CQX v Children's Guardian

[2017] NSWCATAD 286

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CQX v Children’s Guardian [2017] NSWCATAD 286
Hearing dates:	10 March 2017, 12 May 2017(submissions closed 30/6/2017)
Date of orders:	25 September 2017
Decision date:	25 September 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member B Field General Member
Decision:	(1) The decision of the respondent dated 27 June 2016 to refuse to grant the applicant a Working With Children Check clearance is set aside.  (2) In substitution for that decision, the following decision is made: The applicant is granted a Working With Children Check clearance
Catchwords:	CHILD Protection – Working with children – Findings in respect of criminal allegations – Evidence – Weight of evidence in absence of testing of evidence – Fairness to party – No presumption of risk s27 – Whether inconsistencies in evidence constitutes breach of section 27 duty – Whether circumstances of conflicting evidence equate to risk to children – whether risk real and appreciable – Expert evidence- Character of applicant – Whether character necessarily in issue
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998(Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Criminal Records Act 1991
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 CGP v Children’s Guardian [2017] NSWCATAD 12 BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v CKF [2017] NSWSC 893 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 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 M v M (1988) 166 CLR (HCA) Makita Australia v Sprowles [2001] NSWCA 305 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Tilley v Children’s Guardian [2017] NSWCA 174
Texts Cited:	Butterworth’s Concise Australian Legal Dictionary (second edition) 1998 LexisNexis Concise Australian legal Dictionary 4th Edition 2011
Category:	Principal judgment
Parties:	CQX (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: C Doosey (Applicant) V Hartstein (Respondent)   Solicitors: N/A (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00378216, 1610452
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

1. On 25 July 2016 the applicant applied for administrative review in the Tribunal of a decision of the respondent to refuse a Working With Children Check clearance. That decision was made on 27 June 2016.

2. The Applicant in these proceedings is referred to as "CQX". CQX is the applicant's pseudonym used in these proceedings in conformity with the order referred to in paragraph 4 (below).

3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of section 30 (1) of the Child Protection (Working with Children) Act 2012, the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons. In addition the Tribunal finds that a reasonable person would allow their child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child related work, and that it is the public interest to make the order granting the Clearance.

4. On 25 August 2016 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

5. The jurisdiction of the Tribunal under Part 4 of the Child Protection (Working with Children) Act 2012 ('the Act') is protective and not punitive in nature, as set out by the Court when considering section 28 of that Act: 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 sections 3 and 4 of the Act.

3 Object of Act

The object of this Act is to protect children:

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

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

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

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

6. These proceedings arise because on 27 June 2016, the Children's Guardian made a decision to refuse to grant CQX a Working With Children Check clearance. On 25 July 2016 the applicant applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act. There is no dispute between the parties that the application was lodged within the period required for administrative review by the Tribunal.

Background

7. On 8 February 2016 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a clearance for his part time paid and volunteer work/service, however it was submitted that any real need might only arise in the future. The applicant has worked part time in the area of educational tutoring of child students in the subject area of mathematics. The applicant commenced tutoring children whilst he was still a school student and continued informal and employed tutoring whilst a University student. His current part time employer more recently advised the applicant that he would eventually need to apply for (and ultimately obtain) a Working With Children Check Clearance to continue with this work long term.

8. From early February 2016 to late June 2016 the respondent considered the applicant's application. During this time the respondent conducted a risk assessment pursuant to section 15 (1) of the Act. The applicant was advised of this assessment. The matter that caused a risk assessment concerned the breaching of the applicant for indecent assault offences arising from alleged criminal activity on the school bus run with younger students. The matters were withdrawn and dismissed prior to any committal before the Children’s Court.

9. On or about 10 March 2016 a ‘Notice of Proposed Refusal of Application’ was provided to the applicant. After considering all of the material previously provided and reviewing the matter, on 27 June 2016 the respondent finalised the Working With Children Check and the applicant was refused a clearance.

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

11. The applicant lodged the application for administrative review before the Tribunal beyond the period provided for in section 27 (1) of the Act. The section provides:

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

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

12. The grounds of the substantive application are:

1. The decision to deny a working with children clearance was incorrect in all the circumstances including:

1. Inadequate consideration was given to the specific circumstances of this application.

2. The fact of the mere making of the allegation was treated as decisive of the issue as to whether a Clearance was appropriate.

3. There was no attempt by the guardian to make any independent, objective assessment of the allegations, rather the guardian simply adopted FACS decision that the allegations were “substantiated” as evidence of their occurrence. This was erroneous.

4. Little or no weight was given to the ODPP assessment of all of the evidence available in relation to the allegation, resulting in their determination that there were no reasonable prospects of a conviction. Such a decision, in light of the serious nature of the allegations and the duties and powers of that office, is indicative of a significant, overwhelming flaw in the evidence of the complaint. The fact that the ODPP withdrew the allegations is materially relevant to an assessment of their reliability. The Guardian failed to take that decision into account and relied instead on the less informed, less relevant FACS determination. In doing so the Guardian mislead themselves.

5. The good character of the Applicant was given little or no weight. In particular the absence of any past or further adverse reports or allegations was given little or no weight.

6. The time that has lapsed since the making of the allegations was given little or no weight.

7. The fact that the Applicant was himself a child at the time of making the allegations was given little or no weight.

8. The adverse consequences of the refusal to grant a clearance were given little or no weight.

9. The treatment of the Applicant’s denial of the allegations, borne out as they were by withdrawal of the allegations, as reflecting negatively on him was a perverse and inappropriate response to his denials.

10. Inadequate consideration was given to the issue of the likelihood of any repetition by the applicant of the offences or conduct. In a context where the allegations are denied and inherently implausible there is no basis for finding that similar conduct is likely to occur.

11. Further, even within the parameters of the FACS determination that the Guardian adopted and acted on, the circumstances of the allegations renders them extremely unlikely to ever recur. That is, the allegations arose in a very particular, unique situation, ie a school bus where a game of truth or dare played by children had descended, over a prolonged period of time, into an extensive ongoing consensual sexual experimentation by them completely independently of the Applicant. The likelihood of the repetition of those circumstances and accordingly of the conduct alleged is remote in the extreme.

12. The determination that the Applicant was likely to have engaged in the alleged conduct was made on an unsound and unsatisfactory basis and grounded by improbable allegations. The determination was made in the face of the preponderance of evidence supporting the proposition that it was very unlikely that the Applicant had engaged in the alleged conduct.

13. The determination that the Applicant poses a risk to the safety of children was made on an unsound and unsatisfactory basis and grounded by improbable allegations.

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

The working with children legislative scheme

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

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

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

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

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

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

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

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

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

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

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

(2) ...

(3) ...

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

(5), (6) (Repealed)

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

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

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person's present age,

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

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

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

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

Burden of Proof

24. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

25. 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].

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

27. In addition, in this case there is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to section 28 of the Act.

28. In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk.

29. As stated above, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 27 above). Section 15 (4) sets out the criteria which the Children's Guardian may consider. The Tribunal, in its administrative review, considers similar criteria in that section 15 (4) and section 30 (1) are drafted in similar but not identical terms. An important distinction is the word "may" in 15 (4) and "must" in 30 (1).

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

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

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

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

The Issue to be decided

33. The primary issue before the Tribunal in this application as outlined at paragraph 17 above, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a clearance in relation to the applicant: (section 63 Administrative Decisions Review Act 1997). In noting this issue, the Tribunal notes that much of the two days of hearing concentrated on the character and credibility of the applicant in respect of his evidence and in particular various inconsistencies or contradictions in his answers during cross-examination.

33. The tenor of the hearing appeared (to our observation) more akin to ascertaining whether the applicant was a fit and proper person (going to his character) rather than whether he was (or was not) a risk to the safety and well-being of children, however clearly the later was at all times before the Tribunal, and regularly referred to or inferred by the respondent. In making this observation we are conscious of the approach taken by the respondent during the proceedings, to put the central allegations to the applicant and to test that evidence. However we also note that during the processes engaged both during the risk assessment, and additional processes under section 31 of the Act following the application for administrative review, the respondent obtained records covering in excess of half of the applicant’s short life. This material went to significant material from the applicant’s first 7 years of schooling as a young child, and in this regard we approach that material (and any questions and answers arising from it), with some caution.

34. We also note that the adolescent school records (also submitted by he respondent as being adverse to the applicant’s application) concern a period of child development whereby the subject was still a child albeit one who may possess the age requirement for a consideration of criminal responsibility.

The Hearing

36. The matter was heard on 10 March 2017 and adjourned part heard to 12 May 2017 in order to complete the evidence and oral submissions. At the conclusion of the second day of hearing a timetable was set (at the parties’ request) that written submissions be filed. The filing of submissions closed on 30 June 2017 at which time the Tribunal reserved it’s decision. Both the applicant and respondent were represented by Counsel, and instructing Solicitors appeared for the respondent.

37. At the commencement of the hearing the Tribunal was advised that four witnesses for the applicant would be giving evidence in person at the hearing. Those witnesses were the applicant, both his parents and his expert witness Clinical and Forensic Psychologist Dr K Seidler. The respondent did not call any witnesses however they cross-examined the applicant, his lay witnesses and his expert.

38. The applicant gave evidence first but was later recalled after the expert’s evidence. The applicant was also recalled on the second day of hearing as was the expert. The parents of the applicant gave evidence on the second day of hearing after the applicant’s evidence and that of his expert had concluded.

Written Evidence

Applicant’s written material

39. The applicant filed a number of affidavits in support of his application.

• Exhibit ‘A 1’ the application for administrative review dated 20 July 2016 received 26 July 2016 (see paragraph 12 – above).

• Exhibit ‘A 2’ an affidavit of sworn 28 October 2016.

• Exhibit ‘A 3’ a further affidavit of the applicant sworn 3 March 2017. ‘

• Exhibit ‘A 4’ an affidavit of ‘M.X.’ who is the father of the applicant, sworn 28 October 2016.

• Exhibit ‘A 5’ an affidavit of ‘O.X.’ who is the mother of the applicant sworn 28 October 2016.

• Exhibit ‘A 6’ is the expert report of Dr K Seidler dated 18 November 2016.

• Exhibit ‘A 7’ is an e-mail / report from Dr Seidler in response to further material being considered supplementary to her 18 November 2016 report.

• Exhibit ‘A 8’ is a further affidavit of the applicant affirmed 5 May 2017.

• Exhibit ‘A 9’ further report of 18 April 2017 Dr Seidler.

Respondent’s written material

40. The respondent filed substantial material under both section 58 of the ADR Act and material obtained since the commencement of these proceedings. Whilst the respondent did not call any witnesses, substantial cross-examination of the applicant and examination of the applicant’s expert occurred at hearing.

• Exhibit ‘R 1’ comprising 274 folios of material filed under section 58 of the ADR Act.

• Exhibit ‘R 2’ comprising 197 further folios of material obtained under section 31 of the Act, filed 9 November 2016.

• Exhibit ‘R 3’ comprising amended section 31 further documents filed 12 December 2016.

• Exhibit ‘R 4’ comprising further documents obtained under section 31 filed 23 January 2017.

• Exhibit ‘R 5’ comprising a section 31 response from the applicant’s final High School, filed 12 May 2017.

Submissions

41. Both parties filed detailed written submissions prior to the hearing, and further submissions after the hearing in addition to oral submissions made at the conclusion of the evidence at the hearing. The Tribunal understands that the parties obtained access to the transcript of the proceedings in order to complete submissions after hearing.

Applicant’s Evidence at Hearing

42. In evidence-in-chief on the first day of hearing the applicant adopted his two affidavits (Exhibits ‘A 2’ and ‘A 3’) as true and correct.

43. In cross-examination the applicant was asked whether he told the truth to the expert when attending for assessment. The applicant was taken to paragraph 7 of ‘A 2’ and asked what he meant by the words ‘occasionally involved’, in reference to the truth or dare game that was the context of the allegations. about his contact with the children on the school bus, the subject of the serious allegations. It was put to the applicant that the younger children ‘looked up to him’. The applicant denied this.

44. The applicant was asked about matters relating to the school bus journey, and whether the younger children got off the bus at various stages in the journey prior to the applicant. The applicant was asked how many other persons were still on the bus by the time he was approaching his bus stop. The applicant advised that there was himself, the driver, a 13 year old boy (‘J’), and some other kids from [a particular locality]. The applicant’s evidence was that most of the children had already alighted during the journey. The applicant agreed that other than himself and ‘J’ all of the other remaining children were primary school age children.

45. Questions were asked about the ‘truth or dare’ game played on the bus, including one of the dares being to ‘lick the floor’. The applicant was asked whether he viewed ‘kissing’ as sexualised conduct. The applicant stated that in his affidavit he was referring to ‘stuff relating to sex’. Genitalia, breasts etc. He was asked why he did not intervene to stop one of the children ‘C’ kissing a girl during the game. The applicant advised that he did not see it at that time as a sexualised thing, a ‘peck on the cheek’.

46. The applicant was asked about paragraph 14 of his affidavit where he refers to being ‘uncomfortable’ with the kiss (even though it was not sexualised). The applicant answered that it was weird, as they were kissing on the cheek and the lips. The applicant’s evidence was that he tried to distance himself from the younger kids and sit elsewhere on the bus. When asked about ‘S’s kissing the applicant answered that he could only say for certain or 100% sure that he saw the kissing once, but he might have seen it on another occasion, but not to the best of his knowledge. In the applicant’s opinion kissing on the lips is not in itself sexualised conduct and that is the basis for what he told the expert concerning sexualised conduct.

47. The applicant gave evidence that there was one incident where ‘S’ exposed his penis on the bus.

48. The applicant was taken to some photographs that he had viewed on his laptop computer whilst on the bus. (print-outs of the photos were before the Tribunal). It was agreed that the photographs were of naked or semi-naked women. The applicant’s evidence was that he searched for these images on google and that he stored the search results on his computer. The applicant said that if the folder was open then he would have viewed them, so yes he would have viewed them more than once.

49. It was suggested to the applicant that he found the images sexually stimulating and that this was whilst he was on the bus with the children playing a game of ‘truth or dare’. There was some discussion about two versions of the ‘truth or dare’ game. A ‘sexualised one’ and a ‘non sexualised’ version. Most of the kids played the later one at some time. The applicant admitted that there were inconsistencies in what he said with his evidence in a record of interview/meeting at the school, and his evidence at hearing. The applicant stated that it could not be certain of what he said on the earlier occasion. In his evidence and via his Counsel’s objections it became clear to the Tribunal that the applicant did not necessarily agree with all aspects of the record produced at folio 88 of the Section 58 documents (the school running record).

50. Discussion during the cross-examination of the applicant ensued about a movie with a sex scene which it transpired was Pirates of the Caribbean 3 which whilst it had a ‘sex scene’ the scene did not show anything graphic and jumped immediately to the following ‘post coital’ scene. The applicant denied showing this scene to any younger children and stated that he was just watching it on the bus.

51. Examination returned to the school, interview record. The applicant was asked whether he was telling the school the truth about the matter. The applicant stated that at times he panicked and ‘slipped up’ and was ‘freaked’ because this was all in the Principal’s Office. The applicant stated that the school can get you into trouble and you might slip up on a word here or there.

52. The applicant was taken to the contemporaneous record at pages 88 and 89 of ‘R-1’ where student ‘M’ comes and sits near the applicant on the bus. It was also suggested that the applicant had seen ‘S’ touching other students and that by denying it the applicant had changed his story. However later in the record it indicates that he heard about ‘S’s behaviour after being told about it by ‘J’. It was suggested that the applicant had changed his story because he would have been implicated in the behaviour. The applicant denied this.

53. Questions were asked about ‘S’ exposing himself, and the applicant recalled that ‘S’ seemed ‘quite horny’ or somewhat over sexualised. A dispute arose concerning the evidence about ‘S’s exposure and whether the applicant had seen it once or had said that ‘S’ normally [exposes himself] or it occurred on [many] occasions. The applicant stated that it had occurred on more than one occasion but there was only one instance where he had personally observed the behaviour.

54. It was suggested that ‘M’s behaviour also constituted ‘sexualised conduct’. The applicant stated that he was not sure that was true. It was put to the applicant that he might have lied then and to NCAT and the expert. Matters concerning the ‘sexualised behaviour’ of ‘M’ were put to the applicant. The contemporaneous school interview/record indicated that ‘M’ had tried to initiate certain behaviours and the applicant had tried to deflect them. It was suggested that the applicant was either lying to the school or lying to the Tribunal and the expert about ‘M’ as per the paragraph immediately above. The applicant stated that the attempts to touch him did not always occur in the ‘truth or dare’ game context. It was suggested that the applicant’s affidavit stated that had there been any indication of sexualised conduct then the applicant would have reported it. Counsel for the respondent suggested that the applicant didn’t report ‘M’s behaviour. The applicant responded that such a report was somehow impractical because of the context or particular environment that existed. The applicant gave a version that in his view going to the school and saying that a younger female student on the school bus had tried to touch him inappropriately…. walking down the aisle and just happening to trip and fall on him, would have resulted in a cynical and fanciful response from the school. The applicant suggested that this would be a somewhat incredulous situation to suggest and properly explain at the time, even if factual.

55. In a further response to the suggestion that the applicant was lying about what he said at the time or now, the applicant stated that his ‘moral compass’ has increased exponentially since the time he was in year 10 and having since gone to University.

56. The applicant was asked whether he remembered some of his earlier answers to the school about the incident. The applicant did not remember, and had no idea that the school meeting/interview was in any way to be recorded or have some record made.

57. It was suggested to the applicant that he was trying to tell the truth then, to which he agreed, but that he ‘panicked’. After a brief adjournment the applicant indicated that his memory of the day of the school meeting/interview had returned somewhat and his recollection was that he was not advised exactly what was taking place. The applicant’s evidence was that on reflection he can’t be sure if anything that he said at that time was true.

58. The applicant’s memory was not clearer now than it was at the time of the incident, merely (in his view) at the earlier meeting/interview he panicked and did not have the benefit of hindsight to think through what he saw and discount what he did not. The applicant indicated that part of his difficulty at that time may have arisen because of his troubled/problematic relationship with the school. His evidence was that he had a better memory than what was contained within the interview.

59. The applicant was taken to further evidence about the young person exhibiting unusual behaviour and whether it was ‘sexualised conduct’. The applicant gave evidence that he said at the time, in his affidavits that he would have raised/reported the behaviour. His evidence however dealt with what he observed during ‘truth or dare’. The applicant had recounted other behaviour in separate observations about ‘S’ outside of the ‘truth or dare’ game.

60. The applicant was taken to his assessment by the expert [Dr Seidler]. The applicant gave evidence that he had told the expert that he was a ‘cheeky student’, and had been spoken to for not having his shirt tucked in or his hat on (school uniform). The applicant was asked specifically whether he agreed that his disciplinary history was extensive, to which he answered ‘No’. The applicant was asked about an incident of apparent bullying of a student ‘L’. The applicant could not recall such an incident. The applicant stated that ‘L’ was at the time his ‘best friend’.

61. The applicant did not recall being asked to see a counsellor in March 2008 and that concerns had been expressed about his mental health. Various questions were put to the applicant about altercations with other students including punching students. These allegations were not recalled in any specificity by the applicant. His counsel noted that a series of questions all related to his primary school years.

62. Various other incidents were raised. One involved throwing items, another involved a fight with another student (‘S.D.’). Other incidents referred to a sexually explicit drawing in a student’s locker. There was some debate about the number of times the applicant had been asked to attend the school/student counsellor. One ‘hitting’ incident involved a girl whereby on the applicant’s evidence he was trying to knock a piece of gum out of her hand before she placed it in her mouth. His hand ended up hitting her face. The school found the matter was not intentional, but careless.

63. An incident occurred where excrement was smeared inside the toilet facility leaving a message on the walls. (The message related to the lack of toilet paper). Another incident involved a student ‘E’ being hurt in a Japanese class. These incidents throughout the schooling required the attendance of parents and sometimes resulted in brief suspensions from school.

64. The Tribunal was taken to another incident in the High School years whereby the applicant’s behaviour ultimately caused his parents to be called to the school. This concerned the posting of certain information/material on a computer platform/site which was related to an education component. The matter was related to a geography class whereby posts were created using sexually suggestive names. Various individuals were interacting with the site ‘live’ and some posts were screen copied and placed on general social media. Ultimately the posts were ‘cleaned up’ the next morning by the teacher, and the applicant’s evidence was that he owned up to the posts to the teacher at lunch that day.

65. The applicant omitted to advise that a third party was involved with the posting conduct because of the way such ‘deflection’ was apparently dealt with at the school. The applicant was asked whether in obtaining access to the school platform he had agreed to use all electronic devices responsibly. The applicant’s evidence was that such an undertaking only related to his use at school, not away from school in the home.

66. After some further argument about what was and was not school use the applicant was put various propositions concerning what it meant to be acting respectfully with computers (including his laptop on the journey from school). A further proposition was put that looking at pornographic images in the school bus did not equate to acting responsibly, to which the applicant agreed.

67. In re-examination of his first suite of evidence the applicant was taken to page 70 of Exhibit ‘R-1’ being a letter from the school concerning the breach of the web platform user agreement [paragraphs 64-66 above]. When asked how the information in the letter came to light the applicant indicated that it was because he disclosed it, by approaching the school about the issue. The applicant was asked to clarify if he thought the issue (which was initially seen as amusing or funny by the applicant) remained so. The applicant stated that by the time he spoke to the teacher he viewed the conduct as a mistake.

68. The applicant was taken to his personal account that he wrote concerning the faecal incident in the toilet. [Paragraph 63 above]. The applicant at hearing confirmed that his current view is that the conduct was ‘disgusting’.

69. In re-examination the applicant was asked about the instance of placing an inappropriate image in another pupil’s locker. The applicant clarified in his evidence that whilst he told the school at the time that he was responsible for the matter, his evidence was that it was a friend who slipped the item into the locker. The applicant also confirmed that the images which were on his laptop on the school bus were raised in these proceedings by the applicant, in that they were initially disclosed through the applicant’s affidavit.

70. The Tribunal inquired of the witness as to the circumstances and context of the pirate movie on the laptop. The applicant indicated that that movie was viewed by him and ‘S’ and at the end of the scene referred to in the evidence the movie finished so his usual practice would have been to shut the computer down and place it back in his bag.

71. The applicant’s initial evidence concluded but he was recalled later in the hearing as was the expert who was recalled after the provision of a supplementary report.

Expert Evidence

72. Dr Seidler gave evidence at the hearing. In evidence-in-chief the expert was asked about the recent receipt of documents from the applicant’s former school.

73. In cross-examination the witness was taken to various items of material in evidence before the Tribunal. In particular reference was made to certain behaviours of the applicant including the faecal smearing. The expert was asked whether this was indicative of behavioural problems. The expert answered that it can be indicative but not always. A proposition was put that it manifests as the external expression of a psychological problem to which the expert answered that it can be but there may be other problems. It could constitute normalised behaviour amongst peers but the expert had not had the chance to discuss those issues with the applicant.

72. The witness was taken to paragraph 76 of her report (Exhibit ‘A-6’) which dealt with protective factors. It was suggested that the expert had been provided with material relating to the applicant from kindergarten until when he left his long term school a couple of years prior to the HSC. It was also suggested that the list of relevant items was incomplete. However of those before the expert it was suggested that they were indicative of an underlying psychological problem. The expert agreed that it can be indicative of that situation. There was some agreement that such a pattern showed a general disregard for other people’s feelings. The witness indicated that other issues might be at play to explain the basis for certain behaviours.

73. The witness was asked to explain what sort of matters might be at play in her assessment. Reference was made to immaturity of the applicant, a response to the school’s culture, a degree of being self-centred. The witness suggested that much of the response could be impulsive behaviour with a lack of understanding of consequences, due to the age of the applicant at the time.

74. The witness was asked whether her assessment had changed. She answered that it was a complex issue and the applicant was certainly further along the spectrum than her initial report shows, more towards the ‘abnormal side’. However the witness indicated that normal adolescent behaviour needed to be discounted. The witness indicated that in respect of antisocial behaviour or conduct in her opinion he wouldn’t necessarily fit that assessment as an adult.

75. It was suggested that the applicant was trying to mask his history to the expert, and reasons were suggested by way of motivating factors. The witness declined to speculate in the absence of any information from the applicant.

76. Various other matters concerning the extent of the applicant’s disclosure, what the expert was able to verify in interview, and the seriousness (or otherwise) of certain conceded aspects of the applicant’s behaviour history was discussed with this witness and the Tribunal. The witness was taken to the nature of the disclosures the applicant made concerning the behaviours on the school bus. Again the conflict in that evidence centred on what the applicant maintained in 2017 contrasted with what was recorded in the school interview/running record following the reports.

77. The witness explained that what the applicant had disclosed to her were behaviours which she identified as pushing boundaries especially in respect of his then school which he found repressive.

78. The witness used an analogy to explain her assessment of the applicant. There are various pieces for a picture (jigsaw puzzle) of the behaviour, however as a piece changes (which it had after further evidence at hearing), there is a greater history of bullying difficulties and interpersonal issues. However does that change the assessment, does that change indicate the presence of a serious disorder or is that normal adolescent behaviour, or a specific reaction to the school’s brand/unique culture/authority?

79. The witness indicated that looking at the overall picture of the applicant, most or none of the other pieces had changed significantly so in the absence of such a change, the expert witness was reluctant to state that there was a serious mental disorder present, and that as a result the overall assessment should change. The witness was reluctant to diagnose or find an emerging anti-social personality disorder. Whilst the risk assessment might not change, the issue might need to be flagged.

80. In re-examination the witness stated that the applicant would not meet a large number of the assessment criteria for anti-social personality disorder. The witness outlined how such a diagnosis cannot be made prior to 18 years of age, and that in her opinion many childhood issues are not necessarily representative of how an individual might function in adulthood.

81. The witness stated that based on further material the risk to the applicant was considered slightly higher but not significantly higher. It was agreed that the applicant would seek a further report from the expert at the conclusion of her evidence, based on the matters arising from the hearing.

Second Day of Hearing

84. The applicant was recalled to give further evidence on the second day of hearing.

Applicant’s evidence

85. In evidence-in-chief the applicant adopted his further affidavit (Exhibit ‘A – 8’)

86. In cross-examination the applicant was asked about his further assessment by the expert in April 2017. The applicant stated that he initially didn’t tell her about the faecal smearing incident and some of the primary school behavioural matters because he had forgotten about some of them and was too embarrassed.

(The applicant was recalled after the expert’s second session giving evidence)

87. He was asked why he did not raise the ‘discrepancies’ in the written accounts of the behaviour on the bus previously. In reference to paragraph 57 of the first report the applicant believed that he had raised the issue of the ‘sexualised behaviour’ of one boy (‘S’).

88. Various propositions were again put to the applicant such as the female student trying to sit on his lap (‘M’) , and whether he tried to push her off, pulling pants down to expose underpants and a suggestion that another student (‘E’) also sat on his lap. The applicant emphatically denied all of these allegations. The applicant was also asked whether he dared one student to touch another student inappropriately.

89. A further suite of allegations were put to the applicant and following legal argument the respondent submitted that there was misinformation in what he was telling the Tribunal and what he told the school and the expert. Various further suggestions were put concerning the behaviour of the younger children, all of which were denied by the applicant.

Expert Evidence

90. In evidence-in-chief Dr Seidler adopted her further report of 18 April 2017 (Exhibit ‘A-9’).

91. In cross-examination the expert stated that the applicant had told her that he had forgotten about some of the school behavioural incidents. When questioned as to whether the applicant had indicated that he was ‘too embarrassed’ to tell her the witness stated that she had no knowledge of this reason.

92. The witness was taken to paragraph 20 of her further report, where she referred to a long term behavioural pattern or pathology only being ‘situational’ in nature, such as at the specific school. The witness gave evidence that on her understanding there were 7-10 incidents between years 2 and 10, which roughly equated to one a year. It was considered whether this was juvenile immature behaviour or a pathology of inappropriate behaviour. In the witness’ view the five years behaviour measures (referred to in the long term patterns) relate to offenders. As the applicant is not an ‘offender’ then such issues must be considered with such a caveat.

93. Counsel for the respondent suggested that five years ‘non offending behaviour’ is not long enough. However the witness’ understanding was that there had been no incidents since the age of 16 which is a period of four years. The witness suggested that because of the applicant’s young age (20 years) such a period (4 years) should be given greater significance than a longer period of an older adult with a longer period of positive behaviour. In her evidence the witness observed that in the four year period the applicant had gone to another school, and had also transitioned out of school to university.

94. In re-examination the witness was asked about the caution attaching to the young age. The evidence was that with youth, risk usually increase rather than decreasing risk. Anti-Sociality tends to burn out as people age.

95. The Tribunal inquired as to the Expert’s observations concerning the transitioning from school to university. It was conceded that there was a possibility that the applicant might be minimising behaviour. In respect of questions about insight the witness indicated that in her opinion the applicant now views the prior behaviour as immaturity, in that he was ‘young and stupid’. The cultural factors concerning the impact of the school, culture/environment had now evaporated. The witness restated her previous evidence that in her opinion some children rebel against such cultures and are (seen as) ‘oppressive’ environments.

96. In her view the applicant sees himself as a 20 - year old adult, and his goals are pro-social and mature, seeking a job, family etc.

Lay Witness 1

97. The applicant’s father gave evidence. In evidence-in-chief he adopted the contents of his affidavit (Exhibit ‘A-4’). In cross-examination the witness was asked about what his affidavit was referring to, to which the witness advised he was referring to the truth or dare game that had allegedly escalated into sexualised behaviour.

98. The witness was asked what the applicant had told him, and advised that he had spoken to the applicant about the pornographic (naked female) images on his computer and also that he understood some involvement with the truth or dare game, but did not believe that the applicant was involved in the game when (‘M’) sat on his lap.

99. The witness was questioned as to what he meant by his sworn evidence in his affidavit at paragraph 14 whereby he attested: ‘No one else has ever accused him of inappropriate or indecent conduct before or after these allegations’ . The witness was taken to the various school-based allegations (fighting in primary school) and the computer platform issue with the renaming on the social media site.

100. The witness agreed with the proposition that posting or facilitating pornographic matters on the school sponsored/accessed platform is inappropriate conduct. As a result it was put to the witness that the reference in his affidavit was misleading. It was suggested to the witness that he didn’t put school based issues in the affidavit, however the witness maintained that the paragraph was couched in the context of the school bus only.

101. Various questions were asked concerning the witness’ knowledge of his son’s counselling issues at the school. Upon examination of the various items in the section 58 documents, the witness agrees that he would have approved or authorised the relevant counselling sessions, however he maintained that he was aware of one time that he met with the school counsellor concerning incidents involving ‘S.D.’

Lay Witness 2

102. The applicant’s mother gave evidence at hearing. She had re-read the affidavit (Exhibit ‘A-5’) only that day and wished to amend or clarify part of that evidence concerning words attributable to one of the parents of the younger children on the school bus (‘E’). The affidavit as amended was adopted by the witness as true and correct.

103. In cross-examination the witness was asked what she meant by her reference in the affidavit. The witness indicated that she had assumed that the applicant had looked at the naked women on his computer as he was a 15 year old boy. In respect of the issue with the school website (the posting), the witness was not clearly aware of the details of the matter. She knew that there was some issue however understood that her husband was dealing with it. The witness explained that at the time she was focused on the health of her elderly father.

104. In respect of the faecal matter (smearing) and other behavioural issues in primary school, and later, the witness was aware of these matters. The witness stated that in her view some of the problems were attributable to the school, in that they forced certain kids to play together. The witness gave evidence that there were incidents all they way through school, and part of the issue related to the fact that boys ‘get physical’ (with each other), but the applicant has grown out of that behaviour after leaving that school, at 16.

105. The witness believed that one of the serious incidents in the toilet involved the applicant ‘tickling’ the other child, whereas the school’s version was that he was ‘strangling’ the other child. When the more serious allegations arose the witness said that she and her husband advised the applicant to not get involved with the school’s requests, and for that reasons he did not fully take part in the process. In the witness’ view it was as though the school had already ‘marked his card’.

106. The witness was asked about her letter to the respondent of 20 March 2016 with reference to property allegedly stolen form the applicant’s bag on the school bus. (Page 16 Exhibit ‘R 1’). The witness confirmed that the two students involved were not “E’ or ‘S’ but rather ‘M’ and ‘J’. It was suggested that somehow this was motivation for the allegations against the applicant.

107. The witness stated her understanding that at no times had the applicant been accused of bullying younger children. The witness’ understanding was that the applicant only witnessed the kids playing the ‘truth or dare’ game.

Respondent’s Submissions

108. The respondent made oral submissions at the conclusion of the evidence in addition to written submissions. It was submitted that as the matter fell within the Tribunal’s administrative review decision the requirement was to make the correct and preferable decision having regard to the evidence before the Tribunal.

109. It was submitted that any submission from the applicant’s representative that the Children’s Guardian had made some sort of error, was irrelevant, as the Tribunal was now deciding the matter afresh. The respondent submitted that the applicant is only 20 years old and that the allegations occurred not that long ago. In the respondent’s submission the school history was persuasive.

110. The respondent submitted that the applicant had told so many lies to the Tribunal that he is attempting to manipulate the evidence in this case. Submissions were made about the conflicting evidence at the second day of the hearing, and as a result the respondent submitted that the applicant cannot be trusted. It was submitted that was based on this evidence the applicant was further along the spectrum and as a result this further constitutes his risk to children.

111. The respondent submitted that the allegations about the applicant exposing himself and conducting ‘boob inspections’ would in themselves (when coupled with his lying), be enough to create a relevant risk. In addition the respondent submitted that the risk is significant.

112. The respondent also referred to the expert’s evidence where, in response to specific issues, she notes that the behaviour is of greater concern. In addition the respondent submitted that the lack of being totally frank is itself of concern. The respondent highlighted the evidence that the applicant told his parents that he did not witness sexual conduct on the bus, but then told the Tribunal that he witnessed ‘S’ exposing his penis and ‘M’ ‘touching’. Reference was made to the fact that the applicant was in a relationship (as referred to in paragraph 28 of Exhibit ‘A-2’). The respondent submitted that in the absence of any affidavit or other evidence from the girlfriend/artner, then it was open to the Tribunal to draw an adverse inference in accordance with the principle set out in Jones and Dunkel. (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).

113. Criticisms were made of the evidence of the parents either due to incomplete disclosure by the applicant or other matters. Reference was made to the DDP e-mail to the applicant’s father concerning the basis of the withdrawal of the charges.

Applicant’s Submissions

114. The applicant made oral submissions at hearing basically concerning an observation that the respondent’s case appeared to be based solely on the character assassination of the applicant at hearing. Submissions canvassed the minimal testing of the evidence concerning the serious matters occurred, no witnesses were called and there was a focus on matters occurring in the applicant’s childhood well prior to adolescence. The applicant also made detailed written submissions.

115. The applicant filed written submissions dated 11 May 2017 and 16 June 2017. In those submissions the applicant rebutted the matters raised by the respondent at hearing and where it was believed that the respondent had mischaracterised the applicant’s evidence. The submissions sought to place the evidence in a broad light rather than questions and answers in isolation during the evidence. We do not repeat the applicant’s submissions here other than to note that they focused on addressing the central issue for determination by the Tribunal, evidence of risk that is both real and appreciable, rather than addressing submissions as to the applicant’s character. We address the applicant’s duty, the issue of the relationship between character and risk elsewhere in these reasons.

Consideration

Section 30 (1) considerations

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

116. The applicant's application to the Tribunal is brought about by an adverse risk assessment of him by the respondent. Those matters encompass the matters whereby the applicant is accused of committing an act of indecency with a younger child on two occasions.

117. The seriousness of the allegations is significant, as the alleged victims were younger primary school children and the applicant was a high school child in year 10. However these two matters which were withdrawn by the DPP were the only matters considered in the risk assessment. No other issues were raised which is clear from both the Notice of Proposed Refusal and the decision and reasons for decision. The other matters ventilated through the lengthy hearing of the matter were never formally considered by the respondent in deciding to refuse a clearance, however they formed a significant part of their response to the applicants application for review and to set aside the decision. We note from the section 58 documents that the respondent had obtained material concerning the applicant’s school behavioural record prior to concluding the risk assessment.

118. The Risk Assessment Report of 21 June 2016 within the section 58 documents states: .. the incidents that the allegations were not isolated but were preceded by incidents of adverse behaviour by the applicant since 2006 and that his behaviour had escalated. Why these matters had not been referred or alerted to in the Notice of Refusal reasons for decision under section 15 (4) (i) or (k) of the Act is unknown.

119. The Applicant denied both allegations for which Court Attendance Notices were issued, and in addition denied further matters put to him in the hearing by the respondent which were related to the formal allegations.

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

120. The allegations relate to matters said to have occurred approximately four years ago. The only evidence concerning the applicant’s conduct since those matters referred to in section 30 (1) (a) is located in paragraphs 15 and 16 of Exhibit ‘A-8’ the further affidavit of the applicant, and Exhibit ‘R-5’ received after hearing. ‘R-5’ refers to information obtained by the respondent from the school that the applicant subsequently transferred to. That material was obtained under section 31 of the Act is significantly positive and otherwise unremarkable. The Tribunal therefore infers that the conduct of the applicant in the intervening period has been satisfactory.

121. The applicant’s Counsel submits that the applicant has behaved in an exemplary manner since the allegations, and this is also illustrated by employer and school references / records. We note that there is nothing adverse attaching to the applicant’s conduct on the evidence and material before the Tribunal since the allegations.

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

122. The applicant was approximately 16 years of age at the time of the alleged conduct.

(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.

123. The victims in the section 30 (1) (a) allegations were approximately 8 and 9 years of age. All were children but the applicant was significantly older than the alleged victims. For this reason the victims could be considered to be especially vulnerable and naïve in contrast to the applicant.

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

124. The difference in age between the applicant and the complainants / victims was approximately 7-8 years. The Applicant and the victims attended the same school and had caught the school bus together for some time prior to the allegations being made.

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

125. The applicant is aware that the complainant’s in the allegations were children.

(g) The person's present age.

126. At the time of the hearing the applicant was 20 years of age.

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

127. The applicant does not have a criminal record. A Criminal Record usually refers to convictions as set out in a number of legal dictionaries, such as Butterworth’s Concise Australian Legal Dictionary (second edition) and the LexisNexis Concise Australian legal Dictionary 4th Edition. Each refers to:

A written history detailing a person’s past criminal convictions.

as being the settled definition of the term criminal record. We also note that the Criminal Records Act 1991 deals solely with the term convictions as being within the realm of the Long Title of that Act. For those reasons we find that the first aspect of this provision is not applicable to the current matter.

128. There is an administrative record of the two matters dealt with by way of Court attendance Notices, and these relate solely to the matters considered under section 30 (1) (a) of the Act.

129. The second aspect of this provision is therefore also not applicable due to the fact that as a matter of record no offences occurred and no criminal record exists. However even if it were to be relevant, the issue has already been addressed in our reasons above at section 30 (1) (b).

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

130. The Applicant provided a psychological report in support of his application from a Forensic Psychologist. That report (and supplemental reports) concluded that the applicant posed an overall low risk to the safety of children. In using this language we refer to the words of the expert in her final paragraph (20.) of Exhibit ‘A-9’.

I am aware that [CQX] has a pattern of behaviour during his school years that was inappropriate, boundary pushing and at times, aggressive and abusive. However, this behaviour was not chronic and pervasive and rather, seemingly situational in nature and in all other aspects, [CQX] appears to function well and without evidence of notable risks associated with future sexual abuse, violence or otherwise abusive behaviour. Further to this, with maturation, graduation from school and a more adult lifestyle, greater intellectual capacity to consider consequences and [CQX] level of insight into appropriate conduct, it is my contention that [CQX]’s risk will likely be well managed in the community without the need for restrictive practices or intervention.

131. The earlier (substantive report) concluded that the applicant posed a low risk of future sexual abuse. The report (Exhibit ‘A-6’) found 12 protective factors and two elevating factors. Whilst the second report was necessary from what arose during the initial examination of the witness at hearing (and matters relating to disclosure or availability of records), the consistent theme we observe was that the problematic behavioural issues (which might elevate risk to children) peaked at the time of the response to the criminal allegations. With the discharge of those matters, and the applicant being placed in a less confronting environment (through a placement in a school environment to which his nature was more suited), as well as his maturing into adulthood, leaving school and undertaking tertiary studies and part time employment, the applicant’s overall risk has significantly diminished.

132. At paragraph 79 of the initial report the expert concluded:

… from a risk assessment perspective, there does not appear to be any need to future reduce risk or improve [CQX]’s functioning. Rather, he appears to be a stable and prosocial individual with positive future goals and the capacity for productive and safe community participation. I do not see any need to limit [CQX]’s vocational opportunities…

133. The report was tested during the hearing. Dr Seidler’s report set out the evidence leading to the conclusion that the applicant poses a low overall risk, albeit ultimately couched in different terms following the second report. However we infer the same import arises from her overall assessments and refer to the matters outlined at paragraphs 130-132 (above). We find that the report is sufficiently objective bearing in mind the technical issues of assessing ‘non-offenders’ under the various risk matrix and testing procedures developed in the forensic psychology field. Nothing in the report (either in written or oral answers at hearing) causes us to discount it and it’s conclusions in accordance with the provisions of Makita v Sprowles (Makita Australia v Sprowles [2001] NSWCA 305). The Court set out the relevant principle for taking into account expert evidence from paragraph [83] onwards.

83 The English and Australian authorities so far referred to analysed the decisions at common law. Expert evidence in this State is now primarily regulated by the Evidence Act 1995 (NSW). The relevant provisions are in ss 76-80:

"76. Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

77. The opinion rule [i.e., s 76] does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.

78. The opinion rule does not apply to evidence of an opinion expressed by a person if:

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

79. If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

80. Evidence of an opinion is not inadmissible only because it is about:

(a) a fact in issue or an ultimate issue; or

(b) a matter of common knowledge."

84 In HG v R [1999] HCA 2; (1999) 197 CLR 414 at [39]- [44] Gleeson CJ construed these provisions as enacting some of the central elements of the common law just discussed.

"[39] An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question [Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642; Arnotts Ltd v Trade Practices Commission [1990] FCA 473; (1990) 24 FCR 313 at 347-348]. Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie's written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.

[40] Mr McCombie's report referred to a number of matters he took into account in reaching the conclusions he expressed: things he was told by the complainant, by her mother, and by the general practitioner who referred the complainant for assessment; his training as a psychologist; his experience in counselling victims of sexual abuse; and his knowledge of patterns of behaviour of disturbed children. It is not in dispute that psychology is a field of specialised knowledge, and that a psychologist may be in a position to express an opinion based on his or her specialised knowledge as a psychologist. However, the witness had to identify the expertise he could bring to bear, and as Clark v Ryan [(1960) [1960] HCA 42; 103 CLR 486] illustrates, his opinions had to be related to his expertise.

[41] If all that Mr McCombie had said was that, based on his study, training and experience, he considered that the behaviour of the complainant during 1992 and 1993, as recounted to him by others, appeared to be inconsistent with her having been sexually abused during that time ... , then that might have been one thing. It would have required identification of the facts he was assuming to be true, so that they could be measured against the evidence; and it would have required or invited demonstration or examination of the scientific basis of the conclusion. ... What defence counsel wanted was evidence of his opinion that, although the complainant had been abused, the abuse had occurred back in 1987 when, for a period of a month, she was in the custody of her father, and that it was the father who was the abuser. That opinion was not shown to have been based, either wholly or substantially, on Mr McCombie's specialised knowledge as a psychologist. On the contrary, a reading of his report, and his evidence at the committal, reveals that it was based on a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist. He did not put to the complainant, for her comment, the suggestion that she had been abused by her father; the complainant told him she could not remember her father. He does not appear to have considered or investigated the possibility of abuse by some third party. He appears to have inferred, for no apparent reason, that the words `stop it daddy', attributed to the complainant by her mother, referred to sexual as distinct from some other form of abuse.

[42] Logically, there were a number of competing possibilities. The complainant may have been sexually abused by nobody; she may have been abused as she claimed, by the appellant; she may have been abused by her father; she may have been abused by both her father and the appellant; she may have been abused by some person or persons unknown. It was not demonstrated, and it is unlikely, that it is within the field of expertise of a psychologist to form and express an opinion as to which of those alternatives was to be preferred.

[43] To paraphrase what was said by Dixon CJ in Clark v Ryan [(1960) [1960] HCA 42; 103 CLR 486 at 492] about the expert witness in that case, the evidence the defence sought to lead from Mr McCombie really amounted to putting from the witness box the inferences and hypotheses on which the defence case wished to rely.

[44] This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture `opinions' (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. The opinions which Mr McCombie was to be invited to express appear to provide a good example of the mischief which is to be avoided."

85 In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]).

86 That statement of the law corresponds with the views of Black CJ, Cooper J and Emmett J in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463 at [21]- [23]:

"[21] The primary judge considered that it was permissible to examine the reports and draw inferences from the form and contents of them. His Honour considered that it was permissible to take into account:

·the factual context in which a report was produced;

·the description and designation of the person making the report;

·the contents and language of the report and the nature of the assertions made in it;

·the form of the report;

·the expressed qualifications of the person making it as set out in the report.

[22] However, it is not permissible to conclude from those matters alone that an author of a report has any specialised knowledge, except to the extent that the report states (or it otherwise appears from admissible evidence) what that knowledge is. Nor is it permissible, by reason of those matters alone, to conclude that any specialised knowledge that the author of a report has is based on any training, study or experience of the author. Thus, it is not permissible to conclude, simply because a person expresses an opinion on a particular subject, referring to particular technology, that that person has any specialised knowledge in relation to that subject. There must be specific evidence as to specialised knowledge of the person in relation to that subject and as to the training, study or experience upon which that specialised knowledge is based.

[23] The further requirement that an opinion be based on specialised knowledge would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached. Thus, a report in which an opinion is recorded should expose the reasoning of its author in a way that would demonstrate that the opinion is based on particular specialised knowledge. Similarly, opinion evidence given orally should be shown, by exposure of the reasoning process, to be based on relevant specialised knowledge."

134. Whilst we note the Respondent’s submissions concerning expert reports at paragraphs 25-27 of their written submissions dated 28 June 2017 we do not agree that the conclusions expressed therein are binding on the Tribunal. Whilst noting the observations of the Tribunal in CGP v Children’s Guardian [2017] NSWCATAD 12 referring to BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 and BKV and other decisions of the Tribunal similarly constituted, we do not agree with the conclusion drawn by the respondent to these matters. Whilst some caution should be applied to any evidence (and issues of admissibility and weight will often arise, accepting the proposition in Makita), in our view significant weight should attach positively to the report in respect of the applicant, when the total picture of written reports and oral evidence of the expert is considered.

135. On the basis of the above we accept substantially the expert evidence and conclude that the likelihood of any repetition (both of the conceded school based behaviour) and the non-conceded school bus behaviour, is low.

136. Turning to the second aspect of this mandatory consideration (the impact on children of any such repetition) in our view if the alleged behaviour was to occur again, then the impact on children would be significant, especially noting that the applicant is now an adult. However it is difficult to speculate further as to what the specific impact would be (as such a situation – travelling on a school bus) is highly unlikely to occur. However the specific offences/conduct (in the context of access to children through work or some other foreseeable context) – would have a serious and significant detrimental impact.

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

137. The applicant tendered two affidavits and an expert report in support of his application, and was subject to extensive cross-examination at hearing. In addition the applicant tendered two affidavits in support, references and other material supporting his application. Whilst it is conceded that at specific times aspects of the applicant’s evidence was called into question at hearing, we note the following matters. (a) Not all of Counsel’s assertions were exact in respect of apparent inconsistencies / contradictions in the evidence. Both the applicant and the respondent’s counsel seized on technical issues to both exculpate and inculpate the issues depending on their desired case. This is not unusual in cross-examination.

138. In our view the most significant contrast in the evidence arose from the school record of interview/running record following the making of the trigger allegations. The provenance of this document was never verified with the Tribunal. Clearly the material had been obtained by the respondent using it’s powers under the Act, but the applicant disputed it’s accuracy and specific provenance.

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

139. There does not appear to be any relevant information within the respondent’s section 58 and 31 material.

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

140. The respondent made various submissions and adopted a position during the hearing which in our view focused on the applicant’s character. In particular a repeated submission that the applicant was lying or misleading the Tribunal. We will return to this issue later in these reasons.

141. However, as a general observation leading to a finding, we do not agree with the submission that the applicant was deliberately dishonest in his evidence. Whilst a failure to fully disclose matters may be a relevant consideration when weighing and assessing evidence, a ‘breach’ of section 27 (4) of the Act, is not itself determinative of risk. Such a situation, if established, should be examined for what are the background circumstances. Matters to be disclosed are arguable between the parties, and for those reasons various submissions are put. We note that in this way where the term ‘fully’ appears in section 27 (4), and ‘any’ arises in section 30 (1) (k), in an inexact environment of relevant instructions and human failure neither party can be held accountable for their conduct in the proceedings to an ‘exact’ standard.

140. The purpose of the provisions as we understand them is to allow a proper assessment of the issues by the Tribunal. Coupled with that is the implied obligation arising from a duty to fully disclose, that is not to deliberately omit to disclose a matter which on an objective test would be of relevance to the central task that the Tribunal must perform in considering the current level of risk.

141. To determine a matter unfavourably on an apparent failure to properly adhere to the above requirements of section 27 (4) and 30 (1) (k), would in our view lead the Tribunal into error. In the case of Tilley v Children’s Guardian [2017] NSWCA 174 the Court did not identify any error of law in the Tribunal failing to consider the clear and obvious incomplete disclosure of the applicant under section 27 (4) in determining whether the Tribunal fell into error (for any reason). The basis of the Tribunal finding in that matter against that applicant was not based on a failure to disclose but on an on assessment of the evidence and material almost totally submitted by the Children’s Guardian.

Further Consideration

144. We have had regard to all of the evidence and submissions in these proceedings, even if we do not refer to all of that information specifically in these reasons. In particular we have had detailed regard to and consideration of the evidence given at hearing. For this reason the evidence has been substantially reproduced in these reasons, and we base our findings in part on an assessment of that evidence as incorporated into the later part of these reasons. All material has been considered however the material of the expert witness was given significant weight, having regard to the fact that their evidence was scrutinised, and that they have provided expert evidence on the substantive consideration for the Tribunal, that is whether the applicant is a risk to the safety of children. In particular the applicant's evidence and the expert evidence were considered to a significant extent in determining the major issue for determination, whether the applicant poses a real and appreciable risk to the safety of children and young persons.

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

146. However earlier in the matter of Office of the Children's Guardian v CFW [2016] NSWSC Harrison J. observed the following concerning the approach arising from observations made in BKE.

The statutory test

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

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

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

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

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

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

147. However we note the case of Children’s Guardian v CKF [2017] NSWSC 893 has given further guidance on the matter, in particular the position that a lingering doubt arising from a disputed matter should not automatically count against an applicant. At paragraphs 49 – 56 inclusive Davies J embarks on a further consideration of the ‘statutory test’ referred to in CFW via the case of BKE with reference to the High Court case of M v M.

49. It is also of significance that in the paragraph which intervened between [109] and [111] the Tribunal specifically referred to the judgment of Harrison J in CFW. Earlier the Tribunal had in its reasons set out that portion of Harrison J’s judgment that dealt with the statutory test at [13]-[17] of CFW. At this point the Tribunal referred to Harrison J’s judgment at [48] of CFW where his Honour discussed the need to weigh all reasonable suspicion in the process of determining what might happen in the future. That is a strong indication that the Tribunal did not put aside the allegations in determining whether the applicant posed a risk to children. It is also difficult to see how it can be said that the Tribunal failed to apply the appropriate test where, in the paragraph immediately preceding its conclusion that the Defendant did not pose a real and appreciable risk to children, the Tribunal had referred to the very case which elaborated on the statutory test.

50. What the Tribunal said in [113] shows that the Tribunal was alive to the correct test that it had to apply when it said:

In particular the applicant's evidence and the expert evidence were considered to a significant extent in determining the major issue for determination, whether the applicant poses a real and appreciable risk to the safety of children and young persons.

51. It is apparent from that passage also that the basis for the Tribunal’s conclusion, set out somewhat repetitively in [115], [116] and [118] of its judgment, was the evidence of the Defendant and the evidence of Dr Seidler.

52. One final point should be made about whether the Tribunal applied the correct test. In CFW Harrison J said:

[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]. (emphasis added)

53. The notion that the “lingering doubt or suspicion” should be counted against the defendant seems first to have been identified by the Tribunal in BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 where the Principal Member said at [41]:

If a lingering doubt or suspicion remains, as it does, that counts against BSR: see M v M at [21]; BKE at [33].

54. The reference to M v M is to the decision of the High Court at (1988) 166 CLR 69; [1988] HCA 68 and the reference to BKE is to the decision of Beech-Jones J in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523. The problem is that neither of those cases said or implied that it counted against the defendant if a lingering doubt or suspicion remained. It is necessary to set out not only the paragraph in M v M identified by the Tribunal in BSR but also the subsequent paragraphs to demonstrate that there is no basis for the gloss added by the Tribunal:

[21] Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

[22] In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. 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.

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

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

[25] Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M [1986] FamCA 62; (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) [1986] FamCA 52; (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

55. Similarly, in BKE Beech-Jones J set out most of what appears above from M v M and said at [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.

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.

148. The applicant's evidence in written and oral statements are that the serious trigger matters alleged did not occur. The denials were consistent (notwithstanding some contradictions in the answers). The complainant’s evidence was not tested beyond cross-examination and witnesses were not required by the respondent but rather the Tribunal was taken to the material provided by Police and the Department on behalf of the respondent. We note that the respondent submitted that they were not asked to provide any witnesses for examination. In any event the Tribunal received the denials of the applicant noting inconsistencies in written evidence from both complainant’s and accused. The respondent regularly submitted that the applicant was lying and the complainant’s were telling the truth.

149. However our substantive role is to assess risk, and whether specifically the applicant poses a risk to the safety and well-being of children and young people. The respondent’s submissions were often focused on a view that the applicant was an untrustworthy person who had a history of lying and was lying to the Tribunal. However this submission was based on inference from the evidence, and no independent evidence was adduced from witnesses to corroborate a particular fact so as to establish cogent grounds for lying. The credibility of a witness is a complex matter for an adjudicating body to discern, accumulating factors such as consistency of answers, plausibility of evidence, and demeanour and other factors well known to Court and Tribunals and the public at large.

150. We re-iterate our view that whilst the applicant was somewhat guarded in his answers at times, he was subject to cross examination, and as the transcript of day 1 shows, some assertions are simply not backed up by the record. We accept the applicant’s evidence as to the nature of the manner in which he responded to questions by the school, when called up to the Principal’s office following the school bus allegations. Whilst we do not condone any individual misleading someone without sufficient cause, we note that the applicant was at the time a child, being scrutinised in a manner whereby normal rights afforded citizens were not available, and that he was a person with a troubled and somewhat complex history with the school. The only matters that could be verified from the circumstances of pages 88-91 of Exhibit ‘R-1’ is that a person ‘J.N’.’ (who appears to be a staff member), was present identified as ‘support/witness’. We also note that much of the school record/interview record contained leading matters directed predominantly at the applicant and to a lesser extent other alleged protagonists on the bus.

151. The fact that the applicant rejected the school’s approach to him and other students through a rejection of the imposed culture and environment is not something that as the finder of fact we take issue with. Whilst his school, based behaviour is of some concern, we note his age, the circumstances, and the expert report of a contemporary assessment of a young adult. The manner in which educational institutions have managed the behaviour of students (both from a protective and punitive perspective) has been subject of much critical comment in recent times. Whilst we do not form a view that the school placed it’s reputation above the needs of certain students, we observed that some of the applicant’s witnesses gave evidence to this effect.

152. The fact that the applicant was in effect dismissive of the school culture and stated values, and rejected them in the form proscribed by the institution does not mean that his general morals or attitude were anti-social outside of the school setting. Whilst there has been evidence about the changed ‘moral compass’ of the applicant we note that at all times when at the school he was a child and had transferred at 16 to another school without further incident. In particular we note the written and oral evidence of the applicant’s parents.

153. We do not agree with the general submission that seems directed towards a position that a dishonest person being a real and appreciable risk to children.

154. Whilst we note that the respondent has raised their view of the applicant’s honesty in the context and evidence in these proceedings, (and that is in the broad compass of child protection), we do not accept that an applicant’s general character is necessarily in issue. The purpose of these proceedings is to determine what risk (if any) an applicant poses, and then to determine whether that risk is real and appreciable. The manner in which those issues are approached has been set out in the case law referred to in these reasons.

148. Character would only (in our view) be relevant where it was indicative of behaviour that caused a risk to children. Section 30 (1) sets out the relevant considerations. Whilst character could fall within section 30 (1) (a) (h) and (k) (where applicable), character is not always indicative of risk. A person with a criminal record of property offences in the past, or spent property convictions might be considered by the community to be of poor character, due to their antecedents. However in the absence of anything further (and noting section 30 (1) (h) it is doubtful that absent other relevant evidence they could be considered a risk to children.

149. In our view for the reasons set out above, the report and evidence by Dr Seidler should be given a larger weighting.

150. We note that the applicant was never asked to set out his exact version of events on the school, bus. The respondent relied on cross-examination arising from his affidavits and material within the section 58 documents and material obtained under section 31 of the Act. Whilst it is true that there were contradictions in some of the material, we reiterate the stated factors of age, passage of time, school, involvement, and the fact (uncontested) that at least one child exhibited inappropriate sexualised behaviour unsolicited by anyone (including the applicant). In the absence of other witnesses the most serious allegations were not substantially tested at the hearing. Whilst we note the Departmental finding, in our view whilst that finding was open to the Department, on the evidence and material before us we are unable to make a positive finding. We note the young age of the complainant’s / witnesses, the fact that they all seem involved in some way with borderline behaviour which escalated over time, and that there were major inconsistencies amongst them. The consistent matters at highest went to another student trying to sit on the applicant’s lap, and the applicant taking steps to limit that behaviour.

151. Notwithstanding that he was the oldest child privy to the matters, for the reasons outlined in his evidence, we accept the fact that he was somewhat constrained due to the serious interpretation that could be placed on any report, and the circumstances of the behaviour (with no older practical witnesses), coupled with a cultural school, based regime that the applicant found challenging and confronting. For these reasons, and the expert evidence, we accept that a failure to do more to limit such behaviour does not identify any latent and continuing risk. It would therefore appear that on the balance of probabilities that a positive finding cannot be made with regard to the act of indecency/assault allegations.

152. On the question as to whether any lingering doubt remains, we find that notwithstanding the lack of a positive finding, some doubt must remain. The evidence of the complainant’s and the applicant has never been tested at trial, nor are there any independent adult witnesses. The allegations are serious, and the applicant would not have been subject (in all likelihood) to a risk assessment had the ‘assessment trigger’ been absent. Either way police formed the view initially at least that a prima facie case existed, however that view was overruled by the prosecuting authority after a review of the evidence. We observe that reasonable prospects of a conviction to the requisite standard and ‘prima facie’ are linked concepts in the criminal law.

153. For these reasons we find that (consistent with the observations of Harrison J in Office of the Children's Guardian v CFW at paragraph [48]) we have explored those matters to the extent available to us at the hearing. We have set out those matters relating to the mandatory considerations above. We have also scrutinised the respondent’s material on this issue. However we reiterate that are unable to make a positive finding. The reasons as to why (notwithstanding a lack of a positive finding) we believe the applicant is not considered a risk are set out in part (above) and below in these reasons.

154. In particular we note the age of the applicant during the period for which his conduct has been scrutinised in these proceedings. (Early primary school to 16 years of age). We note the factual matters concerning his childhood behaviour and some of the reasons outlined by the expert and the applicant and his witnesses to explain those issues. We also note the significant positive change in the applicant since changing schools and moving into adulthood.

155. The respondent submitted that in the absence of any affidavit or other evidence from the girlfriend/partner, then it was open to the Tribunal to draw an adverse inference in accordance with the principle set out in Jones and Dunkel. However we note the applicant’s evidence (particularly in the initial detailed expert report (Exhibit ‘A-6’)) that this relationship commenced when the applicant was 17 years of age and as a result post dates all of the matters raised as being adverse by the respondent. On this basis we do not see how it is open to us to draw any adverse inference on the failure of the applicant to adduce evidence from this potential witness, especially having regard to the other evidence provided.

156. Substantially, for reasons outlined above we place significant weight on the various scrutinised conclusions in the expert reports in reaching the conclusion that any risk is neither real nor appreciable.

157. For the above reasons, notwithstanding that lack of a positive finding, on the evidence before us, we are not satisfied that the applicant poses a real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we so find.

158. In consideration of real and appreciable risk based on consideration of all the circumstances we find that the correct and preferable decision that the applicant does not pose a risk to the safety and well being of children and young people. We note that the safety, welfare and well being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

Section 30 (1A) consideration

166. The section 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.

167. In initial submissions prior to hearing the respondent submitted that no reasonable person would allow his or her child to spend unsupervised time with the applicant and that the applicant has not provided sufficient evidence to satisfy the Tribunal that it is in the public interest to make the order he seeks.

168. 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 in our view 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.

169. A reasonable person whilst approaching the manner with some caution would in out 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).

170. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 recently 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.

171. In CXQ’s situation a reasonable person would be aware of the circumstances of the withdrawal of the prosecution, the age of the applicant at the time of the commencement and continuation of the school based matters, and the pro-social assessment of the applicant by his expert. They would also be aware of the basis for his changes being predominately aligned with an onset of maturity brought about by entry into adulthood and transition out of school, but also positive changes in the applicant’s environment.

172. 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

173. 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.

174. In our view there is nothing contrary to the notion of the public interest in the granting of a clearance, and having regard to the applicant’s stated future purpose for obtaining the clearance, (both private work in an area for which he holds specific skills and community based volunteer work) we believe that it is in the public interest to grant the clearance. We note that there is no presumption (nor was there ever any presumption) that the applicant posed a risk to children, rather that he was the subject of an adverse risk assessment.

175. As a result we find that it is the public interest to make the order.

Conclusion

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

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

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

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

180. It therefore follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children's Guardian and that the Respondent/Children’s Guardian is to grant CQX a Working With Children Check clearance.

Orders

1. The decision of the Children's Guardian dated 27 June 2016 to refuse to grant the applicant a clearance is set aside.

2. In substitution for that decision, the following decision is made; The respondent is to grant the applicant a Working with Children Clearance.

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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 September 2017