DVW v Office of the Children's Guardian

[2020] NSWCATAD 33

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DVW v Office of the Children’s Guardian [2020] NSWCATAD 33
Hearing dates:	11 September 2019
Date of orders:	29 January 2020
Decision date:	29 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Mulvey, Senior Member E Hayes, General Member
Decision:	(1) It is declared DVW is not a disqualified person for the purposes of section 28(1) of Child Protection (Working with Children) Act 2012 (NSW) for the offence of filming another person’s private parts for the purpose of obtaining sexual arousal or sexual gratification contrary to s 91L(1) Crimes Act 1900 (NSW) entered on 5 February 2014 at the Hornsby Local Court. (2) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 10 May 2019 is granted. (3) The Children’s Guardian is to grant a working with children check clearance to DVW pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).
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– indecent assault contrary to s 91L(1) Crimes Act 1900 (NSW)– enabling order – discharge onus -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 and Young Persons (Care and protection) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes Sentencing and Procedure Act 1999 (NSW) Evidence Act 1995 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BFB v Children's Guardian [2014] NSWCATAD 111 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 BYR v Children’s Guardian [2013] NSWADT 310 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Children’s Guardian v BQJ [2016] NSWSC 869 Children’s Guardian v CFW [2016] NSWSC 1406 Children’s Guardian v CKF [2017] NSWSC 893 Children’s Guardian v CXZ [2019] NSWSC 1083 CJT v Office of the Children's Guardian [2016] NSWSC 738 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 M v M [1988] HCA 68; 166 CLR 69 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] 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 Tilley v Children's Guardian [2017] NSWSC 174 ZZ v Secretary of the Department of Justice [2013] VSC 267
Texts Cited:	None cited
Category:	Principal judgment
Parties:	DVW (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: Nikola Velcic & Associates (Applicant) Crown Solicitor (Respondent)
File Number(s):	2019/00146812
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 is an application filed on 10 May 2018 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”). The applicant in these proceedings is referred to as "DVW". DVW is the applicant's pseudonym used in these proceedings in conformity to an order made pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013.

2. On 5 September 2013, DVW applied for and was granted on the same day a Working With Children Check Clearance (WWCCC) by the respondent.

3. On 5 February 2014, DVW pleaded guilty to the offence of ‘between 10.13pm and 11.30pm on 7 January 2014 at Chatswood, did for the purpose of obtaining sexual arousal or sexual gratification film another persons private parts contrary to s 91L(1) Crimes Act 1900 (NSW) (the Disqualifying Offence). The learned magistrate imposed a bond pursuant to section 9 Crimes Sentencing Procedure Act 1999 (NSW) (CSPA) requiring that DVW be of good behaviour for a period of 18 months. DVW appealed the severity of the sentence and Judge Hanley of the District Court of New South Wales reduced the sentence to a bond pursuant to section 10(1)(b) of the CSPA requiring DVW to be of good behaviour for the same period as imposed by the learned magistrate.

4. The Disqualifying Offence is one which is specified within Schedule 2.1(1)(p) of the Act. As such it deems DVW to be a disqualified person (section 18(1) of the Act). The respondent must cancel a person’s WWCCC when she becomes aware that the person is a disqualified person (section 23(1) of the Act). On 7 February 2014, the respondent imposed an interim bar on DVW and on 21 March 2014, he was informed that he was a disqualified person and his WWCCC was cancelled by the respondent.

5. On 11 April 2014, DVW applied to NCAT for an enabling order, pursuant to section 28 of the Act. That application was refused on 24 July 2014.

6. On 29 January 2016, DVW again applied to NCAT for an enabling order, however, given the application was brought within 5 years of the Tribunal’s previous decision, the application was ultra vires and was dismissed on 31 January 2016.

7. On 25 March 2019, DVW applied to the respondent for a WWCCC. The respondent on 24 April 2019, advised DVW that due to the Disqualifying Offence included in his criminal history, he was not to be granted a Working with Children Check Clearance (“WWCCC”).

8. DVW then filed the application presently before us to be granted an enabling order.

9. The Respondent filed written submissions neither opposing nor supporting an order that DVW not be treated as a disqualified person for the purposes of the Act in respect of the Disqualifying Offence. However, the respondent reserved the right to make final submissions after the close of evidence. The respondent now opposes the application.

10. The issue for us to consider in determining an application for an enabling order is whether, at the date of hearing, we can be satisfied DVW has rebutted the presumption that he poses a real and appreciable risk to children, and if so whether to grant DVW a WWCCC.

11. After consideration of all of the evidence, we decided to declare that DVW is not a disqualified person and to grant him a WWCCC. The reasons are set out below.

Jurisdiction of the Tribunal

12. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a WWCCC, or grant an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance (sections 3 and 28(1) of the Act).

13. The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act (section 4 of the Act).

14. There is no relevant definition of “child abuse” contained in the Act. However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children’s Guardian [2014] NSWCATAD 115 at [19]- [30], an offence of “child and young person abuse” has been included in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence is as follows:

Child and young person abuse

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

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

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

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

is guilty of an offence.

Maximum penalty: 200 penalty units

15. In BFX v Children’s Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows:

The ordinary meaning of “child abuse” in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987.

16. The Disqualifying Offence with which DVW was charged and convicted is one which falls within Schedule 2.1(1)(p) of the Act. Therefore, DVW is treated as a “disqualified person”. By reason of section 18(1)(a) of the Act, the Children’s Guardian must not grant a WWCCC to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as “disqualified persons”, in the same section of the Act. DVW is, relevantly for the purposes of the Act, an adult and was an adult, aged over 18 years, at the time of the disqualifying offence.

17. An enabling order is sought by DVW pursuant to section 28 of the Act, which provides:

28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an "enabling order"). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order"). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a Working with Children Check clearance, or

(b) the person’s clearance has been cancelled,

because the person is a disqualified person.

(4) The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

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

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

18. The Respondent is a party to the proceedings pursuant to section 28(4) of the Act.

19. A person is not permitted to engage in child-related work unless they hold a WWCCC (section 8 of the Act).

Standard of Proof

20. It is to be presumed, unless DVW proves to the contrary, that DVW poses a risk to the safety of children (section 28(7) of the Act). It is well established that the standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J at [34].

Relevant considerations

21. In making a determination under section 28 of the Act, the Tribunal must consider the matters under section 30 of the Act. Those matters are:

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.

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

22. 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.

What must be determined

23. The Tribunal is to determine whether DVW has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut the presumption that he poses a risk the safety of children: section 28(7) of the Act; BKE v Office of the Children’s Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before it in order to assess whether the onus of proof has been discharged to rebut the presumption.

24. In determining whether DVW does pose a risk to children it is accepted that the risk must be a real and appreciable risk: see BYR v Children’s Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was); BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J esp at [26], [27].

25. In exercising our protective jurisdiction and considering the paramount principle in section 4 of the Act, the Tribunal in carrying out an assessment of whether DVW is a real and appreciable risk to the safety of children should err on the side of caution if there is a deficiency in information, or, if there is doubt created by the available material (BFB v Office of the Children’s Guardian [2014] NSWCATAD 111 at [119].

26. In BKE v Office of the Children’s Guardian, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[29] InCommissioner for Children and Young People v FZ [2001] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference toBriginshaw v Briginshaw [1938] HCA 34;  60 CLR 336 (“Briginshaw”) in the above passage fromIK(at [68]). I share his Honour’s misgivings.Briginshawwarns 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 inBriginshawwere 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 toBriginshaw’sadmonitions 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 (seeR v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30;  50 CLR 228 at p 256 per Evatt J).

...

[31] InM v Mthe 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 inBriginshaw” (M v Mat 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 inBriginshaw, 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 Mat p 78).

[33] The above passage fromM v Mcontemplates 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 theWorking with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (Vsupra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability ofBriginshawnoted in [29], the reasoning inM v Mis 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.

27. For clarity the Court in M v M 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 regard to the factors mentioned in Briginshaw’ (M v M at page 76).

28. It is well established that a three step approach to assessing a risk under the Act has been endorsed by the High Court in M v M requiring the Tribunal to first decide whether or not it is satisfied on the balance of probabilities that an allegation is true (and, if it is so satisfied, then it proceeds to determine the case on the basis that it is true) or, if not, whether or not it has ‘no hesitation in rejecting the allegation is groundless’ (in which case it proceeds to determine the case on the basis that the allegation is untrue), Children’s Guardian v CFW (2016) NSWSC 1406 (at [14]).

29. The third step requires the Tribunal in reaching neither of the satisfactions set out above with respect to an allegation, is still obliged to consider questions of risk that may be indicated by all the facts, CFW at [15]. All the facts include the fact that an allegation has been made and facts relevant to assessing the weight of the allegation. Even if an allegation, or set of allegations, is not proven on the balance of probabilities, if ‘a lingering doubt or suspicion remains’ then this should count against the applicant, CFW at [16]. This has been taken to mean that if it is proven to an extent sufficient to give rise to a sufficiently large concern about the consequences, if the allegation, or set of allegations is true, then a risk within the meaning of the Act will exist and the application for a clearance should be refused.

30. In Children’s Guardian v CKF (2017) NSWSC 893, Justice Davies agreed that the correct approach to risk is outlined by the High Court in M v M and the discussion referred to by Justice Beech-Jones extracted above.

31. In Office of the Children’s Guardian v CFW (2016) NSWSC 1406, Justice Harrison discussed how the Tribunal could consider events when the Tribunal had a lingering doubt or where suspicion remained. Justice Davies accepted there was a three step process and the only point of departure was whether doubt ‘counts against the defendant or is … simply a matter to be considered’.

32. The New South Wales Court of Appeal in Tilley v Children’s Guardian (2017) NSWCA 174 considered that a number of similar allegations, in different locations, and from apparently entirely independent complainants is material upon which the Children’s Guardian and the Tribunal are entitled to act, or more practically, may lend some weight to other risk factors.

33. 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.

34. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: 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] NSWIR Comm 101 at [130].

35. There is no dispute that we have jurisdiction to review the decision of the respondent that is the subject of this application (s 27(1) of the Act). In reviewing that decision we must determine the correct and preferable decision having regard to the material before us and the applicable law: see Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 63(1). Upon determining an application for review we may make orders that include an order to affirm the decision of the respondent, or an order to set aside the decision of the respondent and in substitution thereof making another decision (in this case an order to grant a clearance): see ADR Act, s 63(3) and the Act, ss 18(2) and (3).

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

Evidence

Documents

37. DVW filed the following written material:

• Application and bundle filed 17 June 2019 (A1)

38. The respondent filed the following written material

• S58 bundle filed 1 August 2018 (R1)

• S58 bundle filed 23 August 2018 (R2)

• Crowns solicitors letter to applicants solicitor 19 June 2019 (R3)

• Letter in reply to R3 dated 27 June 2019 (R4)

39. DVW was represented by a solicitor. The respondent was represented by Counsel. The parties filed a summary of legal argument and written submissions.

40. The hearing was conducted over a day. During the hearing, DVW gave oral evidence and was cross-examined by the respondent’s counsel.

The circumstances of the disqualifying offence

41. The disqualifying offence occurred on 7 January 2014. DVW pleaded guilty to the charge set out above. At the time of the Disqualifying Offence, DVW lived with his mother and brother in Sydney. He was home alone due to his family being overseas. His friend was a registered member on a website which provided rooms and available homes for tourists and visitors, particularly backpackers. DVW’s friend arranged for two female German backpackers to stay with him.

42. On the day of the subject Disqualifying Offence, the two backpackers were out. DVW said he watched a movie ‘American Pie’ and in one scene, a web cam was used to film an attractive European female changing her clothes. In some of DVW’s later documentation which is relied upon, and during cross-examination, he says he was also watching YouTube prank videos (see below).

43. DVW told the police during the investigation that he had been drinking whilst watching the film. He decided to set up a go-pro camera in the clothes basket of his bathroom to record the two backpackers changing when they returned. One of the backpackers went into the bathroom to change into her pyjamas and noticed the camera. The applicant’s ruse was exposed and DVW’s friend was called who in turn notified the police. DVW was charged and convicted of the Disqualifying Offence after pleading guilty. Importantly DVW did not tell the police he was watching YouTube videos, nor anything about a glad wrap prank referred to below.

44. During cross-examination DVW was taken to various documents where he discloses to agencies in other states of Australia, similar to the respondent, the circumstances of the Disqualifying Offence. In this regard, DVW had applied for, and was granted working with children clearances (or the equivalent) in Victoria, Queensland, Tasmania, the Northern Territory and Australian Capital Territory. Counsel for the respondent spent some time questioning DVW in relation to the differing version of events relating to the Disqualifying Offence, particularly, DVW’s introduction of having watched YouTube videos depicting a prank using glad wrap. The prank involved placing glad wrap over the bowl of a toilet to trap the user of the toilet when evacuating oneself of urine or faeces. DVW said he replicated the same prank in order to film the backpackers in such circumstances.

45. Counsel for the respondent put to DVW whether he had invented a story about the glad wrap prank to minimise the seriousness of the Disqualifying Offence. He denied this. It was further put to DVW that he did so in order to be granted working with children clearances (or the equivalent) in the other states and territories which he also denied.

46. The following documents were put to DVW about the factual nature of version of events he provided to a number of agencies, the court and police.

Police facts

47. DVW agreed that he pleaded guilty to the following police facts (exhibit A1 page 91-91):

In the evening of the 7th January 2014, the victims went out without the accused. While the victims were out the accused watched American Pie. There is a scene in American Pie where a web cam is used to film a female getting changed. This has given the accused the idea to set up a camera in his bathroom with the intention of filming the victims…

During the interview the accused made full and frank admissions in relation to placing the camera in the bathroom with the intention of filming the victims for his personal sexual arousal.

…

48. He said he was honest to the learned magistrate and Judge Hanley when he pleaded guilty to these facts. In a letter addressed to the presiding magistrate dated 4 February 2014 (exhibit A1 page 128) DVW said: ‘I was upfront and honest about what I had done when I was interrogated by the police and had opportunely allowed them to search my apartment’. Indeed Judge Hanley noted in his sentencing remarks that DVW made full and frank admissions.

Application to the Victorian Department of Justice and Regulation

49. On 27 December 2017, DVW applied to the Victorian Department of Justice and Regulation for a working with children check which was ultimately granted. As part of the investigation undertaken by the Victorian agency, it undertook a risk assessment of DVW. As part of the assessment the Victorian agency asked DVW the following question (Exhibit R2 pages 85 -87):

2. Regarding information provided by New South Wales Police:

1. The police reported at that during the police interview on 8 January 2014, ‘the accused made full and frank admissions in relation to placing the camera in the bathroom with the intention of filming the victims for his personal sexual arousal.

Confirm whether you made these admissions at the time.

50. DVW replied:

I confirm I made these admissions at the time. However, this was said while I was quite vulnerable and tired. I had not slept the night before, and had been arrested about 6am, not having gone to bed at 4am (after the incident).

51. DVW was asked:

1. In your submission to the department dated 8 May 2016, you stated ‘I confirm that the information about the offence is correct. However there was one aspect of the offence, which I remained silent about, as I thought this would make my case worse and impeach me further. This was a prank I had set up when putting the camera in’.

Confirm whether there was sexual motivation behind your offending.

52. DVW answered:

…I watched YouTube (sic) prank videos and then a movie – American Pie – and thought it would be humourous to pull the prank that I viewed in the movie. So to answer this question, yes there was a small degree of sexual motivation, but mostly in the sake of humour. What I ended up keeping silent from the police was that I put Glad wrap (sic) over the toilet seat and then put the camera in the clothes’ basket. In the interview with the police, I thought it’d be better to not mention the idea of the ‘prank’ as I felt that this would get me in more trouble and exacerbate my charge and arrest…

53. Counsel for the respondent pressed DVW’s as to whether he thought he would be worse off admitting to a prank, rather, than admitting to being a sexual offender. DVW said he thought admitting to the prank would cause him to be worse off. We find that DVW’s answer to this question is quite odd. A reasonable person in our view would more likely accept that a prankster may be in significantly less trouble than a sexual offender.

Application to the Tasmanian Authority

54. DVW applied for, and was granted a working with vulnerable persons check in Tasmania. Similar questions were asked by the relevancy agency concerning the Disqualifying Offence. DVW describes the relevant circumstances as being:

…I decided … I would put on a movie. Whilst watching it, I slowly became inebriated and the movie went on and stupidly thought of a funny prank (based off the film) to pull on the two when they got back home. The prank basically involved putting clear Glad wrap over the toilet underneath the seat.

55. DVW was cross examined about his non-disclosure of any mention of carrying out the filming of the two backpackers for sexual gratification. Indeed, the only reference he makes in his response as to why he carried out the filming relates to: ‘I thought the prank would be funny and a good laugh…’. In cross-examination DVW said he meant it was both, that is sexual arousal and amusement. DRW’s answer in cross-examination is not reflected in his written response to the Tasmanian agency.

56. DVW admitted the movie American Pie does not depict the glad wrap prank. He said at the time he was watching the movie, he was also watching a YouTube video. DVW said he had two screens open at the one time on his computer. He denied that this evidence was a recent invention.

57. DVW agreed that he did not tell the police, the magistrate, Judge Hanley nor the expert who prepared a report in the criminal matters Ms Anita Duffy about the glad wrap prank or the YouTube videos. DVW refers to the glad wrap prank to each of the Tasmanian, ACT, Northern Territory and Victorian agencies all of whom have granted him a working with children check clearance (or equivalent). However, it was not until he applied to the Victorian agency that he referred to watching YouTube pranks videos.

58. We note in the version of events DVW gives to the Victorian agency on 18 July 2018 he states (Exhibit R2 page 19):

…I watched YouTube prank videos and then a movie – American Pie- and thought it would be humourous to pull the prank that I viewed in the movie…

59. DVW’s version he provides to the Victorian Agency is inconsistent with his evidence in this hearing. On the one hand he says: ‘it would be humourous to pull the prank that I viewed in the movie’ – filming a lady getting changed, then on the other hand he says refers to the glad wrap prank.

60. DVW consulted a counsellor at the University of Sydney. In the counsellor’s notes there is no mention of the glad wrap prank, nor DVW watching YouTube videos. The notes were created on 23 January 2014 (exhibit R2 page 62).

61. In two character references DVW included with his application to the Victorian agency (Exhibit R2 page 69-71), reference is made to DVW watching YouTube videos and the glad wrap prank. Whilst the references are undated, we find that they were prepared in about July 2018 for the purpose of supporting of the Victorian application.

62. It is difficult to accept DVW’s evidence that he was watching YouTube videos and that he devised the glad wrap prank whilst watching the movie American Pie. DVW did not mention the glad wrap prank to the police, his counsellor, Ms Duffy or the Local and District Courts when his criminal matter was heard. The first mention of the glad wrap prank arises when DVW commenced his application for a working with children check in other Australian jurisdictions in about 2016. DVW’s explanation in cross-examination as to him watching two screens at the one time (YouTube and American Pie) is inconsistent with all other previous versions he has given, particularly, his statement to the Victorian agency at (Exhibit R2 page 19) where DVW under his own hand states: ‘I watched YouTube prank videos and then a movie’ [our emphasis].

63. We find, on the balance of probabilities, DVW invented the glad wrap prank story. We do not accept his evidence that he did not tell the police about this prank because he thought he would be in more trouble. It is fanciful in our minds to suggest that he thought a prankster could be in more trouble than a sexual offender. DVW is an educated man who according to his referees has obtained high academic achievement. DVW’s evidence concerning why he did not tell the police about the glad wrap prank contradicts the opinions contained in his character references.

64. It is difficult to determine DVW’s motivation in creating the glad wrap prank story. However, we find it is more probable than not that DVW invented the glad wrap prank in an attempt to minimise his offending in order to obtain a more favourable response to his various applications for working with children checks in other Australian jurisdictions as submitted by the respondent. DVW’s many references to him carrying out the filming solely, or predominantly for humour, support such a finding. However, we are not satisfied that the evidence is such that we could make a positive finding that DVW is not a witness of truth and whose evidence we should reject on the basis of him being an uncredible witness. DVW in our minds has attempted to place himself in the best possible light in all of his applications for WWCCC, whilst not resiling from the Disqualifying Offence to which he pleaded guilty. This is a matter which reflects on his candour but is not fatal.

65. Since the day DVW was charged with the disqualifying offence he has been remorseful and acknowledges his wrongdoing. The reliability of DVW’s evidence is tainted because of our findings above, but not to the extent that we reject his evidence outright.

66. DVW included a character reference in his application to the ACT government for a working with vulnerable persons check from a person whose children he was tutoring aged 9 and 11 years. The referee was aware that DVW had had his WWCCC cancelled. He was also aware of the Disqualifying Offence. NSW Police were made aware of the situation and that DVW may have been committing an offence. Ultimately, the NSW Police did not pursue the matter as it became statute barred. When cross-examined about the tutoring arrangement, DVW said he was aware that he should not have been tutoring the two children because his WWCCC was cancelled. However, he accepted the role after being persuaded to do so by the referee. He said he thought it would be allowed as the referee was a family friend he was not getting paid for the work. DVW later admitted he was paid in meals. DVW’s insight and judgement is lacking in this regard, however, this is not in our minds a persuasive factor which counts against DVW in determining whether he is a risk to the safety of children. We accept the evidence given by DVW, which explains his actions and some confusion about whether he was doing a friend a favour, or working. Our finding would have been very different, if for example, DVW was knowingly being paid for tutoring services in a more commercially structured tutoring arrangement.

Section 30 of the Act mandatory considerations

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

67. DVW is a disqualified person, having been convicted, within the meaning of the Act, of an offence listed in Schedule 2 of the Act, namely for the purpose of obtaining sexual arousal or sexual gratification, he filmed another person’s private parts without their consent contrary to s91L(1) of the Crimes Act.

68. The offence in itself is serious particularly within the context of the Tribunal’s protective jurisdiction. The victims were vulnerable young adult females from a foreign country. The maximum term of imprisonment is two years or a fine of $11,000. We accept that whilst serious, the Disqualifying Offence is at the lower end of the seriousness offence scale, it also involved a breach of trust. This is a persuasive factor in our determination.

69. Since 2014, DVW has informed various authorities that the filming of the young ladies private parts was part of a glad wrap prank. For the reasons set out above we find that this is a recent invention. No mention of this was made to Ms Duffy, the police, the Local and District Courts nor to DVW’s counsellor.

70. We accept that DVW has attempted to minimise the sexual component of the offence in order to gain similar working with children clearances in other Australian jurisdictions. Particularly in his application to the Victorian agency (Exhibit R2 page 19). We have taken into consideration that DVW pleaded guilty to the Disqualifying Offence and the facts tendered to the court in relation to the charge. However, without understanding the process undertaken by the authorities in the other states and territories, we are unable to determine the weight that was given by them to the glad wrap prank. Suffice to say, the authorities had the full set of facts to which DVW pleaded guilty when sentenced for the Disqualifying Offence. Armed with this information DVW was awarded a clearance in their respective jurisdictions. This must be a persuasive factor when considering the weight we should give to our finding concerning DVW’s recent invention concerning the glad warp prank. In these circumstances we do not find the invention of the glad wrap prank is fatal to DVW’s application having considered the totality of the evidence before us in assessing whether the onus of proof has been discharged to rebut the presumption that DVW is a risk to the safety of children.

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

71. The offence occurred on in January 2014.

72. Since that time, DVW has obtained academic qualifications and has been teaching children in other jurisdictions.

73. We also have considered the weight we have given the invention of the glad wrap prank story and its implications.

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

74. At the time of the disqualifying offence DVW was 21 years of age.

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

75. When the disqualifying events occurred the victims were approximately the same age as DVW. The victims were from overseas and were invited to stay with DVW.

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

76. There is no material difference in age between the victims and DVW.

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

77. This is not relevant.

The person’s present age

78. DVW is 27 years old.

The seriousness of the person’s criminal history and the conduct of the person since the matters occurred

79. DVW has not been charged and convicted with any other offences.

80. In 2017, DVW was the subject of a police investigation for tutoring two children despite having his WWCCC cancelled. The two children were ages 9 and 11 years between June and November 2016. The police did not charge DVW with any offence due to the offence becoming statute barred on 1 June 2017. We refer to our discussion above which has been considered in our determination.

81. DVW was warned he could not work with children. There is no evidence that he has done so.

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

82. Prior the 2014 NCAT hearing, Ms Anita Duffy, psychologist, prepared a report for DVW. She stated that on the Static-99R DVW’s level of risk is a 2.1% risk of recidivism over a 5 year period. (Moderate to low risk). DVW’s risk of reoffending is described as being very low.

83. A further report of Ms Duffy dated 11 June 2019 has been prepared for DVW in support of this application. Ms Duffy notes a total risk score of 2 was an average risk on the Static 99R scale. She notes that for every 5 years an offender is in the community without a new offence, the risk is halved.

84. At the time of the Disqualifying Offence DVW exhibited loneliness, impulsiveness and poor judgment as a result of alcohol consumption which may have been contributory dynamic factors. She identifies no current dynamic factors concerning areas of further sexual offending.

85. Ms Duffy’s opinion was not disturbed in cross-examination. In answer to questions concerning DVW’s attempts to minimise the sexual nature of his offending, Ms Duffy said that DVW was contrite from the moment it happened but now telling the story he could be minimising the sexual content. She denied this could lead to him committing similar offences and said his perception is that his behaviour was ill-judged and that he has learnt the lesson.

86. We accept Ms Duffy’s opinion that DVW’s risk of re-offending is very low. She concludes that there are no concerns that would preclude him working with children. Ms Duffy’s evidence in this regard is a persuasive factor which has led to our decision to grant DVW a WWCCC and in our overall findings.

Any order of a court or tribunal that is in force in relation to the person

87. This is not applicable.

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

88. DVW relies upon the reports of Ms Duffy and has provided a bundle of documents marked A1.

Any information in relation to the person that was obtained in accordance with section 36A

89. This is not applicable

Any other matters that the Children’s Guardian considers necessary

90. The respondent submits that DVW engaged in boundary testing prior to committing the Disqualifying Offence. He asked the young ladies sexual questions and played a game which involved taking off their clothes. Equally, DVW said the young ladies were flirtatious and were willing participants.

91. The respondent submits that DVW does not accept full responsibility for the Disqualifying Offence. He referred to the young ladies being flirtatious and engaging in sexualised talk. It is also submitted that DVW has been relying on an invention (the glad wrap prank) which minimises the sexual nature of the offence. These matters are relevant and have been taken into consideration in our determination in evaluating the totality of the evidence before us and in assessing whether the onus of proof has been discharged to rebut the presumption.

92. We accept that the invention of the glad wrap version reflects poorly on DVW and it does cast some doubt on the glowing references upon which DVW relies.

Our Consideration

93. At the time of the Disqualifying Offence DVW was 21 years of age. He is now 27 years. DVW has only been charged with one disqualifying offence which in our view, whilst serious, is at the lower end of the scale in terms of severity. The Disqualifying Offence does not involve children. The offence occurred when DVW was young, immature and where his behaviour was significantly affected by consumption of excessive alcohol.

94. We accept that DVW immediately pleaded guilty to the Disqualifying Offence. Since that time, we had found that DVW has attempted to minimise the sexual nature of the offence, particularly in seeking authorisation for working with children check clearances (or similar) in other Australian jurisdictions. Indeed he has achieved that result.

95. Generally, we find that DVW is remorseful and contrite in relation to his offending. However, given our finding on the recent invention of the glad wrap prank and his viewing of YouTube videos, this reflects poorly on his candour. Whilst DVW must fully disclose to the Tribunal any matters relevant to the application, and in our view do so honestly, we find that DVW has indeed admitted to and not resiled from the Disqualifying Offence. Whilst we have found that DVW’s motivation for the glad wrap prank must have been an attempt to minimise the sexual nature of the offence, Ms Duffy’s opinion that is does not reflect on his risk to the safety of children is persuasive. Ms Duffy concluded in her evidence that DWV’s risk to children in this regard is low.

96. We have considered submissions made by the respondent in opposing DVW’s application and the submission that he has not rebutted the presumption that he is a risk to the safety of children. We do not accept that we should refuse his application based on his attempt to minimise the sexual nature of his offending, or, because of a defect in his character.

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

98. We find that whilst DVW has attempted to place himself in the best light and in doing so has invented the glad wrap prank, which reflects poorly on his candour, he has in our view proved that he is not a real and appreciable risk to the safety and wellbeing of children. DVW is clearly an intelligent man. He has put before the Tribunal glowing references particularly in terms of his honesty. Whilst DVW has dangerously tailored his version of events concerning the glad warp prank, we accept the persuasive findings of Ms Duffy in terms of him not being a risk to children.

99. In all the circumstances, on the balance of probabilities, taking into account each of the considerations required under s30(1) of the Act, and having regard to the material before the Tribunal, it is concluded that DVW does not pose a real and appreciable risk to the safety of children. The evidence establishes that DVW has discharged the onus of as set out in s27(7) of the Act.

Section 30(1)(A) considerations

100. We have considered 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.

101. We accept and have taken into consideration the evidence of DVW and the many character references contained in the bundle marked (Exhibit A1). We have considered the police facts which relate to the Disqualifying Offence to which DVW admitted. We have considered the time which has elapsed since the Disqualifying Offence took place, and, DVW has not been the subject of any similar offences since. We have taken into account that DVW has obtained WWCCC in other Australian Jurisdictions. In having this information before them, we find a reasonable person would allow his or her child to have direct contact with DVW that was not directly supervised by another person while DVW was engaged in any child related work.

102. 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.

103. We find nothing contrary to the notion of the public interest in granting a WWCCC. We find that DVW’s right to follow his ambition of a teacher, contrasted with the protection of children, are in this instance complementary and in the public interest. DVW is performing a positive and valuable contribution to the community in many aspects. Such activity would not pose an unjustified risk to the safety of children.

104. DVW should receive a Working with Children Check clearance.

105. The order of the Tribunal is that:

1. It is declared DVW is not a disqualified person for the purposes of section 28(1) of Child Protection (Working with Children) Act 2012 (NSW) for the offence of filming another person’s private parts for the purpose of obtaining sexual arousal or sexual gratification contrary to s 91L(1) Crimes Act 1900 (NSW) entered on 5 February 2014 at the Hornsby Local Court.

2. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 10 May 2019 is granted.

3. The Children’s Guardian is to grant a working with children check clearance to DVW pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).

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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: 29 January 2020