DHZ v Children's Guardian

[2019] NSWCATAD 13

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DHZ v Children’s Guardian [2019] NSWCATAD 13
Hearing dates:	11 and 12 July 2018
Date of orders:	11 January 2019
Decision date:	11 January 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C A Mulvey, Senior Member L Houlahan, General Member
Decision:	(1)   The decision of the Children’s Guardian dated 22 March 2018 cancelling the applicant’s working with children check clearance is set aside. (2)   The Children’s Guardian shall forthwith reinstate a Working with Children Check Clearance to the applicant known in these proceedings as DHZ.
Catchwords:	ADMINISTRATIVE LAW – review under section 27(1) Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BFX v Children’s Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BKE v Office of the Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BVM v Children's Guardian [2016] NSWCATAD 65 Children’s Guardian v CHN [2017] NSWSC 1228 Children’s Guardian v CKF [2017] NSWSC 893 CHB v Children’s Guardian [2016] NSWCATAD 214 CHN v Children’s Guardian [2016] NSWCATAD 294 CKF v Children’s Guardian [2017] NSWCATD 6 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 CTM v Children’s Guardian [2016] NSWCATAD 280 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 CQX v Children’s Guardian [2017] NSWCATAD 286 DAR v Children’s Guardian [2018] NSWSC 942 M v M [1988] HCA 68; 166 CLR 69 R v Commission for Children and Young People [2002] NSWIRComm 101 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Smith v Commissioner of Police [2014] NSWCATAD 184 ZZ v Secretary of the Department of Justice [2013] VSC 267
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DHZ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: B Fogerty (Applicant) J McDonald (Respondent)
File Number(s):	2018/00110204
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. This applicant seeks administrative review of a decision of the respondent cancelling his Working with Children Check Clearance (WWCCC), in that the respondent (the Office of the Children’s Guardian) following a risk assessment, formed the view that the applicant poses a real and appreciable risk to the safety of children and young persons.

2. On 10 September 2013, the applicant had been granted a WWCCC under the Child Protection (Working with Children) Act 2012 (the Act), due to his work as a minister of religion. On 22 March 2018, the respondent issued a Notice of cancellation of WWCCC under s.23(1) of the Act. In cancelling the WWCCC the respondent focused on allegations of sexual misconduct which are alleged to have occurred between 1988 and 1991. The applicant allegedly made admissions whilst he was married to his now ex-wife, that he sexually abused his younger brother. It was alleged that the applicant was aged between 14 and 17 years and his brother 8 to 9 and 12 years when the sexual abuse took place.

3. The respondent also relied on allegations that the applicant sexually abused his son in around 2008 to 2009. The applicant is alleged to have then been aged between 34 and 37 and his son was aged between 9 and 12 years. Allegations have also been made in relation to the applicants inappropriate use of force in disciplining his children.

4. The applicant made partial admissions regarding the allegations of sexual abuse against his brother. He denied the allegations made against him concerning his son. His son has since retracted the allegations of sexual abuse.

5. The applicants employer conducted an investigation by its conduct and protocol unit. The investigator found that the information available supported the conclusion that in around 1988 to 1991 between the ages of 14 to 17 the applicant molested his brother then aged between 9 and 12. An overall allegation of sexual assault was found to be sustained. However, on the information available, the conclusion reached was that there was no reason to believe that any child or class of children were exposed to any harm by the applicant in maintaining his employment with the church.

6. The investigator did not find the allegations concerning the applicants son to be sustained as a result of a lack of evidence.

7. In reaching a conclusion that the applicant posed a risk to children, the respondent appears to have focussed on the seriousness and frequency of the allegations concerning the applicant’s brother and attempts made by the applicant to minimise his behaviour. The respondent has also considered the vulnerability of both alleged victims by virtue of their age, as well as the inherent power dynamic in their relationship to the applicant.

8. The Applicant in these proceedings is referred to as "DHZ". DHZ is the applicant's pseudonym used in these proceedings in conformity with the order referred to in par 10 (below).

9. The applicant seeks a finding by the Tribunal that he does not pose a risk to the safety of children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Act, the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons. We further find that a reasonable person, aware of all the relevant circumstances, would allow his or her 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. We also find that it is in the public interest to make the order to set aside the decision of the respondent on 22 March 2018.

10. On 20 April 2018 an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Jurisdiction of the Tribunal

11. The jurisdiction of the Tribunal under Part 4 of Act is protective and not punitive in nature, as set out by the Court when considering s 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 ss 3 and 4 of the Act.

“3   Object of Act

The object of this Act is to protect children:

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

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

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

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

12. Section 23 of the Act requires the Respondent to cancel a WWCCC on the following basis:

“23 CANCELLATION OF CLEARANCES

(1)   The Children's Guardian must cancel the working with children check clearance of a person if the Children's Guardian becomes aware that the person is a disqualified person or the Children's Guardian is satisfied that the person poses a risk to the safety of children. 

(2)   The Children's Guardian must notify the holder of the clearance in writing of the Children's Guardian's decision to cancel the clearance. 

(3)   Notice of a decision to cancel a clearance must set out the reasons for the cancellation and the right to seek a review under Part 4. 

(4)   The Children's Guardian must as soon as practicable after cancelling a clearance, give written notice of that cancellation to each person that the Children's Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance.”

13. The Notice of cancelling a WWCCC under s.23(1) was issued on 22 March 2018. The applicant stated in his application that he was notified of the decision on the same date. On this basis, the claim for administrative review filed 9 April 2018 was lodged within the required time period.

14. The grounds of the substantive application are:

“The decision of the Respondent to cancel the Applicant’s Working With Children Check Clearance should be set aside on the basis that there is no real and appreciable risk to the safety of children if the Applicant were permitted to work with children.”

15. More detailed grounds are set out in the written submissions filed by counsel for the applicant, Mr Fogerty.

16. The issue to be decided by the Tribunal is whether on the balance of probabilities the applicant poses a risk to the safety of children. In reaching this position the Tribunal is required to consider section s15, 30(1) and (1A) of the Act and determine what the correct and preferable decision is that the applicant be refused a WWCCC, or not, having regard to the material before it. In reaching that position we are mindful of the Supreme Court authorities that the risk must be both real and appreciable, not merely any risk.

The working with children legislative scheme

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

18. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: s 4 of the Act.

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

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

21. Other provisions of the Act deal with assessment requirements which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)).

22. Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions. The section relevantly provides:

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

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

(2) A person whose clearance is cancelled by the Children’s Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

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

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

(5),(6)   (Repealed)

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

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

(9) A "stay order" is an order under section 60 of the Administrative Decisions Review Act 1997 that stays or otherwise affects the operation of a decision that is subject to review by the Tribunal under this section.

(10) This section does not otherwise affect the operation of Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 .”

23. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Sections 30(1) and 30(1A) of the Act provide:

“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,

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

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

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

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

(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.

…”

24. In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered by the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267, where it was held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.

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

26. 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].

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

28. As stated above, the Tribunal is required to have regard to the matters contained in ss 30(1) and 30(1A) of the Act in deciding this issue. (See paragraph 23 above).

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

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

30. 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 s 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.

31. 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].

The hearing

32. The matter was heard on 11 and 12 July 2018. The applicant was represented at hearing by Mr Fogerty of counsel. The respondent was represented by Ms McDonald of counsel. The hearing was adjourned part-heard to allow written submissions to be filed by the parties. The applicant’s closing submissions were filed on 20 August 2018. It is this date that the decision of the Tribunal was reserved.

33. The applicant gave evidence at the hearing as did the expert report writer Dr K Seidler. The applicant also called evidence from his son who it is alleged he assaulted, his mother, sister and a person from his current employer. The respondent called the applicant’s brother to give evidence. In addition both parties relied upon volumes of written material.

34. The applicant, his son and mother and the representative from his employer all gave evidence in person. Dr Seidler and the applicant’s sister gave evidence by telephone. The applicant’s brother gave evidence by video link.

Written Evidence

Applicant’s written material

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

(1)   Exhibit ‘1’: the applicant’s statement filed on 17 May 2018;

(2)   Exhibit ‘2’: Statement of the applicant’s sister filed on 17 May 2018;

(3)   Exhibit ‘3’ Statement of the applicant’s mother filed on 17 May 2018 including Annexure “A” filed on 7 June 2018;

(4)   Exhibit ‘4’ Statement of a Senior Pastor of the applicant’s employer (the church) filed 17 May 2018.

(5)   Exhibit ‘5’ Expert Report of Dr K Seidler filed on 7 June 2018.

(6)   Exhibit ‘6’ Applicant’s written submissions filed 9 July 2018.

Respondent’s written material

36. The respondent filed substantial material under both s 58 of the Administrative Decisions Review Act 1997 (ADR Act) and material obtained since the commencement of the proceedings under s 31.

(1)   Exhibit ‘R1’: documents s-58 23 June 2018;

(2)   Exhibit ‘R 2’ : Statement of the applicant’s brother made 9 July 2018;

(3)   Exhibit ‘R 3’: Respondent’s submissions;

(4)   Exhibit ‘R4’: Investigation report February 2016;

(5)   Exhibit ‘R5’: Investigation report September 2017.

37. The following aide memoires were handed up to assist the Tribunal. The contents of which was not admitted into evidence:

Summary of original notes from investigator ‘AM1’

Table summarising allegations of events to Family and Community Services (FACS) ‘AM2’

Brief history of relevant proceedings

38. It was not in dispute that the applicant had been granted a WWCCC on or about 10 September 2013. The WWCCC application was granted at that time as there was no information before the respondent which suggested that the applicant posed a risk to the safety of children.

39. The applicant had been employed, since January 2007, as Assistant Minister at a church in New South Wales. In or around late November 2013, the applicant was offered, and accepted, a further contract as Assistant Pastor, commencing from early 2014 to late December 2019.

40. In late 2016, information was received by the Office of the Children’s Guardian from the NSW Ombudsman that the applicant had been the subject of an investigation by his employer, the church. The investigation related to allegations which were made concerning the applicants sexual assault on his brother over a number of years. The church informed the NSW Ombudsman that it had concluded its investigation and that it was in contact with the NSW Police about the matter.

41. The respondent sent a letter to the applicant on 3 July 2017 informing him that a decision to place an interim bar on his WWCCC had be made. A risk assessment was conducted by the respondent and on 22 March 2018 it was determined that the applicant posed a risk to the safety of children and his WWCCC was cancelled pursuant to section 23 of the Act.

42. On 9 April 2018, the applicant made application to the Tribunal seeking an order to set aside the decision of the respondent.

Applicant’s Evidence at Hearing

43. In evidence in chief, the applicant adopted his statement filed 17 May 2018 (Exhibit A1) and made some small amendments through his counsel, absent objection.

44. The applicant said that he grew up in a loving and very stable family. His parents are conservative Christians whom he has a strong relationship with. His memories of home are positive.

45. He describes a positive and close relationship with his sister.

46. The relationship with his younger brother is described as being “now non-existent and has been for some years since about 2005 - 2006”. He puts this down to distance, personality differences and his poor behaviour as a brother. He describes his behaviour towards his brother as being “scornful and dismissive”.

47. The applicant sets out a lengthy history of his failed relationship with is first wife with whom he fathered three children. He has since divorced and is now remarried and has fathered another child with his second wife.

48. The applicant states that he was contacted by an investigator from the church in early 2015 concerning allegations made by his ex-wife that he had told her during their marriage that he sexually abused his younger brother. In January 2016, the applicant participated in an interview with the investigator. He refused to participate in a further interview in August 2017 concerning allegations also made by his ex-wife that he had sexually abused his son.

49. The applicant denies a number of allegations contained in Department of Family and Community Service (FACS) records of abuse to children including: grabbing his child around the throat; over disciplining his children; throttling a child; grabbing his son around the neck; being physically abusive and hitting his children with a wooden spoon at the age of 14.

50. The applicant has completed “Breaking the Silence” training with his church and has sought counselling for his desire to view pornography.

51. The result of not having a WWCCC means that the applicant can no longer practise as a Minister of Religion in his church.

52. Absent objection, Mr Fogarty led a small amount of further evidence in chief. The applicant said he did not recall bringing up the subject of R marbles (rude marbles - a game he played with his younger brother which involved sexual behaviour) in the context of being with his cousins. He agreed that his cousins lived nearby when his family lived in Port Macquarie. He said that he was certain the topic of R Marbles did not come up in conversation because his aunt and uncle and his parents had ‘a huge falling out within a year and a half of us moving to Port Macquarie and from that point on we didn’t have contact with those cousins even though they were around the corner, it was very minimal.’

53. The applicant believed that he and his family first moved to Port Macquarie in about 1985 when he was 10 turning 11.

54. The applicant said the following in relation to a question concerning whether he recalled an allegation made by his brother concerning a time when the applicant threatened his mother and sister with a knife:

‘I don’t have a memory of that … I spoke to my mother about that a while ago and she said she recalls that, she remembers that, something about me having a knife and being angry and hitting it into a chair, something along those lines. I don’t remember that myself but I’ve got no reason to disbelieve my mum.’

55. The applicant further said that he has had limited contact with his brother in the last 25 years, which included going to his home for dinner and participating in a combined family holiday.

Applicant’s evidence under Cross Examination

56. In cross-examination the applicant was asked about the allegations that led to the cancellation of his WWCCC and, in particular, the game rude marbles (or R marbles). He was asked about the specifics in terms of allegations he admitted to in the interview with church’s investigation. He said:

‘I admit to having played a game of what I called Rude Marbles with my younger brother and during that I coerced him into touching - me touching his penis and I recall having placed his penis into my mouth. I also admit to having shown him pornographic material.’

57. When asked if there was anything else he admitted to, he said ‘being a jerk of a brother in general’. When cross-examined over the use of the words ‘that I coerced him into touching me’ he replied:

‘I suggested to him that that would be something that we could do or a fun thing to do, something along those lines so. So I’m saying that I coerced him because I’m aware certainly now, I wasn’t then, but certainly of the power that I had as an older brother and the fact that he was unaware of really the nature of what was happening.’

58. The applicant admitted that his brother had very little power in this situation and that he had not disclosed these admissions either in his statement in evidence in chief, in the statement to the investigator who made enquiries concerning his brother’s allegations at the behest of the Church, or indeed in oral evidence before cross-examination commenced during this hearing.

Our analysis of the applicant’s evidence

59. We find that the applicant had an unreliable memory in terms of certain things alleged by his brother. He agreed that he and his brother played a game of marbles. However, he denied that it was the rules of the game of marbles that it was played out in a sexual way. Despite admitting that he coerced his brother into touching his penis and vice versa. The applicant specifically denied that he had done anything that related to his brother’s anus, or indeed required his brother to do something with his anus. Following many questions asked of the applicant by the Church’s investigator in relation to matters involving sexual activity with his brother involving each other’s anus, the applicant said he had no recollection of such events. The applicant was cross-examined extensively in relation to his memory in this regard. When asked by Counsel for the respondent as to whether he simply had no recollection of the events occurring, or if he was saying that it did not happen, the applicant said that it did not happen. Particularly, he said:

‘That’s because I would have a very clear recollection of what did happen, something like putting his penis into my mouth, I remember that very clearly and if I had done something with his anus that would also be something that I would think I would remember very clearly.’

60. The cross-examination went on to explore a number of other incidences involving the insertion of a finger into the winner of the game’s anus, a pen into the winner of the game’s anus and the insertion of the applicant’s penis into his brother’s anus. The applicant was cross-examined as to whether he did not believe that the incident involving him placing his penis into his brother’s anus occurred or whether he said that it did not occur. Indeed, at question 56 of the applicant’s statement that he gave to the investigator for the Church the following exchange took place:

‘Q56:   [Your brother] recalls an incident where he believes you may have inserted or attempted to insert your penis into his anus. Do you wish to make any comment about that?

A:   Absolutely not. What I am saying there is not that I absolutely don’t want to make a comment, I absolutely don’t recall that and I don’t believe that happened at all.

Q57:   The incident he recalls is that he was bent over and that you put something warm into his anus and he thought it was your penis. He stated that he asked you what it was but you didn’t answer him. Do you wish to make a comment about that?

A:   I have no recollection of that, no.

Q58:   [Your brother] recalls one occasion when you tied him up with the waist cord from your board shorts, tied up his wrists. Do you wish to make any comment about that?

A:   I’ve heard that allegation and I don’t recall that either.’

61. The applicant goes on to state that he has no recollection in relation to allegations his brother made that he was forced to watch him masturbate and ejaculate. Likewise, the applicant had no recollection in the statement he gave to the Church’s investigator that he kept some lubricant in a black film canister in his room. In that regard the following exchange took place:

‘Q63:   [Your brother] recalls that you kept some lubricant in a black film canister in your room. Do you wish to make any comment about that?

A:   No. I don’t recall that.’

62. When cross-examined in relation to question 63 and the film canister containing lubricant the following exchange took place between the applicant and Counsel for the respondent:

‘Q   Q63 [Your brother] recalls that you kept some lubricant in a black film canister in your room do you wish to make any comment about that?

A:   No I don’t recall that either.

…

A:   I thought through the film canister and I did recall that I did keep a film canister in my bedside chest and that had Vaseline in it for the purposes of masturbating.

Q:   I see so that part in fact was true in terms of keeping the canister?

A:   That’s true yes.

Q:   So it’s not quite true to say then that things didn’t happen if you didn’t recall them because here you said I didn’t recall that and now you have recalled that?

A:   That’s a very different thing, it’s a very different thing, it’s a very different thing keeping a canister of something in your bedside chest compared to anally intruding your brother, they’re very different things.’

63. We do not accept the applicant’s explanation for him now recalling the film canister containing lubricant and not the anal penetration of his brother. Whilst we are not suggesting he is telling untruths his unreliable memory reduces the weight we to attach to his evidence about the game R Marbles and the conduct towards his brother.

64. The cross-examination went on to assert that the applicant had a selective memory when it came to matters which involve circumstances where allegations involved conduct and behaviours that might be regarded as being wrong and that which have a lesser implication of right or wrong. In this regard, the applicant also had an unreliable memory as to when the sexualised behaviour against his brother commenced and finished. He was cross-examined in relation to the statement he gave to the Church’s investigator on this point. The following question was put to the applicant by the investigator:

‘Q   It’s been alleged that when [your brother] was a child you played a game with him involving marbles that involved a number of sexual acts as part of that game. Do you wish to make any comment about that?

A   Yeah, there’s certainly yeah, there’s certainly some truth to that. My memory is hazy, it’s a long time ago, but I do remember the room we were in and we had like a lounge room, a more formal lounge room, and it was in that room in the afternoon and we were playing marbles. We both had our little mesh bag of marbles and during the game I don’t know how I would have worded it, but it’s certainly my suggestion that we sort of touch each other. So my recollection of that is that we touched each other’s penises and I at one point placed his penis into my mouth.’

65. In cross-examination the following exchange took place:

‘Q   You would agree with me wouldn’t you, that your answer to that question was which is the first one that [the investigator] really put to you about this was that you were suggesting that it happened once. Correct?

A   No.

Q   No?

A   No. I say that I remember an occasion, but I don’t see where I’ve suggested that it only happened once.

Q   Let’s go to page 150 and to question 75.

A   Um.

Q   The question is, ‘You had recalled the marbles being called R marbles or did you sometimes call them rude marbles?’ You say, ‘Yeah I think we called them rude marbles. I’m not sure if we called it R marbles’.

A   Um.

Q   Question 76, ‘How did you did that name come about?’ Your answer is:

‘I don’t remember, I think that happened. I’ve only got a memory it happened once, but it probably happened twice and the reason I think that is because I think after the first time, and I think it was the name I gave it, I think I said something to him like, ‘Do you want to play R marbles or do you want to play rude marbles’, something like that.’

A   Um.

Q   Can I put to you essentially that you had picked up, that you were being asked about how you came to know the name came about and it seems you picked up on the fact that [the investigator] was implying that this game must have occurred more than once for it to have its own name?

A   Right.

Q   So you gave the answer that you did in question 75 saying, ‘It probably happened twice’?

A   Um.

Q   Would you agree with that?

A   I agree that that’s what I said, yes.

Q   Let’s go to question 84 over on page 151.

A   Um.

Q   The question is well simply [your brother] has been very clear that this incidence in fact occurred over a period of years and occurred on a number of occasions. His belief is that you were able to establish some sort of control over him by shifting the blame and basically insinuating that he was going on insisting that what was going on was his fault.

Your answer is ‘right, no, for a start it didn’t happen over a period of years. There was a couple of incidents. It may have been 3.’

Q   So now we’ve moved from it may have happened twice to 3 times, yes?

A   Well what I’m trying to do is give as much room for there being the possibility that there was more than that one time that I remember, but I very clearly remember there was no pattern of this and this didn’t happen over a long period of time.’

66. The applicant, following a short period of cross-examination in this regard, ultimately said ‘a lot of it is hazy’ referring to his memory.

67. Cross-examination as to the reliability of the applicant’s memory continued:

‘Q   Going back to the answers about not recollecting, it’s quite possible that things could have occurred that you haven’t remembered. Correct?

A   Not of the sort of nature that’s been alleged and not of a pattern that continues over years certainly.

Q   I’m going to put to you that you were tailoring your evidence and in fact these incidents occurred over a period of 3 years. What do you say to that?

A   I deny that, that’s not true.’

68. At questions 84 and 85 of the statement the applicant gave to the Church investigator he provided the following answer in relation to the frequency of the sexual behaviours:

‘… for a start, it didn’t happen over a period of years. There was a couple of incidents, it may have been 3, within a period of maybe a couple of months something like that. It wasn’t an ongoing thing.’

69. The applicant maintained his evidence that the game of R marbles occurred in or about 1985 when he was in Year 7 at school and his brother was approximately 7 years of age. His evidence is totally inconsistent with that of his brother.

70. We do not accept that the applicant has a reliable memory about the game of R marbles, when it began or when it ceased or what the game involved. For the reasons set out below, we prefer the evidence of the applicant’s brother in this regard.

The Applicant’s Son’s Allegations

71. The applicant’s son alleges that he showered with his father when he was about 9 or 10 years of age. He said his father pointed and laughed at his penis. The applicant does not recall having showered with him when he was 9 or 10 years of age.

72. However, he does not deny that it is possible that he did shower with him. He has no recollection of pointing at his son’s penis and laughing.

73. We make a positive that the applicant showered with his son which is set out below under the heading ‘The Applicant’s Son’s Allegations’.

Allegations Contained in Reports Received from the Department of Family and Community Services.

74. The applicant admitted smacking his children very sparingly and only up until the time in which they were approximately 10 years of age. The applicant admitted that the smacking could have on the odd occasion involved a wooden spoon other than a hand until they were too old.

75. The applicant denied allegations of grabbing of his children by the throat or grabbing his children by the neck. He gave evidence that he believed his methods of discipline were appropriate in the circumstances. Despite cross examination about these matters, we are not able to find, on the balance of probabilities, that the events occurred - (See our conclusion below concerning the FACS allegations).

Evidence of the Applicant’s Mother

76. The applicant’s mother gave evidence that the applicant had somewhat of a bad attitude as a teenager and was not much fun to be around. When the family moved to the North Coast of New South Wales he was bullied by children at his new school. He repeated the bulling behaviour at home against his siblings. She said there were some arguments, at times, between the applicant and his father.

77. The applicant’s mother in cross-examination, and to some extent in evidence in chief, said she did not believe the incidents occurred as alleged by her younger son. Indeed she had difficulty reciting the allegations being made in her evidence despite having only read the statement of her younger son on the day before the hearing. She denied being told about the allegations by her younger son when he was 16 years of age. The first memory she had with regard to the abuse was when her younger son told her and her husband in November 2008. She said the issue arose again in 2015 when the applicant’s brother had been contacted by the applicant’s ex-wife. She said that specifics were asked of her younger son concerning the abuse and he replied that he was raped by his brother.

76. It was not until reading her younger sons statement immediately prior to the hearing that she became fully acquainted with the allegations of abuse that were being made. She said that the applicant admitted to her there were things that happened between the two boys but they were consensual. The applicant told her that “they played with each other’s testicles”. She said she believed in 2015 that the extent of the allegations related to genital fondling.

77. Critically, in cross-examination the applicant’s mother gave the following evidence:

“Q:   Do you accept that any of the things that have been described happened?

A:   If [the applicant] has admitted to things then I would believe that. I think I – yes, if the [applicant] has admitted to that, I would believe that.”

80. The applicant’s mother said she did not believe the allegations made by her younger son, apart from the game of R marbles taking place and some genital fondling. It was only when the applicant admitted more involved sexual abuse that she was willing to accept the truth of the allegations. This included, the applicant receiving this brothers penis in his mouth, genital fondling, showing his younger brother pornography and touching of each other’s penises.

81. Later in cross-examination the applicant’s mother was questioned about her reasoning for not believing the allegations made by her younger son against the applicant. She said that she based he refusal to accept the allegations as being true on the behaviour of both of her sons during their younger years and adult years. She said they always got on well and she never sensed any tension between them. She relied on photographs and memories in forming her view that the allegations being made could not be true.

82. However, in her statement she says that her younger son in June 2015 said he hated the applicant and would like to murder him. During cross-examination, she was asked whether this was a dramatic change in her younger son’s behaviour and attitude towards the applicant to which she agreed. She said the reason for this change in behaviour or attitude was because her younger son was jealous of the fact that the applicant had succeeded and he had failed, referring to him failing to pass a RAAF pilot course. She also believed that her younger son was jealous of the fact that the applicant had moved closer to her and her husband and spent more time with the family. At the conclusion of cross-examination, the applicant’s mother said:

“Q:   And so what you believe are the things that did happen?

A:   Exactly what [the applicant] said had happened.

Q:   So what [the applicant] says then it’s the truth?

A:   I believe so.”

83. It is clear in our minds that the applicant’s mother is somewhat blindly accepting the applicant’s version of events as being truthful. She had denied her younger sons allegations outright only up until the time that the applicant made an admission. Her reasoning for not believing her younger son’s evidence is fraught in our minds. The explanation of her younger son being jealous of the applicant is unusual in the context of this matter. This aspect was not put to the applicant’s younger brother in cross examination and we reject it. We place little weight on her evidence.

84. It is uncontroversial that the applicant’s mother did not witness any of the allegations which have been raised against the applicant by his brother. This is despite them potentially being at home at the time at which the applicant assaulted his brother.

Evidence of the applicant’s sister

85. The applicant’s sister said the applicant had a bad attitude as a teenager and argued with their father. They also became physical at times. He would sneak out of home at night and he smoked. She described the attitude of the applicant in his teenage years as being moody and withdrawn. Conflict within the family increased as a result of the applicant’s behaviour. She recalls in about 2015 her parents spoke to her regarding allegations of sexual abuse concerning the applicant and her younger brother and an incident where the applicant tied him up with a board short cord and her younger brother chipping his tooth.

86. Her personal opinion in 2015, despite the allegations made by her younger brother, was, that the alleged events did not happen. She based this opinion on her memories of their childhood. On 26 November 2017, the applicant’s brother and sister had a long conversation concerning the allegations which are the subject of these proceedings.

87. In her statement, she says that her younger brother referred to an investigation concerning the applicant and that the applicant admitted to having raped his younger brother. She said that her younger brother was unsure about how old he and the applicant were at the time they played the game of R marbles but believed it was around the age of puberty.

88. When asked by Mr Fogerty if there was any other reason why her younger brother may have been untruthful, she suggested that it may be because in about 2001 he failed a course to become a RAAF pilot. This was never put to her younger brother in cross examination. Procedural fairness dictates that it should have been. We reject the explanation.

89. In cross-examination, she denied that the extent of the sexual abuse alleged by her younger brother could have occurred. She said she did not witness it and that if it occurred, she would have become aware of it given that she was in the home at the same time the sexual abuse is said to have occurred. Therefore, she does not believe that the allegations are true. She agreed that it was easier to believe that a person is a liar than a sexual predator.

90. We have applied little weight to the evidence of the applicant’s sister. Her explanation about the conduct involving her two brothers not occurring does not leave open the fact that she may simply not have witnessed it. We do not accept just because she was at home at the time it occurred and she did not see it, that it did occur.

Evidence of the applicant’s employer

91. The applicant arranged for a Senior Pastor of the church where he was employed to give evidence. The Senior Pastor said has known the applicant since November 2006. In early 2016, the applicant gave notice to the church that he was resigning to take up employment with a difference church. However, in July 2017, the applicant was suspended from all duties due to an interim bar being placed in his WWCCC.

92. In 2015, the Senior Pastor became aware of what the applicant described to him as inappropriate sexual play involving the applicant’s brother. A meeting took place between the applicant, his parents and the Senior Pastor at his home. He recalls being told about one incident when the applicant was about 11 or 12 years of age involving his brother. In cross-examination, he could not recall specifically what the sexual play involved but believed it to be touching each other and sexual acts. He said he believed he was told about it at the meeting. The Senior Pastor did not report this incident as he says it did not involve the applicant carrying out his role as a pastor, and, that it happened 30 years ago when the applicant was a child.

93. Ms McDonald put all of the allegations made by the applicant’s brother and those which the applicant had admitted to the Senior Pastor. After doing so, he maintained his evidence in chief that he would have no concern leaving his children alone with the applicant even with the knowledge of the allegations which were put to him. He said that he knows who the applicant is as a person now and would be comfortable leaving children with him in an unsupervised environment.

94. We had no reason to not accept the Senior Pastor’s evidence.

Expert evidence of Dr K Seidler

95. The applicant’s expert Dr Seidler gave evidence at the hearing and provided an expert report on the applicant’s risk to children.

96. In cross-examination the expert was asked about the ability to administer any actuarial risk assessment tools such as the risk for sexual violence protocol (RSVP) or static-99. Dr Seidler said that due to the applicant not having been charged with any sexual offence, or indeed convicted, that the tests were unable to be applied.

97. The expert found that the applicant did not present with notable risks concerning sexual deviancy per se. She states that he did not endorse a history of entrenched deviant interests sexually, and did not report sexual self-regulation difficulties, a history of hypersexuality or the use of sex as an emotional coping strategy. The expert concludes:

‘It is noted that [the applicant] had some early sexual experimentation with a male but this in and of itself is not necessarily unusual or indicative of subsequent sexual offence risk. … to this end, other than the two sets of allegations that gave rise to the present assessment, there are no specific concerns in this case noted with respect to sexual abuse. Moreover, the allegations are historical and even if true, would suggest that [the applicant] engaged in acts of sexual abuse within his family unit and very sporadically. To this end, it is not my view that, even if the alleged acts of sexual abuse are true, that that [sic] [the applicant] presents as a preferential child sexual offender. Rather, the abusive behaviour would best be explained within the context of situational factors, including immaturity, a difficult sibling relationship and perhaps clumsy parenting behaviour associated with a difficult marital context.’

98. In relation to concerns about exposing children to aggression as noted in records of Family and Community Services (FACS), the expert states as follows:

‘I did not conduct a separate risk assessment for violence in this case, as there is no apparent history of such conduct and [the applicant] did not report a pattern of aggressive behaviour more generally. Rather, it is in my opinion that the behavioural concerns that gave rise to these notifications occurred within the context of a particular situation that resulted in significant tension and discord in the familial home, as well as psychological stress for [the applicant].’

99. The expert goes on to conclude that there is no evidence of current or recent risks in relation to children and young people which would justify withholding a WWCCC for the applicant.

100. In further cross-examination the expert was asked about the matters referred to in paragraph 5 of her report and the administration of one tests being the PAI. The reasoning as to why the PAI assessment was used was that it provided a good objective snapshot of some of the things that the expert would expect to be a concern if someone was sexually abusive. The other usual actuarial measures which are often applied in terms of assessing risk of sexual abuse are said to not be applicable when someone has not been charged or convicted with a sexual offence.

101. The expert was asked whether the applicant’s failure to admit the allegations made by his brother would indicate that he was a risk today to children. The expert said there is no clear relationship between denial and risk. She went on to say that someone who was in denial is actually at no greater risk that someone who is not.

102. When asked about the activity between the applicant and his brother she said:

“Certainly in relation to the alleged sexual behaviour between [the applicant] and his brother, there was absolutely a level of concern which would certainly give me reason to be concerned in a general sense about that behaviour, but that risk is attenuated by the fact that it was 30-odd years ago, that that was in a particular context at a particular time in the applicant’s life. So, no, it doesn’t increase my risk in terms – sorry, my concern in terms of generalised risk to children and young people”

103. Dr Seidler places great emphasis on the historical nature of the allegations concerning the applicant and his brother in determining that he is not now a risk to children.

104. Despite a robust cross-examination, Dr Seidler was unmoved from her conclusion that the applicant does not pose a risk to the safety of children.

105. We accept and we have taken into consideration the opinion of Dr Seidler in coming to our determination. In doing so, we have not relied solely on her opinion in deciding whether the applicant poses a risk to children. We have considered the decision of DAR v Children’s Guardian [2018] NSWSC 942 at [53] in that regard.

Evidence of the applicant’s brother

106. The applicant’s brother said in his evidence in chief, that he and the applicant played a game called R marbles (Rude Marbles). He described it as a normal game of marbles, but, the winner of the game got to choose a sex act that the loser would have to do to the winner. He said that this game started when he was about 8 or 9 years of age and ended when he was in year 7 at high school. He said that he had a clear recollection of when it all ended. He recalls seeing his brother across the quadrangle at school and had a thought about some abuse that had occurred the night before. He said he was about 12 years of age and that the applicant was about 17 years.

107. He went on to explain that the game involved one person placing things up the others anus, fondling or licking things (including the anus). The objects included marbles, fingers and a pen. He described one occasion when the applicant inserted something warm and wet into his anus, which, he believed could have been the applicant’s penis as it felt “different”. Other incidents involved the applicant making his brother watch him masturbate until he ejaculated and looking at pornography.

108. The applicant’s brother said he did not play the game willingly. He felt pressured into playing the game in fear of the applicant telling his parents and other people. He said he felt “stuck” because he could not tell anyone and he could not stop it from happening as his brother would tell others.

109. He also alleges that the applicant tied him up with a cord from a pair of board shorts. He chipped his teeth in an attempt to free himself with the use of a pocket knife.

110. He said that the game or R marbles has caused him to have relationship difficulties where he struggles with intimacy and goes for periods where he does not have sex.

111. During the years of abuse, the applicant’s brother recalled one event where the applicant referred to playing R marbles in a social setting in the presence of relatives. This caused the applicant’s brother to be paralysed with fear that he was going to “blurt out” what he had done.

112. The applicant’s brothers first recollection of when he spoke to someone about the abuse occurred when he was approximately 16 years of age. He told his mother that the applicant had engaged in conduct against him of a “sexual nature”. His mother called his father in the room and allegedly said to him that the applicant has molested his younger brother. It was never spoken about until some years later. We accept his evidence in this regard and have placed little weight on the evidence of his mother for the reasons as set out above. The applicant’s father did not gives evidence.

113. In 2008, the applicant’s brother again raised the issues he mentioned when he was 16 with his parents. He said that his parents responded in a way that indicated it was the first time they were hearing of the abuse. About one year later in 2009, he said he again raised the issue with his parents. He became frustrated at his parents denial and said to his father “Really? Did your brother put his penis up your bottom, too?”. His parents said that they thought the discussion a year ago related to bullying but nothing sexual in nature. We accept this evidence.

114. On or about 27 January 2015, the applicant sent his brother a letter annexure “A” to his statement. The letter admitted to engaging in actions the applicant said he was deeply ashamed of. Following receipt of the letter the applicant’s brother became aware that the applicants ex-wife had made complaints to the applicant’s employer, the church, and as a result the church was going to investigate the allegations of abuse concerning him. He felt uncomfortable about how things were unfolding and he went to the Queensland Police to make a report. He was not wanting to pursue charges, he said he wanted a record made of the abuse. The police said he would be required to participate in a recorded interview. The applicant’s brother did not proceed. He said he did not want to get dragged through a court case. He just wanted to move on with his life. We accept his explanation in this regard.

115. He concluded his evidence in chief by stating that the abuse has caused intimacy and relationship difficulties, it has fractured the relationship with his family, particularly his parents and sister. When asked if he believed his brother was a risk to children, he said he hoped that the tribunal would find that he is not, however, he would not let his own children near him because he has no evidence that he is no longer a risk to children. He also commented that the question was difficult to answer because he has not had much of a relationship with his brother for about 25 years.

116. In cross examination, the applicant’s brother said a telephone call took place between his wife and the applicant’s ex-wife which was four to six days after he received his brother’s letter. He also made a telephone call to the applicant’s ex-wife and he was emphatic in his evidence that when he spoke to her by telephone. He said she did not encourage him to make a complaint to the church about the abuse. He further said he was told that the church investigator would contact him. The applicant’s ex-wife made it clear in her conversation with him that she wanted the applicant charged.

117. He was cross examined about when the R marbles game started and ended. Whilst he believed he was about 8 or 9 years of age, he could not be certain. Despite being cross-examined, the applicant’s brother remained consistent in his evidence that the abuse stopped when he was in year 7 and the applicant was in year 12. He was adamant that the abuse occurred on more than two to three occasions. He gave no evidence in chief, or in cross examination concerning on how many occasions it took place. He denied that the abuse only took place in the lounge room of the home and said it was not witnessed by anyone.

118. He was asked whether he was a willing participant in the game of R marbles. In the investigation report record of interview, and in cross-examination he said that he was. However, he also said in his evidence in chief that he felt compelled to play in the fear that the applicant would reveal the nature of the game to others.

119. He denied that he did not tell his parents that the abuse was sexual when he was 16 years of age. He also denied that he told his parents the applicant only bullied him. We accept his evidence in this regard. In relation to the 2008 conversation he had with his parents, he agreed that he did not go into graphic detail about the abuse. He was emphatic that he made it clear the abuse was of a sexual nature. He could not recall the specific nature of the conversation in detail. He said in relation to the 2009 conversation with his parents he told them “quite graphic detail” about the abuse including insertion of objects into his anus. He had another conversation in 2015 with his parents on facetime about the abuse. He was becoming quite frustrated with his parents because they said this was the first they were hearing of it. He said the only time he used the work “rape” was with his sister and not his parents. We accept his evidence.

120. We reject the applicant’s submissions that the allegations made by his younger brother are “tenuous at best, dangerous and completely unreliable at worst”.

Applicant’s submission

121. The applicant filed written submissions on 9 July 2008 and 20 August 2018. Pursuant to section 63 of the ADR Act the applicants requests that the tribunal decide the correct and preferable decision in respect of the cancellation of his WWCCC having regard to all of the material before it.

121. The applicant says that he does not now, nor does he in the future pose a risk to the safety of children. It is submitted that a reasonable person, being aware of all the circumstances, would allow his or her child to have direct contact with the applicant that was not directly supervised by another person with the applicant was engaged in any child-related work. He seeks an order that the decision of the respondent be set aside.

122. The applicant accepts the summary provided by the respondent as to the risk assessment, cancellation process and the cause of the cancellation of the WWCCC which are:

a.   The allegations that the applicant engaged in sexual misconduct with his younger brother when they were both minors at some stage between 1988 and 1991, his brother being about 5 years of age; and

b.   The allegations concerning the applicant engaging in inappropriate/sexualised behaviour with his son between 2008 and 2010.

124. The applicant accepts the principles of law as set out in the respondent’s apart from some brief qualifications.

125. The applicant, prior to becoming aware that his brother was not giving evidence, relied on submissions concerning a cautious approach to be taken in determining serious allegations without the complainant being available to give evidence. This was ultimately not an issue given that the applicant’s brother gave evidence, as did his son.

126. The applicant urges the Tribunal to take into consideration the approach by Davies J in Children’s Guardian v CKF [2017] NSWSC 893 at [56] as it relates to a “lingering doubt”, not to count against the defendant but be a matter to be weighed up in considering all of the evidence. We have done so.

127. Reference is made to the decision in CKF v Children’s Guardian [2017] NSWCATD 6 and the decision which was affirmed on appeal in Children’s Guardian v CFK [2017] NSWSC 893. The submission in so far as the Tribunal being unable to reach a positive finding either way as to the abuse is not applicable in this matter as both the applicant’s brother and his son gave evidence.

128. Submissions are made about the Tribunal not drawing any adverse inference against the applicant not having disclosed matters to Dr Seidler which may have had the effect of self-incrimination. We have not done so.

The allegations concerning the applicant’s brother – R marbles (Rude Marbles)

129. The applicant admits that he that he and his brother played a game called R marbles, the name of which he made up. He believes there were up to three incidents occurring maybe over a couple of months which occurred in the family lounge room in the absence of others. The incidents occurred when the applicant was between the ages of 11 to 13 and his brother was between 6 to 8 years of age (1985 – 1988). The incidents involved touching each other’s penises and at one point, the applicant receiving his brother’s penis in his mouth. Pornographic material was also shown by the applicant to his brother. He denies all other allegations made by his brother, including the insertion of his penis, marbles, fingers and other objects into each other’s anuses.

130. The applicant submits, which was not challenged during the hearing, that his younger brother was not the instigator of complaints concerning the game of R marbles and the abuse which ensued. The submissions refer to the complaints being agitated by the applicant’s ex-wife during protracted matrimonial difficulties. The applicant concludes that the allegations made by the applicant’s brother are “tenuous at best, dangerous and completely unreliable at worst”. It is submitted that the Tribunal could not be positively satisfied that the allegations made by the applicant’s brother can be made out on the evidence to the requisite standard of proof and that any lingering or residual doubt of suspicion could not “count against” the applicant.

131. The applicant references a recommendation to the NSW Ombudsman from the solicitors acting on behalf of the church, that the findings of its investigator was that the applicant ‘molested’ his brother between 1988 to 1991 when he was aged 14 and 17 and his brother was aged 9 and 12. The solicitors submit that this would not enable a finding that the applicant poses a risk to the safety children.

132. The applicant submits that the best evidence concerning the allegations between the applicant and his brother is derived from them both. We agree and we prefer the evidence of the applicant’s brother.

Submissions as to the allegations concerning the applicant’s brother

133. It is submitted that the Tribunal would find the following (para 29 of the applicant’s submissions):

a.   The conduct to which the applicant admits occurred in around 1988 to 1991, at a time that when the applicant and his brother were both minor, between the age of 14 to 17 years and between 9 and 12 years respectively;

b.   No other part of the allegations made occurred (apart from what the applicant admits to);

c.   On 31 January 2015, the applicant’s brother made a complaint to Queensland Police on 31 January 2015, some 17 days before the allegations were raised with the church investigator by the applicant’s ex-wife and just after the applicant’s brother and his wife were contacted also by the applicant’s ex-wife;

d.   The applicant’s brother instructed the police not to pursue the allegations on 14 April 2015;

e.   The applicant’s brother was not the complainant to the church investigator, rather it was the applicant’s ex-wife who at the time felt bullied by the applicant and the church;

f.   For at least 25 years the applicant’s brother had made no formal complaint to any public authority and only did so after being contacted by the applicant’s ex-wife; and

g.   The applicant’s brother was drawn into the church investigation at the insistence of the applicant’s ex-wife.

Allegations concerning the applicant’s son

134. The applicant submits that most of that allegations raised by his ex-wife are false. These allegations include:

1. The applicant tickling his son and putting his hands down his sons pants and slapping his bottom and folding his penis;

2. Forcing his son to shower with him and pointing and laughing at his penis;

135. The submissions refer to the text sent by the applicant’s son to his mother in 2016 (when the applicant’s son was 17 years of age) where he denies that he was sexually abused by his father in any way.

136. Various other criticisms are made concerning the accuracy and reliability of the allegations which have been made, particularly by the applicant’s ex-wife in relation to the applicant’s son.

137. The investigation undertaken by the church did not find any of the allegations substantiated. The allegations concerning the applicant showering with his son in 2008 and 2009 and laughing at his penis were not reportable conduct.

138. It is submitted that the applicant denied these allegations, apart from tickling his son, as he did with all his children, and perhaps showering with is son, however, he has no recollection of doing so. He denies any contact of a sexual nature with his son.

139. It is further submitted that the evidence of the applicant’s ex-wife is unreliable. Further, the applicant’s son retracted all but one of the complaint’s, that he showered with his father and he laughed at his penis. This aspect, it is submitted would not amount a finding that the applicant is a risk of harm to children.

Evidence of Dr Seidler

140. The Tribunal is urged to find that Dr Seidler is experienced to provide her opinion in this matter. She was cross-examined and her opinion was not shaken. She said that the allegations concerning the applicant’s brother occurred some 30 years ago in a particular context when he was an adolescent. The generalised risk of him now to children is not increased. In conclusion she finds that the applicant does not pose a risk to children. Reference is made to various parts of her opinion, some of which are set out above.

141. The applicant submits that the expert opinion of Dr Seidler is conclusive and unequivocally supports that the applicant does not at this point in time pose a real and appreciable risk to children.

Section 30 of the Act mandatory considerations

142. Submissions have been made by the applicant in relation to each and every matter contained in section 30 of the Act. We have considered these submissions in coming to our decision.

Other matters

143. The applicant submits consideration to the decisions in CHN v Children’s Guardian [2016] NSWCATAD 294 and CQX v Children’s Guardian [2017] NSWCAT 286, are in significant respects analogous to the applicant’s appeal concerning the cancellation of a WWCCC.

144. In conclusion, the applicant submits that the Tribunal should not become too preoccupied and place weight on what happened, or may have happened, when the applicant and his brother were children. Apart from the matters raised against the applicant it is submitted that the applicant presents with an unblemished record. Reference is made to the Tribunal’s role in focusing on the meaning of the concept of “risk” as set out by Button J in Children’s Guardian v CHN [2017] NSWSC 1228 at [77], in summary being, a reference to the possibility that an event may occur in the future. We have considered this.

145. He submits that his past acts would not cause a reasonable person to not allow his or her child to have direct unsupervised contact with him. Further, he says that it is in the public interest to grant a WWCCC to him so as to allow him to continue serving the public in his chosen career being a minister of religion.

146. The applicant said that the decision of the respondent should be set aside. He does not now, nor in the future, pose a real and appreciable risk to children.

Respondent’s Submissions

147. The respondent relies upon written submissions filed 28 June 2018 and 15 August 2018.

148. It is submitted that the Tribunal should find that the applicant abused his younger brother when the applicant was between the age of 14 and 17 years and his brother 8 or 9 and 12 years. The abuse included the penetration of the applicant’s anus with certain objects and that such behaviour was inappropriate and abusive. The applicant was domineering and coercive in his actions which has left a psychological hold over his brother.

149. The applicant’s conduct towards his brother was very serious within the meaning of sub-s30(1)(a) of the Act.

150. The applicant’s use of corporeal punishment, which involved smacking his children once a week or once a fortnight before they were 12 years old, using a hand or wooden spoon was inappropriate.

151. The reports made to FACS by the applicant’s ex-wife, some of which are supported by his son, give rise to a lingering doubt as to whether the applicant utilises appropriate methods to discipline a child and suitably protect them from the actions of others.

152. The applicant’s evidence was not frank and forthright, he was evasive, failed to accept responsibility for his actions at all and showed a lack of insight in his actions. The Tribunal should not be satisfied that the applicant has complied with his obligations pursuant to sub-s 27(4) of the Act.

Evidence of the applicant’s brother

153. It is submitted that the applicant’s brother gave clear, convincing, coherent and compelling evidence that he and the applicant engaged in a game called “R-marbles” when he was 8 or 9 years of age until 12 years. The applicant was about 17 years when the game ceased.

154. The game would involve the winner demanding a sex act of the loser. The sex acts included: genital fondling; inserting objects (marbles, fingers and penis) into the others anus; the applicant receiving his brother penis in his mouth; and licking of the anus. On one occasion the applicant’s brother recalls something warm and wet being inserted into his anus.

155. The applicant would also require his brother to watch him masturbate until he ejaculated. Pornographic magazines were shown by the applicant to his brother which has had a longstanding effect on his relationships. He was once tied up with the cord of a board short rope. During his escape, he chipped some of his teeth. The applicant’s brother felt coerced into playing the game of R-marbles and at times became scared and paralysed that his brother would tell others about the game.

The applicant’s evidence

156. The applicant admitted to playing the game of R-marbles. He coerced his brother to touch his penis and vice versa. He recalls his younger brother placing his penis in the applicant’s mouth. He otherwise denied the allegations made by his brother. The applicant admitted that he showed his brother pornographic magazines.

157. The applicant recalls only playing the game at an outside chance of three times. However, he agreed that for the game to have a specific name it must have happened on more than one occasion. The applicant said the games took place when he was in year seven and when his brother was about 7 years of age.

Evidence of the applicant’s mother and sister

158. The respondent submits that the evidence of the applicant’s mother should be given little or no weight. It is submitted that she is totally incapable of accepting the allegations made by her younger son and her opinion is based on her recollections of the behaviour of both sons over years. The respondent suggests her evidence is unreliable given that she did not recall major events, such as being threatened by the applicant with a knife.

159. It is submitted that the only relevant factor arising out of her evidence is whether the applicant’s brother disclosed the alleged sexual assault to his parents at the age of 16 years. The respondent submits that the applicant’s brothers evidence should be accepted in this regard.

160. The respondent says that the Tribunal should find that the applicant’s sister also does not accept the allegations made by her younger brother. She, like her mother suggest that the applicant’s brother has made up the allegations due to him being jealous of the applicant and after he failed to qualify as RAAF pilot. However, it is submitted that the Tribunal should be cautious in accepting this explanation as it was not put to the applicant’s brother during cross-examination.

Evidence of the applicant’s brother

161. It is submitted that the Tribunal should prefer the evidence of the applicant’s brother. It should make a finding that the allegations occurred as alleged by him. The applicant is said to have been evasive in his evidence and tended to minimise incidents of sexual abuse. In cross-examination he refuted allegations made by his brother on the basis that he had “no recollection” of events and would “very clearly remember” others. It is submitted that he would not categorically deny that the events occurred.

162. On the other hand, the applicant’s brother is said to have given his evidence with impartiality and often, against interest. He had no reason to fabricate the manner of the sexual abuse he experienced, nor the length of time over which that abuse occurred, whereas the applicant has a keen interest in the Tribunal finding there were fewer instances of sexual abuse.

163. The respondent suggests that the cross-examination of the applicant’s brother was less focused on the allegations he makes of abuse but rather if his complaints were a ‘recent invention’, borne out of jealousy towards the applicant (which was never put to him in cross examination). Some of the focus of cross-examination related to whether the applicant’s brother in not pursuing complaints or charges affected the credibility of his allegations concerning the abuse. The respondent sets out the reasons why the applicant’s brothers evidence should be accepted in this regard.

164. In conclusion, the respondent submits that the applicant’s brother was a truthful, careful and honest witness that gave a compelling account about the events of which he complains.

Findings of the Church Investigation

165. The respondent submits that the findings by the church investigator, namely that the applicant sexually abused his brother over a 3 year period commencing when the applicant’s brother was about 9 years of age should provide further evidence for the Tribunal in accepting the allegations made by the applicant’s brother.

The applicant’s sons allegations

166. It is submitted that the only allegation the applicant’s son recalls as having occurred was the one where he showered with this father when he was 9 or 10 years old. He said his father pointed and laughed at his penis. The respondent accepts that in circumstances where the applicant’s son has retraced part of his complaint the Tribunal could not make a positive finding of a sexual incident between him and his father. We agree.

The department of family and community services complaints

167. It is submitted that the applicant admitted to smacking his children very sparingly up until they were aged 10 years. He may have used a hand or wooden spoon when they were older. The respondent submits that the applicant’s son gave evidence that he was smacked by hand once a week or once every two weeks until he was about 12 years old.

168. A number of allegations were put to the applicant about further smacking incidents and the applicant said they could have possibly occurred, but it was doubtful.

169. The respondent submits that the Tribunal should have concern about the methods of discipline used by the applicant towards his children and the lack of protectiveness of them by blaming the difficult relationship between his children and new wife.

Dr Seidler’s evidence

170. Criticism is made of the expert report in so far as the risk assessment undertaken did not include a risk of violence because “he is not violent”. The respondent says this is inconsistent with the evidence of the applicant’s son an matter raised in the FACS reports.

171. The respondent submits that Dr Seidler had some concern or was troubled by the applicant’s coercive conduct towards his brother. It is submitted that Dr Seidler accepted there is no suitable risk assessment tool that may be administered to a subject to arrive at a statistical assessment of risk.

172. The respondent urges the Tribunal in considering whether the applicant poses a risk to children to look not only at the report of Dr Seidler, but all of the evidence and make an independent decision.

Section 30 of the Act mandatory considerations

173. Submissions have been made by the respondent in relation to each and every matter contained in section 30 of the Act. We have considered these submissions in coming to our decision.

174. Accordingly, it is submitted that the respondent’s decision should be upheld. The Tribunal should find that a reasonable person would not allow his or her child to have direct unsupervised contact with him. It is not in the public interest to make an order granting a WWCCC to the applicant.

The Tribunal’s Consideration

Section 30 (1) considerations

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

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

176. The applicant is not a “disqualified person” (see s 18(1) the Act). His clearance was not strictly “refused”; rather, it was cancelled (see ss 8(3)(c) and 13A(1), where the terms “refused” and “cancelled” are used as alternatives).

177. The applicant submits (paragraph 58 of his submissions), that if the allegations to which he admits to concerning his brother are accepted by us, then the allegations are indeed serious. We agree. Not only do we accept the admissions made by the applicant, we also accept the evidence of his brother that the behaviour also involved the insertion of various objects into each other’s anuses. We have taken into consideration, and find, that the sexual behaviour of the applicant towards his brother occurred at a period where he was aged between 14 and 17 years and his brother was 8 or 9 and 12 years. The evidence of Dr Seidler refers to this behaviour as being characterised as a kind of experimental sexual behaviour occurring during adolescent years and when sexual development is occurring alongside puberty (page 24 of the expert report).

176. The applicant says that the seriousness of the offending is mitigated due to the immaturity of the applicant at the time and the fact that the events occurred about 30 years ago.

177. The respondent submits that the exertion of psychological control over the applicant’s brother during the time of the offending conduct, and the use of coercion and threats, speaks against consensual innocent behaviour.

178. We find that the conduct, whilst serious, occurred some twenty seven to thirty years ago when the applicant was indeed a young immature child/adolescent which in our view mitigates the seriousness of the conduct to an extent.

179. The allegations relating to the shower that the applicant had with his son are that his father pointed and laughed at his son’s penis. The respondent accepts that in the circumstances where the applicant’s son has retracted part of his complaint and has provided a plausible explanation as to why he reported the incidents to the police that he does not recall occurring, the Tribunal could not make a positive finding of incidents of a sexual nature occurring between the applicant and his son, with the exception of the incident where the applicant pointed to his son’s penis and laughed at it. We are satisfied on the evidence given by the applicant’s son that an incident where the applicant pointed at his son’s penis and laughed at it occurred during a shower in about 2007 to 2009. Whilst this may be bad parenting, the seriousness of the behaviour is at the lower end.

180. We accept the evidence of the applicant and find that the applicant smacked his children up until the age of about 10 years of age. We do not find that the applicant grabbed his children around the neck and throttled as proven. The allegations in relation to reports of violence to FACS are also in our mind to be considered at the lower end of a scale of seriousness. We do not find a lingering doubt as to whether the applicant utilises appropriate methods to discipline a child and suitably protect them from the actions of others.

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

183. The matters concerning the applicant’s conduct towards his brother are alleged to have occurred 27 to 30 years ago (1988 to 1991). This is a significant factor we have taken into consideration.

184. The conduct giving rise to the allegations concerning the applicant’s son occurred around 8 to 10 years ago in either 2007/2008 or 2008/2009.

185. The conduct giving rise to the allegations concerning the FACS complaints occurred around 7 to 8 years ago in 2010/2011.

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

186. The allegations relating to the conduct involving the applicant’s brother occurred when the applicant was between 14 to 17 years of age. The allegations which relate to the conduct concerning the applicant’s son occurred when the applicant was aged between 34 to 36 years. The allegations which relate to the conduct concerning the FACS complaints occurred when the applicant was aged between 33 to 34 years.

(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.

187. We find that the conduct which relates to allegations concerning the applicant’s brother occurred when his brother was approximately 8-9 to 12 years of age. The allegations concerning the applicant’s son occurred when the applicant’s son was aged between 8 to 10 years of age. Because of their age it is without doubt that both the applicant’s brother and his son were vulnerable. Similar findings are made in relation to the FACS complaints as the applicant’s children would have been aged between 7 to 12 years.

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

188. The applicant is four and a half years older than his brother and approximately 25 years older than his son and other children.

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

189. The applicant clearly knew that the applicant’s brother was a child. In relation to his son, it is uncontroversial that the applicant knew his son was a child.

(g) The person's present age.

190. The applicant was 44 years of age at the time of the hearing

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

191. There is no evidence before the Tribunal that the applicant has any criminal record.

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

192. The applicant relies upon an expert report of Dr Seidler. In particular we have taken into consideration the conclusions of the expert at paragraphs 84, 94, 95 and 97 of that report, and her oral evidence, which indicate that the applicant does not pose a risk to children.

193. The respondent submitted that the similarities between the nature of the allegations, and between the victims, are a serious concern. As such, the respondent cannot be satisfied that the matters will not reoccur. We do not accept the respondent’s submissions in this regard. Certainly the allegations of repeated sexualised behaviour prior to the applicant’s son recanting the allegations may have had some slight similarity to the conduct involving the applicant’s brother, although in our view they are very different. However, this is no longer an issue given that the allegations have been recanted.

194. There is no evidence before us which would indicate that the applicant has repeated the behaviours involving his brother over some 27 - 30 years ago. The evidence of Dr Seidler is that the applicant is not a risk to children and unlikely to repeat the behaviours which occurred during adolescence. We accept her evidence. We have also considered all of the other material before us and find that the applicant is very unlikely to repeat his prior offending conduct.

195. However, if any offending behaviour was to occur in the future it is clear from the material before us that the impact on children would be significant.

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

196. The applicant tendered a statement filed 17 May 2018, a Statutory Declaration sworn 7 September 2017 and an employer reference signed on 25 August 2017, together with the expert report of Dr Seidler. The applicant’s mother, sister and a work colleague also gave evidence.

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

197. There is no material obtained under s 36A.

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

198. The respondent refers to the following additional matters:

1. the fact that the applicant admitted he had a troubled youth and early childhood, during which he and his ex-wife used drugs;

2. the admission that the applicant had a homosexual relationship with a boy at high school for 3 years from the age of 13 to 16 years of age and that at that time the applicant said he was ‘petrified’ of girls, he was not a popular teenager and that they were both anxious in relation to females within the context of sexual desire. They experimented sexually with each other which involved mutual masturbation and oral sex but the applicant also said that he had penetrative intercourse with his friend on one occasion;

3. the applicant’s brother’s account that at one stage in the applicant’s early adulthood he threatened his mother and sister with a knife in the kitchen and that he also had a fight with his father;

4. allegations that the applicant’s ex-wife said that he engaged in bullying and domestic violence towards her and that one time he restrained his wife by putting his arms around her and holding her arms to her sides;

5. allegations that the applicant’s son was made to live at a youth refuge for a period for allegedly ingesting ‘weed’;

6. the admitted use of pornography. Allegations that the applicant tacitly admitted to theft of money from his ex-wife;

7. allegations of the applicant’s ex-wife that he had a gambling addiction;

8. reports to FACS of the applicant engaging in violence towards his three children.

199. We have considered these matters in coming to our determination.

The statutory approach

200. As already indicated, the Tribunal must determine whether the applicant poses a risk to the safety of children in the sense of a risk that is greater than the risk of any adult preying on children, taking into account the matters enumerated in s 30(1) of the Act. The term “safety of children” is not defined, but includes the sexual and physical safety of children, and probably also their safety from conduct that is likely to cause psychological or emotional harm (see BVM v Children's Guardian [2016] NSWCATAD 65 at [9]- [15] and [67]; BFX v Children's Guardian [2014] NSWCATAD 115 at [19] to [30]).

201. The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. Like the facts in BKE, certain matters in the current case were not settled, in that the Courts had not been in a position to make any positive findings on the conduct and the applicant.

202. At pars 29 - 33 of BKE the Court observed:

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

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

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

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

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

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

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

33.The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

Further Consideration

203. It is accepted that where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 at p362: see BKE (above) at [33]. That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities. 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. We have based our consideration on all of the evidence given by the applicant and the respondent at hearing (and in documentary form), and for this reason we have set out above some of his evidence at hearing.

Findings

204. We find that the applicant gave his evidence in a frank manner, even though there were, at times, gaps and inconsistencies in his answers. This was particularly so when challenged in cross examination and taken to other evidence.

205. We did not however discern anything deliberately untruthful in his evidence and are satisfied (for the purpose of s-27 (4)) that he has complied with his duty to disclose fully to the Tribunal to the best of his ability at hearing. We do not find that the applicant was deliberately tailoring his evidence to minimise the conduct concerning his brother and to a lesser extent him disciplining his children.

206. Whilst we did not detect any concerns to enable a finding that the applicant was not forthcoming in all of his answers particularly given most of the events occured some 27 - 30 years ago. Similarly, the applicant’s brother has some gaps in his memory recalling events so long ago. However, his evidence in our view was more accurate.

The allegations concerning the applicant’s brother

207. In respect of the serious allegations concerning the applicant’s brother, we make a positive finding on the balance of probabilities that these matters occurred as alleged by the applicant’s brother. We accept his evidence that in addition to the admissions made by the applicant, objects such as pens, fingers and marbles were inserted into each of the applicant’s and his brother’s anuses. We cannot make a positive finding that the applicant inserted his penis into his brother’s anus. However, we accept that the applicant did insert something ‘warm and wet’ into his brother’s anus. As to what that might have been we are unable to make a positive finding. In the majority, we preferred the evidence of the applicant’s brother. That is not to say that we find that the applicant was deliberately not telling the truth. We make that finding because of the conflict in the evidence, the time which has passed since the conduct took place and also given the age of the applicant and his brother at the time of the offending. We find that the applicant’s brother gave convincing evidence as to his recollection of the abuse and made necessary concessions if he did not remember. The applicant’s evidence was sometimes vague particularly during cross-examination. He specifically recalled certain events and was absolute, and at other times he had no recollection but did not deny certain behaviour occurred, such as showering with is son. He admitted that his memory was at times “hazy”. All those factors contribute to this position.

The allegations concerning the applicant’s son

208. In respect of the allegations involving the applicant’s son we find that the applicant did shower with him on a day after they had been at the beach between 2007 and 2009. We accept the reasons given by the applicant’s son as to why he recanted other allegations of a sexual nature which were said to have been made by him at the insistence of his mother. We accept that the applicant made fun of his son’s penis and pointed and laughed at it. This would have no doubt have left a very distinct memory in the mind of the applicant’s son. Whilst this can only be characterised as bad parenting, it is not something that in our mind which would enable a finding that the Applicant is a risk to children. We find it perplexing that the applicant has no memory of showering with his son, and in that regard we note he does not deny doing so. However, we cannot go so far as to find that the Applicant was not telling the truth or was attempting minimise his evidence, but it does go to the weight we have applied to his evidence particularly as to the reliability of his recollection of events.

The allegations concerning complaints to FACS

209. We make a positive finding that the applicant did smack his children from time to time. We find that this stopped when his children were aged about 10 years. We accept his son’s evidence that his father also slammed doors from time to time. We make no positive finding that the applicant grabbed one of his children around the throat or neck. The Tribunal gives little weight to these matters given they are, apart from the smacking of his son, untested and unsubstantiated statements made by unidentified persons that may be the same or different persons and made in the context of an acrimonious family law dispute. In all, the evidence in this regard does not in our mind satisfy us that the applicant poses a real and appreciable risk to the safety children in such circumstances.

209. The central question underpinning our task is whether the applicant poses a real and appreciable risk to the safety of children. We have carefully considered all of the information before us. In particular the evidence of Dr Seidler. In assessing Dr Seidler’s evidence we have not, by that evidence alone, come to our determination and we have considered the findings as set out by Adamson J in DAR v The Children’s Guardian. It is uncontroversial that the safety, welfare and wellbeing of the child, in particular protection from child abuse, are paramount considerations under the Act and the WWCCC regime. We have considered Young CJ in Eel decision in Commission for Children and Young People v V [2002] NSWSC 949 regarding the construction of s9(8) of the Child Protection (Prohibited Employment) Act 1988 where he says:

‘One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a sexual offence … 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 ‘risk’ with the words that follow, namely, ‘to the safety of children’.

211. We have no evidence before us that the applicant has engaged in conduct of a similar nature with a child after that in which he did so with his brother. Over 27 - 30 years have passed since the abuse concerning his brother occurred. We find that this conduct occurred in a setting where the applicant himself was essentially a child, or at the outside 17 years of age. He was a troubled teenager at the time of the abuse. The evidence of Dr Seidler is compelling in this regard and is one of the factor in us coming to our determination.

212. We do not find the allegations made to FACS sufficient to enable a finding that the applicant is a real and appreciable risk to the safety children. The applicant is now in a second marriage, he and has not come to the attention to any of FACS, the police or other authorities for any similar behaviour. These events do not give rise to a lingering doubt as to whether the applicant utilises appropriate methods to discipline a child and suitably protect them from the actions of others.

213. The applicant made immature decisions as an adolescent which have had a lasting impact particularly on his younger brother. We find that he now has insight into his actions and is aware of the damage his actions have caused his family, particularly his brother. To uphold the respondents cancellation of the WWCCC, we must find that the applicant is today a real and appreciable risk to the safety of children. We are unable to do so. The applicant’s risk to children today and in the future is in our view no greater than the risk of any adult preying on a child.

214. Based on a consideration of all of the evidence, we are satisfied that the applicant does not currently pose a real and appreciable risk to the safety of children.

Section 30 (1A) consideration and findings

215. In our view, having regard to the background to the refusal (as set out at pars [38] – [44] above), and noting the terms of the decision under review, these provisions apply to this review.

216. 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.

217. Section 30 (1A) is only traversed if the Tribunal decides that the applicant is not a risk to children which we have so decided.

218. We note that the decision of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 which 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.”

219. We accept and have taken into consideration the evidence of the applicant, his brother, the employer, his sister, mother and son in determining whether a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child related work. We note that the applicant’s brother would not allow his children to have direct contact with his brother in an unsupervised environment. He did qualify his evidence in this regard on the basis that he himself has had limited contact with his brother over the last 25 years. He said he does not have any evidence himself about whether his brother remains a risk to children. We have had the benefit of reviewing all of the evidence and come to a different conclusion to his.

220. We have considered that the offending conduct occurred some 27 - 30 years ago when the applicant and his brother were children or adolescents. Whilst this in itself does not excuse the behaviour, the historical context and the age of the two then boys are considerable relevant factors in determining what a reasonable person may now decide on this issue. We also have considered the allegations concerning the conduct of the applicant showering with his son and the FACS complaints. The independent view of the Senior Pastor is supportive of the expert opinion of Dr Seidler as regard to the historical nature of the offending. The Senior Pastor gave evidence that he knows who the applicant is now, and even with knowing the allegations of historical events, he would leave his children alone and unsupervised with the applicant. In having all this information before them, we find a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child related work.

221. 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.

222. We find nothing contrary to the notion of the public interest in granting a WWCCC. We find that the applicant’s right to follow his ambition of a minister of religion, contrasted with the protection of children, are in this instance complimentary and in the public interest. Such activity would not pose an unjustified risk to the safety of children.

Conclusion

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

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

225. It therefore follows that the application for review should be allowed and an order made that the decision of the respondent be set aside.

Orders

1. The decision of the Children’s Guardian dated 22 March 2018 cancelling the applicant’s working with children check clearance is set aside.

2. The Children’s Guardian shall forthwith reinstate a Working with Children Check Clearance to the applicant known in these proceedings as DHZ.

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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: 11 January 2019