previously lived because she was concerned that she would be automatically blamed for somehow inciting the behaviour of the applicant, because she is female. This is not an unreasonable explanation for raising the allegations when she did.

The age of the person at the time the offences or matters occurred

85. The applicant was 30 years old the time of the alleged offences.

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

86. The victim was aged 13 and 14 years of age at the time the alleged offences.

87. The complainant victim was a vulnerable teenage girl who looked up to the applicant as a mentor and teacher. This was a purpose of her visit to Australia and her stay with the applicant. There was a significant age difference. There was also a relationship where superior power was exerted by the applicant in relation to the complainant and other children who came to stay with the applicant and his wife. The applicant was considered an authority in particular aspects of knowledge and learning and held in some esteem within the communities in which he is known. The complainant was dependent upon the applicant and his wife.

88. The evidence of the complainant is that the behaviour commenced with indecent assaults accompanied by some psychological pressure. The complainant asserted that the acts of penetrative sexual assault were in the context of a daily ritual of yoga and study. In the criminal trial the transcript records in both the applicant and his wife’s evidence, that in the mornings the applicant and the complainant would undertake yoga exercises including mental exercises in which he would guide her through controlling the mind and breathing. It was the complainant’s evidence that the acts were accompanied with pressure from the applicant to keep their “secret” and that she was reliant upon the applicant for lodging, food and study. The nature of the alleged behaviour showed an escalation from grooming behaviour to penetrative sexual acts.

89. The complainant has emailed the applicant to inform him that she was terrified that people would find out about their secret. The complainant has written to the applicant: “I know you thought you were teaching me something and doing me a favour but it has really screwed my life up!”

90. The complainant also said in her evidence:

“On one level the trust was gone, but on another level he was telling me my parents were useless. He was the only person that I had at that time in my life, even though he had done all those things to me, he was someone that you’d go to talk to and get advice. I felt on a certain level this, like, admiration for a teacher, the advice that he would give me. There was still-he was a teacher who I would get support from.”

91. After the complainant had returned to her home country, spoken to her friends, she still wanted to have contact with the applicant. She said in her evidence:

“I wanted to learn more yoga. I wanted to actually learn. On one level I thought if I could just ignore everything that had happened, just make a student-teacher relationship, had it clear cut, have that relationship with him, learn things from him, that’s what I wanted.”

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

92. The difference in age between the applicant and the complainant was 16 to 17 years.

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

93. The applicant knew that the complainant was a child.

The person’s present age

94. The applicant is currently aged 41.

95. The applicant has lived in Australia on a permanent basis since 2002. The applicant has worked extensively with children in a number of capacities, in sport or coaching, since 2008 until the criminal proceedings and the imposition of the bar. The only known allegations of wrongdoing ever levelled against him have been made by the complainant. There is no other evidence before the Tribunal of any other child or any other person ever raising concerns about CKU regarding children or otherwise. The Tribunal has the benefit of a number of persons who have given sworn evidence about their knowledge of CKU, of his dealings with children and who were prepared, if required, to be subjected to cross-examination before the Tribunal. There is no other evidence of a pattern of deviancy by CKU outside of those matters the complainant has alleged. As Dr Lennings observed outside the offence cluster if the events occurred there is no evidence of escalation.

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

96. The applicant has no criminal record.

97. The Children’s Guardian submits that there is further relevant conduct evidencing inappropriate interactions between the applicant and the complainant.

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

98. The respondent submits that the applicant is a risk to the safety of vulnerable young persons, including children. This is based upon the alleged events.

99. The Tribunal has to form its own opinion about the likelihood or risk of recurrence of the conduct of the applicant independent of any expert opinion. An indicator of future behaviour, both good and bad, is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves.

100. The complainant gave a comprehensive account in her evidence at the trial which was supported by consistent disclosures made by her to other witnesses. The complainant was comprehensively cross-examined about the delay in the complaint about the behaviour of the applicant. The complainant was cross-examined about her late evolving understanding that she had in fact been raped. The complainant was cross-examined about her motivation in seeking to exact revenge on the applicant for failing to sponsor her later move to Australia. It was submitted by the Children’s Guardian that the complainant did not waver in her account in any significant matter and explained the complex nature of the relationship of trust and betrayal with the applicant, making appropriate concessions during her evidence. The evidence the complainant gave was not inherently unlikely. A reading of her evidence is consistent with those submissions.

101. The applicant relies upon his own evidence, the evidence of his wife, some character evidence and the evidence of the psychologist. Apart from the one incident which the applicant’s wife says did not occur, none of those people except the applicant were present at the time of the alleged incidents. The applicant denigrated the complainant and her family in his later communications after the incidents and after his wedding ceremony in the complainant’s prior country of residence, it seems in order to minimise the allegations as spiteful and false.

102. During the trial the applicant gave evidence and denied the offending. The applicant did not give convincing reasons for cutting the visit of the complainant short, nor did he adequately explain why he did not inform his wife at the time of those reasons. The applicant was apparently concerned that the complainant had feelings for him including that she was “infatuated” with him. In the hearing before the Tribunal the applicant was asked further questions about this and his evidence was as follows:

Q. At the criminal trial you also gave evidence about something that [the complainant] said to you in the weeks before she left Australia in 2005, you said that [the complainant] had said to you one day, “If [the applicant’s wife] would die, who would you marry?” Do you remember giving that evidence?

A. I do, I remember.

Q. You also gave evidence that you thought from what she said that, as in you thought from what [the complainant] said, that [the complainant] like (sic) you?

A. Yes.

Q. And you said in your evidence that you didn’t feel clean when [the complainant] said that to you?

A. I knew she liked me, but she liked me be(?) friendly.

Q. What do you mean by that?

A. She was looking at me differently.

Q. Can you explain what you mean when you say, but “she was looking at me differently”? What do you have in mind when you say that?

A. I felt like she was not - not just - not normal [the complainant], in a normal relationship we had. It felt that she was infatuated.

Q. You also described in your evidence that she looked at you in the eye and she looked creepy, do you remember giving that evidence?

A. Yes.

Q. Was it unusual for her to look you in the eye?

A. That way, yes.

Q. [The complainant] was asked about this conversation at the trial, wasn’t she, and she denied ever saying to you. If your wife would die, who would you marry?

A. I don’t remember her answer.

Q. You also said in your evidence at the criminal trial that after she said that to you, you just wanted to get her out of the house, do you recall giving that evidence?

A. I remember saying that, yeah.

Q. What was going through your mind at the time to make you think you wanted to get her out of the house?

A. At that time she - her ticket was open for three months, but I knew what she wanted to learn we could have finished before because she is very smart. So she was already finished, so she started to really go over to her sister and her dad’s place a lot, and I just felt that she was associating over there and she - that she got influenced there.

Q. What do you mean she got influenced, you thought she got influenced there?

A. By her sister or her father.

Q. And for those reasons you wanted to get her out of the house?

A. Because, yeah, wasn’t her character. She doesn’t behave like how she did then.

103. The reasons for not informing his wife at the time were not convincing. The applicant told both the complainant and his wife that the reason for moving the complainant’s flight forward so she could go home was so that he could have more time to study for university. In his evidence to the Tribunal the applicant said:

Q. Did you tell your wife about what [the complainant] had said?

A. I didn’t.

Q. Why didn’t you tell your wife?

A. I thought up to that point [the complainant] was a real tomboy and that was a one‑off thing after we had a little talk about it she never did it again, so I was like we just keep it that way, we don’t need to make it - I didn’t want to have anything funny, any arguments or anything going on in the house. [my wife] feels bad or [the complainant] feels bad, so I just thought it’s best. She’s not - she wasn’t continually doing it, so I thought it’s settled, so we just don’t need to do.

104. An email was sent by the applicant to the complainant in 2007 which referred to a friend of the applicant who recorded some music. The applicant wrote that he “thought (sic)[ scil. taught] her yoga and other stuff…hint hint”: Exhibit R1 page 253. The applicant agreed that the email is referring to a friend of his and the assumption that the complainant had made that there was a relationship between him and this friend referred to as X in these reasons. The respondent submitted that the email lends some support to there being some sexual familiarity or interpersonal familiarity at the very least between the applicant and complainant. The Tribunal accepts this submission based on the applicant’s answers in his evidence. The evidence the applicant gave to the Tribunal about this is now set out:

Q. The subject is X, and the email was sent on 9 September 2007?

A. Yes.

Q. The email reads, “Hey Piglet, remember X, she has her new album out, I attach some of the album pictures. This is her website”, and then you go on to say something more, but just pausing there, who was X?

A. X is - she was my friend, the Greek heritage lady.

Q. And how old was X in 2007, do you know - she said she was older than you?

A. Yeah, whatever my age plus one.

Q. You go on to say, “This is her website. When you open it the song that plays before you enter the site is the one she made for me, because I taught her” or “I thought her yoga and other stuff...hint hint”, what did you mean by “taught her yoga and other stuff hint hint”?

A. Firstly when I explained that, this email - I remember sending this email - is the children - I was on a magazine cover, a fitness magazine cover, doing like a difficult yoga posture, and she was writing about that, and so when she replied I told her about X making the song. And this was teasing, you know, because [the complainant] was convinced that me and X had some type of relationship, so I was just teasing her.

Q. And when you say you were just teasing her what was the teasing part of the email?

A. She was saying that me and X had a relationship, so I was like hint, hint, towards that, because in the email before the picture that all the boys they had with the magazine and the article. And then after that they had something in there at X, and then she’s like, “Oh, how X is doing?” I said, “You remember X?” And then I told her how X make that song for me, and I was just teasing her because she was convinced we had something but me and X didn’t have anything.

Q. Sir, you said the magazine cover was a picture of you doing a yoga pose?

A. Yeah, it was.

Q. You said that there was this discussion between you and [the complainant] about her thinking that you had a relationship with X?

A. When she was here, and because when X took her out on outings X was really appreciative because when I met X she didn’t have periods for six years and she had a lot of pain, and doing the yoga helped her out a lot. And so X was really appreciative so X just spoke me up. And then she came back and she’s like, “She’s in love with you”, and I was like, “She’s just a friend, she’s just appreciative”, so.

Q. But you’d had this discussion with [the complainant] about [the complainant]’s thinking that you had some romantic relationship with X?

A. When she came back from the visit that was her premise and we shut it down then.

Q. Correct, and two years later - two and a half years later in September 2007 you were writing to [the complainant] saying, “I taught her yoga and other stuff, hint hint”, and you say that the “hint hint” was the reference back to the romantic - [the complainant] thinking that there was a romantic relationship”?

A. And she didn’t send you guys the other emails how she replied as well, I remember this chain, but most of the evidence it seems that it’s just the emails she wants to send, not the before and after, so it have been nice to see the after.

Q. In September 2007 [the complainant] would have been about 16 years of age?

A. She would be 17 because her birthday, I think, is January 1st.

Q. Do you think it was appropriate to send an email with this expression, “I taught her yoga and other stuff, hint hint” to a 17 year old girl?

A. If you look at this email that they’ve selectively brought out, yeah, why would you just initiate an email like that, but if you don’t take it in the context with all the other emails, and the emails after, you could look at this, and you could translate it whichever way you want. So it would be nice if they provide evidence to provide the chain, not just one selective thing with her commentary on it.

Q. But even so you’ve given evidence that you were referring to that discussion about a romantic relationship?

A. I was referring to her assumption of a romantic relationship.

Q. But even so do you say that it was not inappropriate for you to send an email like that to [the complainant] when she was 17 years of age?

A. In the context from my - remember the chain of the emails in the context I don’t see it was inappropriate.

Q. How old were you in September 2007?

A. I’d have to calculate, I’m 41 now so - 10 years, so 31 or 30.

105. Dr Lennings provided a report and gave oral evidence. The impression the Tribunal gained of the applicant is not inconsistent with Dr Lennings’ comments about the applicant’s responses to psychometric assessment. The applicant was described as:

“…a person of some inflated self-esteem and is rather uncritical in his self appraisal, thus his responses appeared defensive or lacking in insight. However, the degree to which this occurred is not sufficient to compromise the test… [The applicant] does not present with any significant psychopathology, other than a highly valued self-concept and the likelihood that he engages in driven and highly motivated behaviour. He is quite positive about himself and the future, and lacking in self-criticism. This can likely make him seem somewhat overbearing. He can be quite controlling in his relationships with others, and somewhat domineering, however he can also express some warmth in his character. He did not endorse any impulse control problems, or difficulty in handling aggression.”

106. The Tribunal is aware of the caution which should be attached to risk assessments by psychiatrists and psychologists and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 at [67] and BKV v Children’s Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children’s Guardian [2016] NSWCATAD 3 at [91]-[92]. Dr Lennings repeats and endorses this caveat at [33] of his report.

107. In essence, expert witnesses in this Tribunal have stated that prediction of a relatively uncommon behaviour such as violent or sexual offence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and “gut feeling” play a determinative role in making a judgment.

106. The complication for any actuarial risk assessment is that there is no adjudicated finding of guilt in relation to the applicant’s behaviour. If it is assumed that the offence took place, but was limited in time and isolated to one victim, in the absence of general sexual deviance, antisocial behaviour or relationship instability the applicant would remain in the low risk group according to Dr Lennings.

107. Dr Lennings assesses that the risk of recidivism is low and typically there would be no need for supervision or treatment of the applicant’s behaviour.

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

110. The applicant has provided extensive information including a formal psychological assessment.

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

Any other matters that the Children’s Guardian considers necessary

112. The Children’s Guardian made submissions addressing those matters which the Children’s Guardian considers necessary.

113. The Children’s Guardian submits that the applicant should not be granted a Working with Children Check Clearance and the application for review should be dismissed.

114. The respondent submits that a real and appreciable risk to the safety of children is present.

Consideration

115. If these allegations are considered true then the alleged offences or matters, are most serious. The alleged behaviour and conduct which triggered this assessment is serious. The applicant was acquitted of criminal behaviour and is therefore not a disqualified person.

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.

117. The Act is designed to be protective and the Minister’s second reading speech identifies that there are a number of matters which may be relevant to an assessment of risk. The behaviour of the applicant was beyond reasonable community norms, and was part of a pattern of ongoing or escalating events. The legislature has proscribed certain specific behaviour which results in criminal charges and classified it as sufficient to render the applicant for a clearance subject to a risk assessment. That behaviour does not have to involve allegations about child victims but in this circumstance clearly relates to a child victim. It is clear that offences listed in Schedule 1 of the Act involve a sexual element or some aspect of violation of the personal integrity of another person or serious harm to a living creature. The assessment trigger is activated where a person has been ‘convicted’ of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct sufficient to indicate a pattern of behaviour which is deemed a possible risk to the safety of children. The seriousness of the conduct is a particularly relevant factor to the risk assessment but is not the only consideration.

118. The behaviour is not recent, and the behaviour, if repeated, would do significant harm to any child in a similar position. There is an absence of mitigating factors, but genuine and sustained effort to remedy the conduct and past behaviour is also not present. Remorse on its own is not considered to be a factor that mitigates risk but would appear to be absent given the denials that anything untoward occurred.

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. This is a well-recognised aspect of risk assessment particularly in relation to the risk to vulnerable children. While this application is far removed from unexplained injuries to children, the principles which are relevant in assessing the likelihood of repetition of abusive behaviour are instructive: see T v H, Unreported, Supreme Court NSW, Hodgson J, 19 December 1985, page 18; SL v Secretary, Department of Family and Community Services [2016] NSWCA 124. A conscious understanding of the causes and the ability to address the risk of further abusive and dominating behaviours. A balancing of risk is unable to be properly undertaken if the behaviour is not acknowledged as having taken place. The reasons for the behaviour and any development or growth which has occurred since the behaviour would also be useful elements in the assessment of risk.

120. The behaviour, if repeated, while working with children would be more likely than not to do significant harm to children.

121. The applicant has not acknowledged and shown insight into the effects of his conduct. The applicant denigrated the complainant and her family in his communication after the incidents. The impact of the behaviours on the complainant are significant.

122. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

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.

Conclusion

124. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.

125. Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]; Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

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

127. The evidence received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does currently pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

128. It is concluded on the balance of probabilities that having regard to the circumstances surrounding the conduct by the applicant and the steps or rather lack of steps he has taken since those past events, that the existence of a real and appreciable risk to children has not been disproven: see BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33].

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

Order

130. The order of the Tribunal is that:

1. The decision of the Children’s Guardian dated 13 January 2016 to refuse to grant the applicant a Working with Children Check Clearance under the Child Protection (Working with Children) Act 2012 is affirmed.

2. Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited.

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: 25 January 2017