DSF v Children's Guardian

[2019] NSWCATAD 186

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DSF v Children’s Guardian [2019] NSWCATAD 186
Hearing dates:	17 July 2019
Date of orders:	09 September 2019
Decision date:	09 September 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant, Senior Member L Houlahan, Senior Member
Decision:	The decision of the Children’s Guardian to refuse the applicant a Working with Children Check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant charged with two charges of indecent assault of a child but charges did not proceed – untested allegations - whether applicant poses a risk to safety of children – assessment of risk – correct and preferable decision
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibitive Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BHA v Children’s Guardian [2014] NWCATAD 161  BJB v Children’s Guardian (No. 2) [2014] NSWCATAD 164 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264 Commission for Children and Young People v FZ (2011) NSWCA 111 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V (2002) NSWSC 949 Commission for Children and Young People v Y [2002] NSWCA 949 McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 R v Commission for Children and Young People [2002] NSWlRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88 Smith v Commissioner Police 2014 NSWCATAD 184.
Category:	Principal judgment
Parties:	DSF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: S Swami (Respondent)   Solicitors: Applicant (Self-represented) Crown Solicitor (Respondent)
File Number(s):	2019/00033244
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Overview

1. The applicant is a 26 year old man who seeks a Working with Children Check clearance (“clearance”) to establish a café for young people and people with disabilities.

2. In July 2016, the applicant applied to the Children’s Guardian for a clearance but after conducting a risk assessment, the Children’s Guardian determined to refuse him a clearance and in August 2016 they issued an Interim Bar upon the applicant. Their decision was based on the applicant being charged in September 2012 with two counts of indecent assault of a young person. The applicant was aged 19 at the time of the alleged offence and the victim was aged 9. In April 2013, these charges were subsequently withdrawn. However, an apprehended violence order was put in place against the applicant in protection of the young person. The Children’s Guardian also relied on other evidence including recorded admissions DSF made to a counsellor and admissions to police that could give rise to a risk to children.

3. The applicant seeks an administrative review of a decision of the respondent, the Children’s Guardian, to refuse him a clearance. The applicant relies on his lack of criminal record which is clear apart from the 2012 withdrawn charges. He relies on an expert psychologist assessment and he relies on several personal referees in support of his application.

4. The issue for us to determine is whether, as at the date of hearing, we can be satisfied the applicant poses a real and appreciable risk to children if he were granted a clearance to work in child related-work.

5. After consideration of all the evidence, we decided to affirm the decision of the Children’s Guardian to refuse him a clearance. The reasons are set out below.

6. Due to the sensitive nature of these proceedings we have made the order under s 64(1) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the complainant in the 2012 criminal proceedings are not to be published without leave of the Tribunal. To give effect to this order, the pseudonyms have been used in these reasons including ‘DSF’ for the applicant’s name.

Jurisdiction and role of Tribunal

7. There is no dispute that we have jurisdiction to review the decision of the Children’s Guardian that is the subject of this application. Our role in reviewing that decision is to determine the correct and preferable decision having regard to the material before us and the applicable law: see Administrative Decisions Review Act 1997 (NSW), s 63(1). Upon an application for review we may make orders that include an order to affirm the decision of the Children’s Guardian, or an order to set aside the decision of the Children’s Guardian and in substitution thereof making another decision (in this case an order to grant a clearance): see Administrative Decisions Review Act, s 63(3) and the Act, ss 18(2) and (3).

Applicable Law and Legal Principles

8. The object of the Act is to protect children by not permitting certain persons 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 Child Protection (Working with Children) Act 2012 (“the Act”).

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

10. The Children’s Guardian will consider those matters set out in s 15(4) of the Act in making a risk assessment. The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children: s 18(2) of the Act.

11. A person who has been refused a clearance may apply to the Tribunal for an administrative review of the decision: s 27(1) of the Act. The Applicant must fully disclose to the Tribunal any matters relevant to the application; s 27(4) of the Act.

12. In this administrative review, neither party bears the onus of proof. There is no presumption that DSF poses a risk to the safety of children as would be the case under s 28(7) of the Act if he was a disqualified person. See McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6. Woodward J there observed in relation to the Administrative Appeals Tribunal (at 356-357(FCR):

There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's.

13. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 in which the High Court stated that: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove”.

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

15. Our jurisdiction under s 27 of the Act is protective of children and not punitive of DSF: 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; R v Commission for Children and Young People [2002] NSWlRComm 101.

16. The issue for us as required by s 18(2) of the Act is whether DSF, on the balance of probabilities, poses a risk to the safety of children. Young CJ in Commission for Children and Young People v V (2002) NSWSC 949 considered the test to be applied 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”.

17. We may not make an order on conditions, whether under s 27 or 28 of the Act: BJB v Children’s Guardian (No. 2) [2014] NSWCATAD 164.

18. In determining this application, we must first have regard to the factors set out in s 30(1) of the Act. If we are considering making an order enabling DSF to work with children, we must then consider the two-part test set out in s 30(1A) of the Act.

Evidence

Documents

19. The applicant, DSF filed the following written material:

1. Document entitled, “Defendants Response to Submissions” filed 18 June 2019

2. Personal letter from DSF dated 30 August 2016

3. Statutory Declaration from DSF dated 14 September 2016

4. Report from Psychologist, Dr Robert Blake dated 13 May 2019

5. Certificates of attainment for ‘Child Safety’ courses

6. Several references, both personal and from professional persons who have worked with DSF

7. Driving record of DSF as at 26 February 2019

8. Payslip of DSF as at 4 November 2017

20. The Children’s Guardian or respondent filed a s.58 bundle of documents including the police brief of evidence relating to the criminal charges against DSF that allegedly occurred in 2011 and 2012, correspondence from the Office of the DPP regarding withdrawal of the charges, criminal history of DSF, transcript of 3 separate interviews between DSF and a Kids Helpline staff member that occurred in September 2012, contact and assessment record from the Department of Family and Community Services (DFACS) and report from Crime Stoppers dated 4 November 2017.

21. The applicant was not represented but was assisted by Disability Advocate, and Mentor, Mr Robert Madgwick. The respondent was represented by Counsel.

22. During the hearing, DSF gave oral evidence and was cross-examined by the respondent’s counsel. Dr Blake gave oral evidence and was cross-examined by the respondent’s counsel. No other witnesses were called by either party and both DSF and the respondent’s counsel gave final submissions.

Background and details of disclosures by DSF to Kids Helpline and the trigger offences that led to Children’s Guardian refusing DSF a clearance

DSF’s calls to Kids Helpline

23. In 2012, DSF was 19 years when he made a call to the Kids Helpline on 22 September 2012. He told the counsellor from the service that he was having sexual thoughts and feelings about a 9 year old boy, who shall be referred to as “DZP” hereinafter in these reasons. DSF had met DZP in a local hobby shop where he was employed and DZP had attended the hobby shop from time to time. DSF also lived with his family in a house next to where DZP lived. That is, they were neighbours.

24. During the telephone call on 22 September 2012 with the Kids Helpline Counsellor, DSF made several disclosures, as recorded and transcribed including:

1. He did not want to act on the sexual thoughts he had about DZP,

2. He did not want to go to prison, like his uncle who had spent time in prison,

3. He did not want to do anything with DZP as DZP’s parents were ‘coppers’,

4. He was starting to have feelings for DZP and agreed it was changing from friendship to something else,

5. He agreed his feelings are not appropriate and stated, “I don’t wanna do anything to him. I don’t wanna hurt him”,

6. He stated that DZP had been in a “sexual relationship with an ex-partner who was 17 years old” and DZP was at the time 6 or 7 years old. The counsellor told DSF that this was not a relationship but DZP was being abused. DSF appeared to accept this proposition but continued to refer to DZP as “going out with a 17 year old” and explained how they had “broken up”,

7. He stated that the only thing he had done with DZP was hold hands. DSF had also asked DZP out but DZP did not give him a response. He later felt like a “right old idiot” in asking him out,

8. He stated it was probably a coincidence that he had feelings for DZP as they were both “single” and “gay”, and

9. He stated that he wants to stop these feelings. He stated that he needs help and that is why he rang the Kids Helpline.

25. During a further telephone call on 24 September 2012 with the Kids Helpline Counsellor, DSF made further disclosures:

1. He was trying to keep himself away from DZP,

2. He did not want staff at the hobby shop to find out he had feelings for DZP,

3. He had promised DZP to purchase him an iPhone,

4. He repeated that he did not want to do anything to DZP because DZP’s parents were “coppers”.

26. During an earlier telephone call on 23 September 2012 with the Kids Helpline Counsellor, DSF made further disclosures:

1. The counsellor informed DSF that she would be notifying the police about the details of his disclosures he made to her about DZP. DSF told her that she could not do this as she did not have his permission and what he had said to her was confidential, and

2. DSF would be talking to the police himself about what he told the counsellor.

DSF call to Constable Schmidt of the NSW Police

27. Constable Schmidt provided a statement dated 25 September 2012 included in the police brief. He stated that on 24 September 2012, he was on duty and at about 3.30pm he received a telephone call from a person who stated “Hi there, I have something to disclose…I’m falling in love with a 9 year old”. During the telephone call the person identified himself as the name of the applicant and provided the same date of birth and address of the applicant. This person told Constable Schmidt that he knew him “from work” and he was “having a lot of sexual thoughts about” him.

DSF interview with Police

28. DSF was interviewed by Police on the 25 September 2012. During the interview, he was supported by Ms Christine Wright. Ms Wright was DSF’s case manager at an Employment agency and had worked with him for 3 years.

29. During the police interview, DSF told the police the following:

1. He agreed that he had spoken to Constable Schmidt on the previous day,

2. He had known DZP for a little over 2 years but had developed sexual thoughts and feelings about him over the previous week,

3. He had sexual thoughts about DZP. He understood sex to involve, “blow jobs and hand jobs, and anal and then oral, and then just sex.” He then stated that his fantasies with DZP only involved hugging, holding hands and kissing.

4. He was “straight” but had asked DZP to be in a relationship with him. He later said he had intended to ask DZP to be in a relationship with him in at least ten years’ time, rather than at this immediate time,

5. He was aware of DZP’s parents having an issue with him being in love with DZP only due to their age difference,

6. He accepted that engaging in any sexual activity with DZP would be inappropriate. He told police he was not a paedophile,

7. He expressed suicidal ideations and suggested if he lost his friendship with DZP, there would be little use for living,

8. He denied making up the allegation about the 17 year old “partner”. He was asked about DZP being interviewed, and stated, “children don’t always tell the truth, and

9. He stated that he bought DZP some gifts including paints and Lego and the promise of an iPhone. He stated the gifts were to thank DZP for being his friend as he found it hard to make friends.

Trigger offences against DSF

30. Following the disclosures to the Kids Helpline and the admissions made by DSF in the police interview, the police interviewed DZP and his parents and step-parents. On 26 September 2012, following the police investigation, DSF was charged with 2 counts of indecent assault of a person under 16 years of age under s.61M(2)(now repealed) of the Crimes Act with respect to incidents that allegedly occurred in 2011 and 2012. DSF was also charged with common assault under s 61 of the Crimes Act and other offences relating to break and entering into DZP’s home in relation to the incidents in 2011 and 2012. The three charges are based on the following three incidents.

First incident in 2011

31. DZP described an incident during which DSF touched his penis, over his clothes, when DZP was attending class at the hobby shop taught by DSF. DZP told police that two of his friends were also in this class but they did not see what DSF was doing.

Second incident on 20 September 2012

32. DZP told police that DSF had jumped over his property fence and entered DZP’s home unannounced. DSF came through the garage and began yelling out DZP’s name. DZP proceeded to hide in his father’s wardrobe as his father was in the shower, getting ready for work. DSF found DZP and pulled him by the arm to the backyard to show him DZP’s dogs. DSF then hugged DZP and touched his stomach and buttocks over his clothes. DZP tried to get away but DSF pulled him back by the arm. DZP began to cry and ran back into the house and locked himself in the bathroom. DZP stayed in the bathroom for approximately 10 minutes until DSF left his home.

Third incident in 2012

33. DZP told police that on an unspecified evening in 2012, DSF entered DZP’s bedroom unannounced. DSF pulled DZP to the floor after which DZP yelled for his father’s girlfriend, who was home at the time. DSF left the house but returned to DZP’s bedroom 30 minutes later. DSF moved to the floor and placed his hands on DZP’s feet and stomach, asking DZP to come outside with him. DZP refused and DSY left taking one of DZP’s model fire engines with him.

Aftermath of charges

34. DZP’s parents made corroborative statements to police indicating that DZP had displayed concerning behaviours including angry outbursts, flashing his private parts and self-harm around the time of the alleged conduct occurring. An expert report was prepared by a local Sexual Health Service opining that DZP, “gave a clear disclosure of touch to the penis and buttocks as well as exposure to photographs that may have been pornographic. He denied oral abuse”.

35. After DZP made the disclosures to the NSW Police Joint Investigation Team (JIRT), JIRT considered that DZP was at risk of sexual harm and FACS recorded DSF as “a person causing harm” on their agency database.

36. On 19 March 2013, an AVO was granted against DSF for period of 2 years. The AVO was later varied on 2 April 2013 to remain in place for a further 3 years from the date of the variation.

37. On 26 June 2013, the NSW Police withdrew the charges against DSF after being instructed by DZP’s parents that it was not in the best interests of their son, DZP to give evidence in the matter. However, the AVO remained in place.

The evidence of DSF and our findings regarding his evidence

38. DSF gave oral evidence and provided several written statements supporting his application for a clearance.

39. During the hearing DSF was assisted by Disability Advocate, Mr Madgewick. DSF told us that he had a disability. He told us that as a 26 year old person, he functioned as a person who was about 21 years old. He told us that he had previously been assessed by someone at Headspace mental health service in about 2013 but he could not recall the name of the treating practitioner and the outcome of the assessment. He provided no other details or information about his disability.

38. DSF told us that he wanted a clearance so that he could set up a café for young people with disabilities. He was a person of good character and referred to his personal written references. He had worked with children before and had no previous reports of wrongdoing or other complaints. He had a clear criminal history and while he was charged with child related offences in 2012 these charges were withdrawn due to lack of evidence.

39. He was cross-examined by the respondent’s counsel. The relevant parts of his evidence were,

1. He agreed he told the Kids Helpline counsellor that he did not want to act on his sexual urges toward DZP. He then explained this statement by telling us that he had received information about DZP’s younger sister and step-brother performing sexual acts on DZP; and DSF was concerned about this. DSF agreed that this explanation was not given to the Kids Helpline counsellor at the time of the interview in 2012 and not given to the police during the police interview a few days later. On further questioning, DSF denied making up this explanation for the purposes of the NCAT hearing.

2. He was asked about his statements to the Kids Helpline counsellor that his relationship with DZP had gone beyond a friendship but he told us he could not recall making this statement and in any event, he would not make this statement as any suggestion he had sexual urges towards DZP and children in general, was “disgusting”.

3. He agreed that during the interview with the Kids Helpline counsellor he described another 17-year-old young man as DZP’s ex-partner. He agreed that as DZP was only 9 years old at the time, this terminology was wrong and any relationship between them was abusive.

4. He agreed that during the interview with the Kids Helpline counsellor he described an incident when he asked “DZP out” and DZP did not give him a response. He told us that he could not explain why he said this and he agreed this was not appropriate.

5. He was asked about the statement he made to the Kids Helpline counsellor that it was a coincidence that both he and DZP were “gay” and “single”. He told us that he did not recall saying this and stated that it was not true as he had never had a sexual feeling for DZP or any child.

6. He agreed that he did tell Kids Helpline counsellor that he did not want the police to know about his phone call to the Helpline. He told us he did not know why he said this and why he did not want police to know.

7. He was asked about the phone call he made to Constable Schmidt reportedly telling Constable Schmidt that he was in love with a 9-year-old boy. DSF told us that he did not make this call. He was referred to the transcript of the call and his admission in his ERISP that he made the call but he told us again that he did not make the call.

8. He told us that since 2012 he had matured. He looks back now and sees that it was odd that he, as a 19-year-old man wanted to be friends with a 9-year-old boy. However, he believes in 2012 he did not think it was odd.

9. He agreed that he told police that “kids don’t always tell the truth”. He told us that he agreed with this statement. He was asked in evidence what he would do if a child made a disclosure to him about sexual abuse. He told us he would first ask questions and seek to clarify the situation.

10. He denied all allegations made against him by DZP that formed the basis of the charges. He told us that he believed DZP was ‘coached’ when he made statements to the police and he did not tell the truth.

Findings on DSF’s evidence

42. Based on our observations during the hearing and without any other evidence regarding DSF’s capacity, we found that DSF appeared to understand the nature and purpose of the hearing. We found that DSF appeared to understand the questions being asked of him and the implications of his answers. At times during his evidence he became upset by the questioning from the respondent’s counsel and challenged her about the relevance of her questioning on the 2012 charges when the charges had been dropped. If DSF did not understand the question being asked of him, he asked respondent’s counsel to repeat or clarify the question.

43. In consideration of the whole of his evidence, we found DSF not to be a credible witness. He was at times incoherent and contradictory. For example, he denied telephoning the police and speaking to Constable Schmidt on 24 September 2012. This was despite a statement from Constable Schmidt dated 25 September 2012 stating that he received a telephone call from a person with the same name, date of birth and address of the applicant. DSF was also interviewed by police the next day and in his ERISP, DSF did not deny making the call to Constable Schmidt. The documentary evidence was not in dispute and DSF could not otherwise explain how he was not the person who spoke to Constable Schmidt. We therefore find that DSF was either not telling the truth or was mistaken. Similarly, in his evidence, DSF agreed to making some statements contained in the transcript and disagreed with making other statements contained in the transcript. Without an explanation, as to how this could be possible, we find DSF is either not telling the truth or is mistaken.

44. DSF also appeared to concoct evidence. For example, he raised in his evidence a new allegation that DZP had been abused by his younger sister and step-brother. It was an entirely new piece of evidence which if true, was very significant yet DSF did not disclose this allegation to either the Kids Helpline counsellor or the police at the time he was questioned. We therefore find that DSF likely concocted this explanation to try to explain why DZP made a report to police although it did not exonerate or explain his own statements about his inappropriate interest in DZP.

Consideration of s.30(1) factors and findings

a) Seriousness of any matters that caused the assessment in relation to the person

45. The trigger offences involve allegations that DSF indecently assaulted DZP, a 9 year old child, by touching his penis on the outside of his clothes. There were allegations that DSF assaulted DZP by hugging him and touching his stomach and buttocks over his clothes. There were also allegations that DSF entered DZP’s bedroom without consent and assaulted him. These allegations were denied by DSF and the charges were later withdrawn by the police on the request of DZP’s parents. DZP’s parents had observed DZP’s behaviour deteriorating at the time of the alleged offences and they did not believe it was in their son’s interests for him to give evidence in the matter.

46. The refusal of DSF’s clearance was also based on disclosures DSF made to the Kids Helpline counsellor in which he reported that he had sexual thoughts about DZP and these thoughts were beyond friendship. He did not want to go to prison and end up like his uncle who spent time in prison and he did not want to do anything to DZP as DZP’s parents were coppers. He had also promised DZP to purchase a gift for him. He called the Helpline to request help.

47. 3    The offences of indecent assault and assault against DSF did not proceed and were therefore untested. In relation to these offences there was no direct evidence against DSF other than the evidence of DZP. However, the police relied on DSF’s own admissions to Kids Helpline and the police. These admissions were recorded in transcript and there was no contrary evidence to dispute the veracity of these admissions. While the admissions do not amount to actual harm they give rise to a serious risk of harm to children if not properly addressed and dealt with.

48. 4    Whilst DSF disputes the matters that caused the refusal of a clearance, we find they are serious.

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

49. The trigger offences were alleged to have occurred in 2011 and 2012, some seven to eight years ago.

50. There is no evidence of DSF being the subject of any further complaints, allegations or charges.

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

51. DSF was between 18 or 19 years of age at the time of the trigger offences.

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

52. At the time of the trigger offences, DZP was 9 years old.

53. DZP was the next door neighbour of DSF and this may have caused DZP some distress given DSF was always close by and could readily make contact with him.

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

54. The difference in age between DSF and DZP was approximately 10 years.

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

55. DSF was aware that DZP was a 9 year old child as he admits in his statements and evidence.

g) The person’s present age

56. The present age of DSF is 26 years of age.

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

57. DSF has no criminal history.

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

58. DSF demonstrated some insight into how his conduct may have impacted on DZP when he acknowledged in evidence that it was “odd” for him as a 19 year old in 2012 to be friends with a 9 year old boy. He also acknowledged that he used inappropriate terminology in his 2012 interviews when he referred to “asking DZP out” and DZP having a “partner” given that DZP was only 9 years old. However, he stops short of acknowledging his previous statements that he had a sexual interest in DZP. This is contrary to what the transcript states and DSF offers no explanation about this conundrum. He simply denies the statements. We do not accept this evidence and refer to our earlier findings on DSF’s evidence. We believe DSF did make these statements and that in 2012 DSF did have a sexual interest in DZP and as he stated, he called the Helpline for help. We also note there is no other evidence that DSF sought any further assistance regarding his admissions that he had a sexual interest in a child.

59. We find that DSF’s evidence supports a finding that there remains a likelihood of repetition of the alleged conduct by DSF. If in the future, DSF obtains psychological assistance and education regarding his 2012 statements that leads to greater acknowledgement, insight and understanding of what occurred in 2012 and the principles of child protection, this may mitigate the likelihood.

Assessment by Dr Roger Blake, Psychologist

60. DSF relied on a report from Dr Blake dated 13 May 2019. Dr Blake interviewed DSF and undertook a sex offender assessment. He also tested DSF using a Static 99 risk assessment instrument and a Stable 2007 risk assessment instrument. He concluded that, “In my opinion, [DSF] is not at risk of any child sexual offending or inappropriate child sexual behaviour”.

61. During cross-examination, it became clear that Dr Blake formed his opinion on limited information. That is, he had read the police facts regarding the trigger offences and the respondent’s interim bar decision refusing a clearance. However, Dr Blake had not read the transcript of the interview between DSF and the Kids Helpline counsellor and he had not read the ERISP conducted by the police regarding the trigger offences. The respondent’s counsel then put to Dr Blake the relevant statements made by DSF during these interviews. Dr Blake told us that if he had read this material he would not have formed his opinion in such “unequivocal terms”. He also agreed he could not provide an accurate assessment until he had received all the relevant information. Given this further evidence from Dr Blake, we give no weight to his report and opinion.

62. Any repetition of the trigger offence of indecent assault against a child has the potential to cause significant harm to the child. There are numerous case studies and authoritative research that have documented the often devastating and lasting impacts of child sexual abuse on children and how this can continue into adulthood.

j) Any information given by the Applicant in, or in relation to, the application

63. DSF provided several personal and professional references. They provide very positive opinions about the capacity and integrity and ability of DSF. However, none addressed the matters against which DSF was refused a clearance and it is unclear from the references whether the authors had this knowledge or not when preparing their references. For this reason, we can only give limited weight to this evidence.

j1) Any relevant information in relation to the person that was obtained under section 36A

64. No such information was provided to the Tribunal.

k) Any other matters that the Children’s Guardian considers necessary

65. The respondent provided a copy of a report to NSW Police that on 4 November 2017, DSF had “been hanging around the local Marketplace and local high school, talking to children on push bikes during the school holidays. His vehicle was also reported to have been seen entering the local high school several times during the school holidays.” DSF told us that he denied this report. He told us that he was working on the 4 November 2017 and provided a payslip indicating a fortnightly period inclusive of the 4 November 2017. He also told us that his driving licence had been suspended over this time and provided a driving record indicating his licence was suspended.

66. We do not give this report any weight. The details are scant. For example, there is no information about times or other dates or vehicle registrations. There is no information about who made the report so it could be verified or any other corroborating evidence. We also note DSF gave evidence denying the report and he provided some documentary evidence to support his version.

Consideration

67. In relation to the 2012 indecent assault charges. DSF denied the charges and they did not proceed because the police were instructed by DZP’s parents that DZP would not be giving evidence in the matter. It is therefore an untested allegation.

68. The approach taken by the Tribunal to untested allegations is outlined by Beech-Jones J in paragraph [33] of BKE v Office of the Children’s Guardian [2015] NSWSC 523 as follows:

“...it may be that NCAT can be satisfied that [on the evidence] an allegation of sexual abuse against an applicant is established [to the requisite civil standard]. Equally NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in 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 an 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.”

69. In this matter, we are unable to make a positive finding that DSF indecently assaulted DZP. The only evidence against DSF is the untested statement made by the 9 year old complainant. DSF has consistently denied the allegation and there is no other direct evidence to support it. However, we do find that the circumstances surrounding the allegation mean that the existence of a risk to a child has not been disproven. The circumstances include DSF making statements to both the Kids Helpline counsellor and the police that he had a sexual interest in DZP and was calling the Helpline as he wanted help and he did not want to do anything to DZP or words to that effect. DSF also told them that he did not want DZP’s parents to know he was calling as “they were coppers”. DZP’s parents made statements to police that at the time of the alleged assaults, DZP had displayed concerning behaviours including angry outbursts, flashing his private parts and self-harm. Finally, an expert report had been prepared by a local Sexual Health Service stating that DZP had given a clear disclosure of sexual assault.

70. We have carefully considered the evidence and the s 30(1) matters. In DSF’s favour, we noted that he is a young man who had several personal and professional references from people who clearly held him in high regard. We noted that apart from the matters raised by the respondent, DSF had no other adverse reports or complaints made against him. We also noted that prior to police involvement, DSF personally initiated assistance regarding his feelings for the child when he contacted the Kids Helpline. However, balanced against these factors were the following matters:

1. Our finding that the surrounding circumstances of the 2012 indecent assault charges that indicate the risk to the safety of children has not been disproven,

2. Our finding that DSF made admissions to the counsellor and police regarding a sexual interest in a child and that despite the undisputed documentary evidence, DSF has continued to deny these admissions and failed to address them or gain any insights or understandings of what occurred in 2012 when he was a 19 year old man having sexual thoughts about a 9 year old child, and

3. DSF’s evidence to the Tribunal that he believed children did not tell the truth and if a child made a disclosure to him of sexual abuse he would first seek clarification. This demonstrated a lack of understanding and insight into child protection principles.

71. Based on the cumulative weight of these matters we are satisfied that DSF poses a real and appreciable risk to children and we affirm the decision of the respondent in refusing DSF a clearance. In making this decision, we have taken into account the paramount consideration of the Act being the safety, welfare and wellbeing of children and in particular, protecting them from child abuse.

72. As we have decided not to consider DSF for a clearance there is no need to consider the other statutory tests outlined in s 30(1A) of the Act.

Orders

1. The decision of the Children’s Guardian to refuse the applicant a Working with Children Check clearance is affirmed.

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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: 09 September 2019