DWE v Children's Guardian

Case •

[2021] NSWCATAD 296

•

14 October 2021

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DWE v Children’s Guardian [2021] NSWCATAD 296
Hearing dates: 11 August 2020
25 November 2021
Date of orders: 14 October 2021
Decision date: 14 October 2021
Jurisdiction:Administrative and Equal Opportunity Division
Before: E Connor, Senior Member (11 August 2020)
S Higgins, Senior Member (25 November 2020)
F Given, General Member (11 August and 25 November 2020)
Decision:

(1) The decision of the respondent, made on 3 April 2019, to cancel the applicant’s working with children check is set aside.

(2) In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance.

Catchwords:

ADMINISTRATIVE LAW – Child protection – cancellation of working with children check clearance following a risk assessment by the respondent – whether the applicant poses a risk to the safety of children

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Child Protection (Working with Children) Act 2012 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)(Repealed)

Cases Cited:

BKE v Office of Children’s Guardian [2015] NSWSC 523

BSR v NSW Children’s Guardian [2015] NSWCADAD 264

CHB v Children’s Guardian [2016] NSWCATAD 214

Commission for Children and Young People v V [2002] NSWSC 949

Commissioner for Children and Young People v FZ [2011] NSWCA 11

CYC v Children’s Guardian (No 2) [2017] NSWCATAD 262

Holbrook and Australian Postal Commission (1983) 5 ALN N46

Office of the Children’s Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139

Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303

Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184

ZZ v Secretary, Department of Justice [2013] VSC 267

Category:Principal judgment
Parties: DWE (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
P Lowson (Respondent)

Solicitors:
Applicant self-represented
Crown Solicitor (Respondent)
File Number(s): 2019/00127309
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

  1. The applicant, DWE is 24 years of age and seeks review of the decision of the Children’s Guardian (the respondent) to cancel his working with children check clearance (clearance). The decision was made on 3 April 2019, under s 23(1) of the Child Protection Working with Children Act 2012 (NSW) (WWC Act), because the respondent was satisfied that the applicant posed a risk to the safety of children.

  2. There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant’s application: WWC Act, s 27.

  3. The role of the Tribunal is to determine the correct and preferable decision having regard to the material before it and the applicable law: Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 63(1) and (2). The orders the Tribunal can make include an order affirming the decision of the respondent, varying that decision, setting the decision aside and making a new decision in substitution thereof, or setting the decision aside and remitting the matter to the respondent for reconsideration: ADR Act, s 63(3).

  4. The principal issue for determination in this application is whether, as at the date of hearing, we are satisfied, on the balance of probabilities, that the applicant poses a real and appreciable risk to the safety of children. If we are so satisfied we must affirm the decision of the respondent, as a clearance cannot be granted subject to conditions. If we are not so satisfied, before we can make an order setting aside the decision of the respondent, we must also be satisfied of the matters in s 30(1A) of the WWC Act; namely, 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.

  1. The applicant contends that he does not pose any risk to the safety of children in that he has addressed the issues of concern arising from his offending conduct in 2015.

  2. The respondent opposes the application in that she submits that the applicant does pose a risk to the safety of children, or alternatively, the matters in s 30(1A) are not satisfied.

Background to the application

  1. In June 2017, when the applicant was 20 years of age, he was issued with a clearance to undertake child-related work as a volunteer. Later that year, the applicant’s clearance included paid child-related work.

  2. In May 2018, the applicant was charged with six offences that were alleged to have occurred in January 2015 and involved a 12 year old girl. The applicant was charged with three offences of sexual assault of a person between 10 and 14 years, an offence of attempted sexual assault of a person between 10 and 14 years and two offences of indecent assault of a person under the age of 16 years: Crimes Act 1900 (NSW) (Crimes Act) (as it applied in January 2015), ss 66C(1) and 61M(2).

  3. In August 2018, the respondent imposed an interim bar on the applicant’s clearance after she was informed of the charges laid against the applicant: WWC Act, s 17. That bar prohibited the applicant from engaging in any child-related work. The respondent also advised the applicant that she would be conducting a risk assessment in relation to his current clearance status: WWC Act, ss 14 and 15.

  4. In June 2019, the applicant entered a plea of guilty, in the Children’s Court, to the two indecent assault charges and a further indecent assault charge. The further indecent assault charge was laid in substitution for one of the sexual assault charges. On the same day, the four sexual assault charges were withdrawn. In December 2019, the indecent assault charges were dismissed under s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW)(repealed) (MH(FP) Act), as it applied at that time. This order was made after the applicant was diagnosed with Autism Spectrum Disorder (ASD). The order was also subject to the applicant complying with a Treatment Plan that included:

  1. continuing treatment with Dr Cheryl Choong for as long as Choong deemed it necessary; and

  2. attendance at fortnightly appointments with Kyle Bodenham (Occupational Therapist) until otherwise directed.

  1. As we have noted above, the respondent cancelled the applicant’s clearance in April 2019.

  2. There is no evidence of the applicant having offended prior to the January 2015 trigger offending or that he has offended thereafter, which is one of several matters we must take into account, as was the respondent before us, in determining whether, as at the date of hearing, the applicant poses a real and appreciable risk to the safety of children: WWC Act, s 15(4) and 30(1).

Proceedings before the Tribunal

  1. The applicant lodged his application for review on 24 April 2019. His application was adjourned on a number of occasions due to the criminal proceeding having not been finalised.

  2. On 4 June 2020, the Tribunal made an order listing the applicant’s application for hearing on 30 June 2020. On the application of the respondent, on 24 June 2020, the Tribunal vacated the hearing date and made orders for the filing and serving of additional material.

  3. On 2 July 2020, the Tribunal made an order listing the applicant’s application for hearing on 11 August 2020.

  4. On 11 August 2020, the applicant’s application came before Senior Member Connor and General Member Given for hearing. The applicant and counsel for the respondent appeared at the hearing via audio visual-link. The hearing proceeded with the Tribunal identifying the documents relied on by the applicant and the respondent. The applicant was sworn to give evidence and Senior Member Connor invited him to make an opening statement as to why he should be given a clearance. During the course of the applicant’s explanation a number of technical issues arose in that the video connections were poor. At times, the applicant’s connection dropped out completely and he could not be heard or seen.

  5. Various steps were taken to rectify this and counsel for the respondent commenced cross-examining the applicant. Eventually, the video connections became unworkable and, with the consent of the applicant and counsel for the respondent, the Tribunal adjourned the proceedings, part heard, to 25 November 2020.

  6. Subsequent to the hearing of 11 August 2020, Senior Member Connor became unavailable. On 6 October 2020, the Tribunal Registrar wrote to the applicant and the respondent to advise that Senior Member Connor had become unavailable and the President proposed to replace the Senior Member with Senior Member Higgins, pursuant to s 52 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The applicant and the respondent were also invited to make any submissions about the proposed replacement.

  7. In the absence of any objections, on 19 October 2020, Judge S Cole, Acting President at the time, made a decision under s 52, to replace Senior Member Connor with Senior Member Higgins.

  8. The adjourned hearing proceeded, by audio-visual link, before us on 25 November 2020. During the course of the hearing, for abundant caution, and in the interest of justice we issued a certificate under s 128 of the Evidence Act in regard to the evidence given by the applicant about having worn a body camera while working as a security guard.

  9. At the conclusion of the hearing, on 25 November 2020, we reserved our decision.

The WWC legislative scheme

  1. The objects of the WWC Act are 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 a working with children check clearances: see WWC Act, ss 3, 8 and 9.

  2. Section 4 of the WWC Act provides that the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration’ in the operation of that Act.

  3. The word ‘children’ is defined to mean persons under the age of 18 years: WWC Act, s 5(1).

  4. The expression ‘risk to the safety of children’ is defined to be a reference to ‘a real and appreciable risk to the safety of children’.

  5. Child-related work is broadly defined in ss 6 and 7 of the WWC Act. A clearance is not granted for a specific category of child-related work. Once granted, it is a clearance for any child-related work: see BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 at [27].

  6. A clearance cannot be granted subject to conditions and once granted it ceases to have any effect after five years, unless sooner cancelled or surrendered: WWC Act, s 22(1).

  7. Section 23(1) of the WWC Act, provides that the respondent must cancel a person’s clearance if she ‘is satisfied that the person poses a risk to the safety of children.’

  8. Section 15(1) of the WWC Act provides that, where the respondent becomes aware that a holder of a clearance is subject to a ‘risk assessment requirement’, she must conduct ‘a risk assessment of …the holder of a clearance

  9. Section 14 of the WWC Act provides that a person is subject to an ‘assessment requirement’ if any of the matters specified in Schedule 1 apply to that person (the assessment requirement triggers).

  10. In this application, the applicant became subject to a risk assessment by reason of the charges that had been laid against him in 2018: WWC Act, Sch 1 cl 1(1)(a). That is, the laying of the charges were proceedings commenced against the applicant for offences specified in cl 1 of Sch 2 and were committed by him when he was a child. Clause 1(1)(a) goes on to provide that this clause applies regardless of the outcome of the proceedings.

  11. Section 15(4) and (4A) sets out the matters the respondent may take into account in making an assessment.

  12. Where, on the grounds of the person being subject to an ‘assessment requirement’ under s 14 of the WWC Act, the respondent cancels that person’s clearance, under s 23(1) of the WWC Act, that person has a right to seek review by the Tribunal under s 27(2) of the WWC Act.

  13. Section 27(4) requires an applicant to fully disclose to the Tribunal any matters relevant to their application.

  14. Section 30(1) sets out what the Tribunal must consider in its assessment of the applicant as to whether it can be satisfied that he poses a risk to the safety of children. That section provides as follows:

30   Determination of applications and other matters

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

(a)  the seriousness of the … matters that caused a refusal of a clearance or imposition of an interim bar,

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

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

(d)  the age of each victim of any relevant … 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 criminal history and the conduct of the person since the matters occurred,

(i)  the likelihood of any repetition by the person of the … 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.

  1. As we have already noted, if the Tribunal is satisfied that an applicant does not pose a real and appreciable risk to the safety of children and it considers making an order setting aside the decision of the respondent and substituting it with a decision to grant the applicant with a clearance, the Tribunal must consider the two part test in s 30(1A), which is in the following terms:

(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.

  1. Section 30(1A)(a), requires the application of an objective standard based on the views of the ‘reasonable person’. It assumes that the ‘reasonable person’ is acquainted with all the relevant facts of which the Tribunal is aware: CYC v Children’s Guardian (No 2) [2017] NSWCATAD 262, at [26] and CHB v Children’s Guardian [2016] NSWCATAD 214, at [127].

  2. In assessing the public interest under s 30(1A)(b), priority is to be given to the broader interests of the community over private interests: CYY, at [75] and Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184. Regard should also be had to the rehabilitation of offenders: ZZ v Secretary, Department of Justice [2013] VSC 267 at [202], and the right of a person to engage in work and in community affairs and to have contact with children where they possess the appropriate skills and experience: CYY, at [75].

The material before the Tribunal

  1. The applicant relied on the following material in support of his application:

  1. documents attached to an email the applicant sent on 23 April 2020 (Ex A1), which included:

  1. a Specialist Paediatric report of the victim, dated early 2018;

  2. a Psychological Evaluation Report of the applicant, by Thea Gumbert-Jourjon, dated August 2019;

  3. a Diagnostic Assessment Report for the applicant, dated July 2019, by Dr Nicole Mathieson and Dr Fiona Aldridge;

  4. a copy of the s 32(3)(a) MH(FP) Act order made by the Children’s Court in December 2019; and

  5. a copy of the transcript of the hearing before the Children’s Court when the abovementioned order was made;

  1. a report, dated April 2020, by Darren Bartlett, Clinical Psychologist. Mr Bartlett assed the applicant in support of the applicant’s application to have his firearms licence restored to him (Ex A2). The licence was revoked following the December 2019 orders of the Children’s Court under s 32 of the MH(FP) Act;

  2. a copy of a letter, dated May 2020, from Kyle Bodenham, Mental Health Occupational Therapist of Excel Therapy Collective, in regard to the therapy sessions the applicant had attended (Ex A3); and

  3. a statement of the applicant setting out his background, his relationship history, his account of the 2015 offending (Ex A4).

  1. The respondent relied on the following material:

  1. a large bundle of documents being the document filed and served under s 58 of the ADR Act (statement of reasons and every document the respondent considered to be relevant to the determination of the applicant’s application) (Ex R1);

  2. a further copy of the transcript of the hearing before the Children’s Court when the abovementioned order was made (Ex R2);

  3. a further copy of the Diagnostic Assessment Report for the applicant, dated July 2019, by Dr Nicole Mathieson and Dr Fiona Aldridge and Dr Thea Gumbert-Jourjon (Ex R3);

  4. documents produced, pursuant to summons, by CHC Medical and Dr Kyle Bodenham (Ex R4) ;

  5. an email, sent on 22 April 2020, between the solicitors of the respondent attaching a list of documents that had been filed in the proceedings and which the respondent considered to be relevant to be provided to the expert engaged by the applicant (Ex R5);

  6. documents produced, pursuant to summons, by Dr Joel Ascence (Ex R7); and

  7. a small bundle containing communications between the respondent’s solicitor and the applicant in regard to the respondent’s June 2020 adjournment application and the applicant’s objection to some of the material filed and served by the respondent (Ex R8).

  1. The respondent also filed and served written submissions.

  2. At the commencement of the hearing, we heard the applicant in regard to his objections, but disallowed them and accepted into evidence the material he objected to and noted that it was being admitted subject to weight.

  3. The applicant gave oral evidence on both days of hearing and he was cross-examined by counsel for the respondent.

The trigger event

  1. The applicant’s plea of guilty to the three indecent assault charges was based on a Statement of Agreed Facts (Ex R1, p126). These charges were identified as sequence 1, 7 and 6.

  2. The Statement of Agreed Facts noted that, in late 2014, the victim registered for the social media application MeetMe. She created a profile in her name. In completing her online registration, the victim selected her age as being 16 years old, however next to her name within her profile she wrote, ‘I am actually 12’.

  3. Not long after the victim had registered on the app, the applicant began communicating with her via the app, however he did not tell her his name.

  4. As time went on, the applicant began to become sexually explicit with the victim, eventually asking her for nude photographs, which the victim declined. The applicant sent the victim a picture of his penis, which she told him never to do again. They continued conversing via the app and made a plan to meet in person the following day. They exchanged phone numbers via the app and agreed to meet at the railway station near the victim’s home, at around 10.30am, the following day.

  1. On the day in question, the victim took her dog for a walk around the railway station when she and the applicant spoke via mobile phone to locate each other. The victim saw the applicant inside a small black car – she recognised him from the photos he had sent.

Sequence 1: indecent assault of child under 16 years

  1. In regard to the first indecent assault charge, the Statement of Agreed Facts noted that the applicant got out his car and greeted the victim. They kissed on the lips and as the victim’s dog kept running away, the applicant suggested that they move to the car. They got into the car and kissed again, but the victim’s dog was disruptive. The applicant suggested they go to the victim’s house. The victim felt uncomfortable but told the applicant where she lived. They kissed again and drove to the victim’s house. The applicant again began kissing the victim. She left the car and went into her house with the dog. She left the front door open. Moments later the applicant entered the house behind her and asked the victim, ‘do you want to shower with me?’ The victim replied ‘No’.

  2. The victim and the applicant entered the bedroom towards the rear of the victim’s house and removed their clothes.

Sequence 7: indecent assault of child under 16 years

  1. The applicant followed the victim out of the bedroom and into the living room. The applicant began to kiss the victim before taking her hand and leading her back into the bedroom. Once back in the bedroom, the applicant commenced squeezing the victim’s breasts and kissing her on her lips and face as the victim lay on her back on the bed. The applicant continued kissing the victim and as he kissed her on her genitals, the victim said: ‘What are you trying to do? I’m not interested in that’. The applicant stopped and moved his body on top of the victim’s body.

Sequence 6: indecent assault of child under 16 years

  1. As the victim lay on her back, the applicant began to grind his penis on top of the victim’s body. The applicant ejaculated on the lower region of the victim’s body. The victim cleaned herself and told the applicant to get dressed and leave. Once he had left the victim told a friend what had occurred and the friend suggested she contact police. The victim called 000.

Subsequent events

  1. On the same day, police attended the home of the applicant and commenced a crime scene analysis. Fingerprints were located and forensically analysed and compared with those on the national fingerprint database – no match was found.

  2. The victim was also taken to the local Children’s Hospital where she underwent forensic sexual assault investigation procedure. The victim was noted to be Tanner Stage 5 of pubertal development for breasts and genitalia. She was 5’ 8” tall.

  3. Four days later, the victim participated in an electronically recorded interview with investigators attached to the Child Abuse Squad.

  4. At the request of the victim and her mother, Police ceased investigating the matter in May 2015.

  5. In March 2017, the fingerprints of the applicant, taken for the purpose of his application for a security licence, were matched with those on the Police database in regard to the 2015 alleged offending.

  6. In early 2018, Police again contacted the victim and her family. As she was older (i.e 15 years), she agreed to criminal proceedings being initiated by Police.

  7. In May 2018, Police telephoned the applicant and requested that he attend the local police station in regard to the alleged offending. That evening, the applicant went to the local police station. He was place under arrest and was electronically interviewed. He admitted to using ‘MeetMe’. He said he had been intimate with several women in early 2015 and denied knowing the victim. He also said he had never entered the house of the victim. When presented with evidence of his fingerprints having been found at the house he did not provide an explanation. The applicant agreed to swabs being taken, which were subsequently found to match those that were taken at the victim’s house in early 2015.

December 2019 Hearing

  1. At the hearing before the Children’s Court in December 2019, was the Assessment Report of Drs Nicole Mathieson and Fiona Aldridge and the report of Dr Thea Gumbert-Jourjon.

  2. In their report, Dr Mathieson and Dr Aldridge, said that, following a comprehensive assessment and qualitative analysis of the applicant’s presentation at that time, he was found to meet the criteria for a DSM-5 diagnosis of Autism Spectrum Disorder (299.00 DSM 5) (Ex R3, p1). There were three levels of support for such a diagnosis that ranged from requiring support (Level 1), requiring substantial support (Level 2) and requiring substantial support (Level 3).

  3. Based on the assessment of the applicant, Drs Mathieson and Aldridge were of the opinion that the applicant would require substantial support in terms of his social interaction and social communication difficulties (Level 2). He also required support in terms of his restricted and repetitive interests, activities and behaviours (Level 1). As a result of the applicant’s diagnosis and difficulties, Drs Mathieson and Aldridge said that the applicant had a number of support and intervention needs and a number of recommendations were made in this regard; including:

  1. psychological intervention and social skills training by a psychologist;

  2. disability Employment Services in order to successfully enter and remain in the workforce;

  3. regular Psychiatric Review by a psychiatrist;

  4. further cognitive assessment by a psychologist; and

  5. meeting up with other individuals that have similar difficulties to further develop his social skills.

  1. In her report (Ex R3, p12), Dr Gumbert-Jourjon noted that in their assessment of the applicant, Drs Mathieson and Aldridge had noted that:

… [he] would require ‘substantial support’ (Level 2 severity) for social and communication difficulties while requiring less extensive support in other areas. An assessment of adaptive functioning also indicated that [the applicant’s] overall living skills were in the Extremely Low range …. … [the applicant’s] ‘responses and overall demeanour were of an individual much younger that his 22 years of age’.

  1. At [Ex R3, p13], Dr Gumbert-Jourjon said:

[The applicant’s] presentation and social interaction style is consistent with his recent diagnosis of Autism Spectrum Disorder (ASD). ASD is characterised by deficits in social communication and interaction, as well as restricted and/ aor repetitive behaviours and interests. Given the difficulties that people with ASD encounter, they commonly experience co-morbid mood or anxiety disorders, and this also appears to be the case for [the applicant] who reports prior diagnosis off Panic Disorder and Social Anxiety Disorder, with ongoing and significant distress associated with features of social and generalised anxiety. It is likely that his background of childhood abuse, as well as social and educational deprivation, have exacerbated his social deficits and also increased his vulnerability to mood and anxiety disorder.

Based on the above diagnosis, it is my opinion that [the applicant] is a person suffering from a mental condition for which treatment is available, and is not “mentally ill person” as defined in section 14 of the Mental Health Act 2007. As such, he is eligible for diversion pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990. I also opine that [the applicant’s] ASD diagnosis is relevant to his offending. He impresses as a naïve, socially immature and unsophisticated young man who appeared to be genuinely surprised and bewildered by his situation. He provided a credible account of his offending behaviour, maintaining that he was unaware of the victim’s age and believed he was involved in a consensual sexual encounter with a girl of his own age. It was my impression that he was honest in his account and his social deficits as well as general immaturity factors in his offending behaviour.

Given the lack of any established pattern of and antisocial behaviour: or any known problematic or sexually assaultive behaviour outside of the index offence, I find that [the applicant] would be at low risk of similar offending in the future. In terms of potential protective factors, he shows insight into his social deficits and is motivated to engage with skill training. He also expressed remorse for the offence and any intention to avoid similarly risky situations.

  1. At the hearing before the Children’s Court, in December 2019, the prosecutor agreed that it was open to the Court to make an order under s 32 of the MH(FP) Act in regard to the applicant’s offending. That section relevantly provides as follows:

32   Persons suffering from mental illness or condition or cognitive impairment

(1)  If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a)  that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

(i)  cognitively impaired, or

(ii)  suffering from mental illness, or

(iii)  suffering from a mental condition for which treatment is available in a mental health facility,

but is not a mentally ill person, and

(b)  that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,

the Magistrate may take the action set out in subsection (2) or (3).

(2)  …

(3)  The Magistrate may make an order dismissing the charge and discharge the defendant:

(a)  into the care of a responsible person, unconditionally or subject to conditions, or

(b)  on the condition that the defendant attend on a person or at a place specified by the Magistrate:

(i)  for assessment or treatment (or both) of the defendant’s mental condition or cognitive impairment, or

(ii)  to enable the provision of support in relation to the defendant’s cognitive impairment, or

(c)  unconditionally.

(3A) …

(6)  In this section:

cognitive impairment means ongoing impairment of a person’s comprehension, reasoning, adaptive functioning, judgment, learning or memory that materially affects the person’s ability to function in daily life and is the result of damage to, or dysfunction, developmental delay or deterioration of, the person’s brain or mind, and includes (without limitation) any of the following:

(a)  …

…

(f)  autism spectrum disorder.

  1. In making the order sought, the Magistrate noted that conditional orders made under s 32 of the MH(FP) Act were only enforceable for six months. In making the order sought the Magistrate said (Ex R2, p4):

The issue in dispute is the second limb. This calls for a discretionary judgement in line with s 32(1)(b) that on an outline of the facts alleged in the proceedings or such other evidence as is considered relevant, it would be more appropriate to deal with the young person in accordance with the provisions of this part otherwise in accordance with the law. … the Act requires a magistrate to balance the public interest in those charged with criminal offences facing the full weight of the law against the public interest treating or regulating to the greatest extent practical the conduct of individuals suffering from any of the mental conditions referred to in s 32(1) with the object of ensuring that the community is protected from the conduct of such persons.

The objective seriousness of the offending conduct is a requirement for consideration … There are a number of factors that the Court needs to ultimately consider in balancing the two public interests. The seriousness and circumstances of the alleged offending, an offence under s 61M(2) carries ten years. There are three distinct acts. The complainant was 12, it was an offence in her home. The offence date was {x} January 2015 so coming up to 5 years ago and the Court, as I have noted, has no criminal history prior will sense.

The degree to which the young person is disabled from being able to control his conduct or whether there is this causal connection, it is not overtly strong causal connection but it is difficult when there is a significant passing of time between the alleged offending and the preparation of the reports may well be stronger than what is set out but certainly there is some at least casual connection particularly around the aspects of communication. …

  1. Other factors taken into account by the Magistrate were:

  1. the public interest in punishment being imposed for the protection of the community (i.e. deterrence);

  2. the public interest in rehabilitation; and

  3. recognition of the capacity of young persons to reform and mould their character to conform to society’s norms through rehabilitation and treatment.

  1. As we have noted above, at [10], in making the order sought the applicant was required to continue treatment with Dr Cheryl Choong for as long as Choong deemed it necessary, and continue attendance at fortnightly appointments with Kyle Bodenham until directed otherwise.

Evidence of the applicant

  1. In his statement (Ex A4), the applicant gave an explanation of the many difficulties of his childhood. He said his parents had unusual religious beliefs and he was isolated and abused by them. His parents moved regularly between states and often lived on a farm isolated from others. Except for a very short period of time, he had no form of education and could not read or write. His parents punished him severely with beatings and being denied food. He said that in his early teenage years his parents became increasingly more aggressive towards him and he would often have outbursts towards them if they tried to punish him. He said he would be physically abused by his parents about twice a week

  2. When he was about 15 years of age, his father attacked him early one morning. He was again attacked later that day and was told by his parents that they never wanted to see him again. He was sent to the home of a family friend. His grandparents, who he had always felt comfortable with as a young child, came and collected him. He said his grandmother helped him to get into TAFE to do year 11. He said that, at 17, after he finished year 11, he tried joining the Defence Force, because he had a strong urge to ‘learn discipline, improve my life skills and serve my community’. He said his parents contacted Defence Recruiting and prevented him from joining.

  3. He said he left his grandparent’s home at 17 years of age and started work as a real estate assistant. He said he was often bullied. It was around this time that he met a psychologist at the local hospital, who helped him with his social anxiety. He said he found the psychotherapy to be effective and made a big difference to his anxiety. However, he found that the medication was not very helpful and also had side effects.

  4. At 18, the applicant left his real estate job, moved back to live with his grand parents for a short time and then left to train as a security guard. He said that he found that he was very good at this job and those he worked for were happy with his work. He said he began travelling and working for multiple companies and that he was still doing social skills training, as he would like to improve his skills further.

  5. In regard to his relationship history, the applicant said he has always been attracted to girls around his own age, or often older as he has found them to be more mature and easy to communicate with. He said his first ‘real physical encounter’ was with the victim in 2015. However, he said they ‘never had sex’, because ‘I didn’t feel like I was ready to have sex and I wanted to get to know someone before doing anything with them’. He said he has had a few relationships since then, but more recently has not sought a relationship, because he wants to focus on building a career.

  6. In regard to the offending conduct, the applicant said he was unaware of the victim’s real age. He said he thought she was 16, as registered by her. She also looked that age from photos she had posted and when he met with her on the day in question.

  7. He said, what happened that day occurred as a result of the victim’s initiative and not his. He said he felt pressured into doing what he did. He said what was contained in the Statement of Agreed Facts is not exactly what happened that day, as he had to make some compromises when reaching a plea agreement.

  8. He said that when being interviewed by Police in May 2018, he answered questions as honestly as possible. He said that at the start of the interview he had no idea what they were talking about. However, towards the end of the interview some of the details sounded familiar about someone he had met around the relevant time. He said he did not recall the victim’s name. Subsequently, after reading the brief of evidence and seeing the photographs, he started recalling some further details of the event that had occurred previously, almost five years ago. He said he recollected the height of the victim and her hyperactive dog. Again, he said he recollected feeling pressured at the time to do something he was not ready for and that he had made an honest mistake about the victim’s age.

  9. At the conclusion of his statement the applicant made the following submissions:

  1. he understands that he made a significant mistake as a child with regards to the trigger offence – a mistake that has cost him a great deal of stress, anxiety and financial loss;

  2. his childhood was traumatic and his psychological development was severely limited which had a direct causal relationship to the mistake he made;

  3. the offending occurred two years after his first time interacting with anyone outside of his family – he was 17 years of age;

  4. he greatly regrets the mistake he made and he has taken every precaution to ensure that he does not make the same mistake again;

  5. the offencees were committed as a result of an honest mistake; and

  6. his ASD does not place him at any risk of committing any offence, he is high functioning and capable of making rational and informed decisions.

  1. In his oral evidence, the applicant reiterated that he believed that the victim was 16 years of age, that he made a mistake in regard to her age and had he had a different upbringing he would have been more mature at the time and acted differently.

  2. During cross-examination, the applicant advised that he was in Western Australia and working in the mining industry. He had been there since early 2020 and was reluctant to provide any details about his employer, as he did not believe that this was of any relevance to his application.

  3. He said he was not looking to do any child-related work, but wanted to keep his options open in case an opportunity arose.

  4. He had not been doing any security work, or work with children while in Western Australia. However, in his previous security work he did work in circumstances where children (i.e. teenagers) were present.

  5. He explained that his firearms application was still under review by the Firearms Registry. He said his firearms licence was cancelled because of the December Children’s Court orders. He said he had a pistol club membership at the local club where he had been living. He said that his firearms licence had been issued in December 2018.

  6. He said he did not learn to read until he was 15 years of age and only attended formal schooling while he was living with his grandparents and doing year 11 at TAFE. He did not complete year 12.

  7. He said he started using dating apps when he was 16 and attending TAFE.

  8. The applicant was asked a number of questions in regard to the trigger event and other events, involving the applicant and recorded in documents obtained by the respondent from Police and Family and Community Services. We have dealt with this evidence, to the extent relevant, below.

Consideration

  1. The jurisdiction of the Tribunal in reviewing a decision of the respondent made under that Act is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61].

  2. In an application under s 27 of the WWC Act, there is no presumption that the applicant poses a risk to the safety of children by reason of his offending.

  3. In these proceedings, neither party bears a burden of proof. However, a practical or ‘forensic’ burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: BSR v NSW Children’s Guardian [2015] NSWCADAD 264, at [17]; Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.

  4. Where a matter requires proof it should be proved to the civil standard, on the balance of probabilities: BKE, at [33]; BSR, at [18]; Office of the Children’s Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139.

  5. As we have noted, the term ‘risk to the safety of children’ is defined in s 5B of the WWC Act to mean a ‘real and appreciable risk to the safety of children’. The Tribunal has also accepted the guidance provided by Young EJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949, at [42], as to the meaning of risk:

…[what] one is looking for is whether, in all of 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 children. One, however, must link the word ‘risk’ with the words that follow, namely, ‘to the safety of children’.

  1. In CXZ v Children’s Guardian [2020] NSWCA 338, at [26], it was noted that the Tribunal must consider whether a clearance, if granted, will create a ‘real and not fanciful’ risk to the safety of children.

S 30(1) matters

(1)(a:) the seriousness of the offences with respect to which … a refusal of a clearance or imposition of an interim bar

  1. It was the applicant’s 2015 alleged offending that caused the imposition of an interim bar and the subsequent cancelation of his clearance.

  2. We accept that the alleged offending and the offending to which the applicant pleaded guilty, was very serious as the offending related to offences specified in Sch 2 of the WWC Act (i.e. disqualifying offences) and involved a child who was 12 years of age. The applicant was not a disqualified person by reason of the allegations and the offences he pleaded guilty to, because he was also a child at the time.

  3. The applicant has at all times said that he was unaware that the victim was 12 years of age. He accepted what was on her profile and that she looked that age when he met with her. The Statement of Agreed Facts is consistent with this.

  4. In regard to the offences to which the applicant pleaded guilty, it is the applicant’s evidence that it was the victim and not he who initiated what happened on the day in question.

  5. The applicant pleaded guilty to the Statement of Agreed Facts and it is not for us to look behind these. In regard to the four sexual assault charges that were withdrawn, as we have noted, one of these charges (charge number 5, or sequence 5) was substituted with an indecent assault charge. That is, the facts underlying the alleged offence of sexual assault in charge number 5 was substituted with a new charge of indecent assault (sequence 7).

  6. In regard to the sexual assault charges that were withdrawn, we make no findings in regard to these other than to note that they were made.

  7. The 2015 offending (including the alleged offending for which the charges were withdrawn) occurred on the one occasion, during the middle of the day, on the one occasion the applicant met with the victim. That is, it did not occur over several days or over a period of time. Hence, while the offending was serious, as conceded by the respondent, the offending was not of such seriousness that warranted a custodial sentence, had the s 32 MH(FP) Act orders not been made.

  8. Accordingly, we find that the applicant’s trigger offending was serious but at the lower end of the scale of seriousness for such offences.

(1)(b) and (c):  the period of time since those offences or matters occurred and the conduct of the person since they occurred and the age of the person at the time the offences or matters occurred

  1. It is more than 5 years since the applicant’s 2015 offending. At the time of his 2015 offending the applicant was 17 years of age.

  2. Shortly after this offending the applicant came to the attention of Police after he had been approached and followed in a shopping centre by two males and a female, who were known to him (Ex R1, p 153 and Ex R8, p 28). The applicant is recorded as having become fearful of being assaulted by the males and female so he reached into his back pocket and removed a 15cm taser that was disguised as a torch. The applicant lunged at one of the males and struck his arm. The Shopping Centre Security intervened and Police were called. Police seized the taser (a prohibited weapon) and the applicant explained that he had purchased the taser on line from the USA. The applicant was not charged but received a ‘youth caution’ and was made subject to an apprehended personal violence order (AVO) for the protection of a girl who was 15 years of age and was known or related to the males and female who had followed him (Ex R8, p19). We understand that the girl was someone the applicant had met, via a dating app, the previous year. The applicant and the girl had exchanged text messages and it was alleged that the applicant had sent offensive and sexualised text messages to the girl. In his oral evidence, the applicant said it was not he who sent the messages – it was a friend of his.

  3. Police took no further action against the applicant and there is no evidence of the applicant having breached the AVO.

  4. In her written submissions, the respondent pointed to allegations of a similar kind having been made against the applicant in late 2015 and early 2016 (Ex R1, p 66-91). These incidents are recorded in documents provided to the respondent from Family and Community Services. The documents are heavily redated and it is not possible for us to make any conclusive findings in regard to conduct by the applicant concerning the girl the subject of the recordings. The applicant did however, acknowledge, to Police, in his May 2018 interview, that he had met another girl around that time on a dating app. He said he thought she was 17 years of age and that he did not have sexual intercourse with her. He also said that he stopped having any contact with the girl after her mother told him to stay away.

  5. As noted above, some time in late 2015 or early 2016, when he was 18 years of age, the applicant moved interstate and became a security guard. During the course of the hearing the applicant said that on four to five occasions when he was working as a security guard for a club function, or a music festival he wore a body camera.

  6. As we have noted, we issued a certificate under s 128 of the Evidence Act in regard to this evidence and his explanation as to why and when he wore it. He said he spoke to Police about wearing the camera and they told him it was ‘OK’ if he did not allow anyone else to have access to it. He said that he uses the camera to view incidents generally.

  7. At the time of the hearing, the applicant was living in Western Australia and not in a relationship. He said he had decided to pursue a career, rather than a relationship.

(1)(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

  1. The victim was 12 years old and especially vulnerable because of her age.

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

  1. There is a five-year difference in age between the applicant and the victim. They are not related, but had met through a social media app.

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

  1. In his interview with Police in mid 2018, the applicant said he did not recollect the incident in early 2015. When told that the victim of this incident was 12 years of age, the applicant said: ‘I don’t remember ever doing anything with someone that young and I definitely wouldn’t have knowingly done it’ (Ex R1, p 421). In these proceedings, as noted above, the applicant has continued to say that he did not know that the victim was 12 years of age.

  2. As noted above, when registering on the ‘MeetMe’ app the victim selected her age as being 16, but in her profile, the applicant said she was actually only 12 years of age. We understand that it is the registered age that is immediately apparent on the app.

(1)(g) and (h):  the person’s present age and the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

  1. At the time of hearing the applicant ‘s application, he was 23 years of age.

  2. The applicant is still a young man and his only offending is the trigger offence. That is, the applicant’s criminal history is limited to one event in 2015.

  3. However, he has come to the notice of Police in regard to his possession of a taser and Family and Community Services in regard to a young girl he knew and also met on a dating app. These events also occurred more than four to five years ago.

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

  1. In his evidence before the Tribunal the applicant readily acknowledged his ASD diagnosis. He said that his disability made it difficult for him to judge people’s emotions. That is, he understands what another person is saying, but has difficulty in assessing how that person is actually feeling. Having been made aware of this difficulty in 2019 in the course of his criminal proceedings for the 2015 trigger event, he now asks more questions and checks on the age of any female he is dating and in situations of intimacy he makes sure that there is consent.

  2. The respondent submits that we could not be persuaded, on the material before us, that there was little or no likelihood of the applicant reoffending as he had in 2015. In this regard the respondent noted that, in making the order under s 32 of the MH(FP) Act, the Children’s Court had found that there was a causal connection between the applicant’s 2015 offending and his ASD. It is accepted noted that the Court had found that there was not an ‘overly strong causal connection’ (Ex R2, p 4 which is set out at [66] above), but nevertheless existed. Hence, given the applicant’s reliance on his ASD as contributing to his trigger offending, the respondent contended that his ASD is of itself a risk of further offending, unless the applicant could demonstrate otherwise. In this regard the respondent noted that the applicant had failed to provide a forensic risk assessment and his failure to provide evidence of his compliance with the orders made by the Children’s Court for ongoing treatment.

  3. The applicant said he had made enquires about obtaining a forensic risk assessment, but the cost was more than he could afford. We note that there is no statutory requirement for an applicant to provide such a report and while a report of this kind can be of assistance, they are not essential and ultimately it is for the Tribunal to determine, as a mater of fact, on the material before it as to whether it can be satisfied that the applicant poses a real and appreciable risk to the safety of children.

  4. In the absence of a forensic risk assessment, the applicant relies on the reports of Dr Gumbert-Jourjon, Drs Mathieson and Aldridge and the more recent report of Darren Bartlett, clinical psychologist and Mr Kyle Bodenham. It was his evidence that he had been told by Dr Gumbert-Jourjon, Mr Bartlett and Mr Bodenham that he did not need to undergo any further consultations.

  5. We note, in her August 2019 report (see at [64] above), Dr Gumbert-Jourjon, found that the applicant was at low risk of similar offending in the future. In her opinion, the applicant had shown remorse and insight into his social deficits and he was motivated to engage with the necessary skills training. Dr Gumbert-Jourjon assessment was more than 4 years after the offending conduct had occurred. There is no evidence of any change to the applicant’s wellbeing and further progression into adulthood.

  6. In April 2020, Dr Bartlett was of a similar view. While the circumstances and the legislative provisions differed, the matters in issue included a question as to whether, by reason of his 2015 offending, the applicant was a risk to public safety. Police had revoked the applicant’s firearms licence following the December 2019 orders of the Children’s Court. In April 2020, Mr Bartlett provided a psychological report to police in support of the applicant’s application for the re-issue of his firearm license. In his report, Mr Bartlett’s opinion was as follows (Ex A2, p4):

Opinion on the ability to exercise me desired control and responsibility over firearms

In summary, based upon this assessment and the aforementioned contents of this report, there has been no evidence to indicate [the applicant] would not exercise the desired control and responsibility required for use of a firearm. According to a series of clinical contacts throughout the period 18.02.20-07.04.20, [the applicant’s] mental status has been stable. There have been no concerns indicating risk of harm to self or others, recently or historically. He has no known medical conditions, brain injuries, or substance abuse issues, which would affect impulse control and exercising responsibility of firearm use. He has [ASD] but this in it of itself is generally not a condition with episodic fluctuation of symptoms and associated changeability of risks. He does not appear to have any other mental disorders which would result in issues with impulse control or impaired judgement. Notwithstanding the index offence, he has no criminal history, unknown history of violence or aggression.

[The applicant] appears genuinely remorseful for the incident which lead to him having his firearms license revoked. According to the information available, he has been diligently following the requirements of his diversional Section 32(3)(a) order. He is seeking to apply to have his firearms license reinstated to resume an interest in pistol shooting at approved pistol clubs, and to broaden his employment prospects in security such as being able to work in armed security roles. Please consider approving he’s re-application for a firearms license. From a psychological assessment perspective, there are no obvious concerns precluding appropriateness of this application.

  1. We note that, even before his 2019 diagnosis of ASD, the applicant had exhibited signs of high-levels of stress and anxiety. In January 2014, his general practitioner referred him to his Local Health Network after posting a clip on YouTube saying he felt worthless. The applicant denied he had said this or that he had any suicidal ideation. It would appear the applicant agreed to participate in some treatment, but whatever treatment he obtained appears to have been minimal.

  2. It would appear that the applicant only had two consultations with Dr Choong after the December 2019 orders of the Children’s Court. These occurred in December 2019 and January 2020. On both occasions Dr Choong noted that the applicant did not have any problems with anxiety or mental health issues and did not require medication (Ex R4, p6).

  3. After seeing Dr Choong, the applicant attended four hourly consultations with Mr Bartlett between February and early April 2020.

  4. It is unclear how many consultations the applicant had with Mr Kyle Bodenham, a mental health occupational therapist. However, in his letter, dated May 2020, he said that the applicant had difficulty developing social skills and social awareness in general, because he had a little exposure and opportunities throughout his childhood (Ex A3). He said the applicant initially reported as feeling very socially awkward and that he had little awareness around social filters. However he had more recently engaged well with any available supports to improve his social skills.

  5. Mr Bodenham went on to say that vast improvements had been observed in the applicant’s social skills, assertive communication skills and social confidence. He said the applicant had been observed to be warm, polite, appropriate and knowledgeable during recent interactions. The applicant had reported that he had a girlfriend for the past six months that was developing into a supportive relationship. Mr Bodenham concluded by saying that while the applicant may have experienced significant challenges during his childhood, many of his resulting issues appear to have resolved themselves. He said that there were currently no significant concerns for his social skills or social awareness. Nor were there any concerns raised regarding risk to other people. Finally, Mr Bodenham concluded that there were no current concerns for the applicant’s mental state.

  6. As we have noted, at the time of the November hearing the applicant had been living in Western Australia for some time and he said he was no longer involved in any relationship.

  7. We understand the concerns expressed by the respondent, especially given his reliance on his ASD diagnosis in relation to his 2015 offending. However, in our view this alone does not mean that he is likely to re-offend. As is evident from the reports that were obtained in the course of the applicant’s criminal proceedings, that the recommendations contained therein were made to assist the applicant more generally in dealing with his ASD diagnosis.

  8. We also note that in Director of Public Prosecution v Sami El Mawas [2006] NSWCA 154, at [72] (which was referred to in the December decision of the Children’s Court) s 32 of the MH(FP) Act is a diversionary measure that diverts a defendant from being exposed to being sentenced for his or her crime under the criminal sentencing law and instead thereof, the defendant’s mental condition is taken into account at this stage of a criminal process. That is, it is a diversion scheme that is intended to produce a better outcome for the individual and the community, in that the defendant will obtain the necessary treatment he or she needs and the community is also protected.

  9. In the applicant’s case before the Children’s Court, it was agreed between the parties that an order under s 32 was appropriate in the circumstances. As we have noted, the reports of Dr Gumbert-Jourjon and Drs Mathieson and Aldridge were accepted and the Court noted the ‘significant passing between’ the applicant’s 2015 offending and the preparation of the reports. It was in this context that Court accepted that the applicant’s ASD may well have been stronger at the time of his 2015 offending to that which was portrayed in the reports, especially around aspects of communication. That is, the Court accepted the opinions expressed in the reports before it when directing the applicant to contact Dr Choong and Mr Bodenham within seven days of the orders having been made and to attend appointments as requested or otherwise directed. Dr Choong also undertook to inform the Court if the applicant ceased to comply with the treatment plan, which she acknowledged to apply for a period of six months.

  10. On the material before the Tribunal, the applicant appears to have complied with the direction to contact Dr Choong and Mr Bodenham within seven days and there is no evidence that Dr Choong contacted the Court Registry to say that the applicant had failed to comply with the treatment plan. On the contrary, the report of Mr Bartlett, the letter of Mr Bodenham and the notes of Dr Choong support the evidence of the applicant concerning the need for ongoing treatment. The applicant does not say he does not need any further treatment, as it will depend on how he is feeling. In the mean time he is aware of the need to maintain good social and communication skills.

  1. As we have noted above, in making the s 32 order, the Children’s Court emphasised the applicant’s young age and the need for rehabilitation. In this regard, the Court said (Ex R2, p 5):

In sentencing children, general deterrence and personal punishment must give way to rehabilitation. This, of course, is an interesting exercise in that the person, [the applicant], is now well into adulthood but certainly the Court if embarking upon a sentencing exercise would need to consider the strong principle in regards to rehabilitation and the sentencing exercise. This is because the law recognises the potential for the cognitive, emotional and psychological immaturity of a young person to contribute to the breach of the law and that allowance ought to be made for the offender’s youth. Of course, that is not just simply the biological age but also those factors which are contained in the reports which are before the Court.

  1. Having regard to the material before the Tribunal, the fact that the trigger offending occurred almost five years ago, when the applicant was a child, and in the absence of any evidence of a report of the applicant having re-offended since then, in our view the likelihood of the applicant re-offending is low. This is especially so given the recent assessments of Dr Gumbert-Jourjon, Mr Bartlett and Mr Bodenham. Having received his 2019 ASD diagnosis the applicant appears to be acutely aware of the need to maintain good social and communication skills for his own mental health.

  2. We nevertheless accept the respondent’s concerns about the applicant’s lack of evidence about his current supports, such as friends and family. We have dealt with this below.

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

  1. At the time of the hearing of the applicant’s application, there was no evidence of any court or tribunal order being in force in relation to the applicant.

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

  1. In his oral submissions at the hearing, the applicant said that he does not pose a risk to the safety of children and reiterated the following:

  1. the trigger offence occurred because he was mistaken as to the victim’s age. At the time he did not think he had done anything wrong because he believed the victim was 16 years of age;

  2. his treatment was around assertiveness training in being able to say ‘no’ and not being shy to ask questions. He had been told that he did not need any further counselling unless he felt otherwise;

  3. he continues to work on his social and communication skills;

  4. his grandparents were aware of his application and he did not want to involve his friends in the proceedings; and

  5. was unaware that wearing a body cam may be unlawful, or that having a taser gun was not permitted

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

  1. Section 36A of the WWC Act makes provision for the exchange of working with children check information between the respondent and bodies that administer similar WWC Act schemes in other jurisdiction. There is no information before the Tribunal in regard to inquiries the respondent made with a statutory body in another jurisdiction.

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

  1. In closing, the respondent accepted that the applicant’s family life was dysfunctional and as a result he was isolated and deprived of an education for many years. The respondent also noted that there was no evidence of any workplace complaints.

  2. Of concern to the respondent was the applicant’s use of a number of alias (i.e. surnames) (Ex R1, p150). In her report, Dr Gumbert-Jourjon, explained that the applicant had changed his parent’s surname to the surname he currently uses some time after he went to live with his grandparents (Ex R3, p8). In her written submissions the respondent suggested that the applicant’s failure to explain why he had used another two aliases indicated ‘a degree of dissembling in the history given to health practitioners’, which in turn, it was contended, raised doubt generally about the applicant’s account to health practitioners.

  3. In our opinion, on the material before the Tribunal no such inference arises. It would appear that the applicant was prone to changing his surname in the years immediately after he left his family and his home. However, there is no evidence that the applicant was changing his name for any other reason than that provided to Dr Gumbert-Jourjon.

  4. In oral submissions, the counsel for the respondent submitted that:

  1. the applicant had failed to demonstrate any remorse and his evidence was otherwise not credible;

  2. there was no evidence of the applicant having continued with counselling after April 2020. Nor had he followed the recommended supports that were included in the report of Drs Mathieson and Aldridge;

  3. the applicant has failed to be transparent in that he has refused to respond to the questions asked of him by the respondent. Nor has he provided any evidence of his current supports, or character references that show how his life operates in practice today; and

  4. it was of concern that the applicant was unaware of the taser and the body cam being illegal.

Does the applicant pose a real and appreciable risk to the safety of children?

  1. We reiterate, that in deciding whether, on the material before us and having regard to the matters set out above, the applicant poses a real and appreciable risk to children we must also have regard to the paramount consideration in s 4 of the WWC Act (the safety, welfare and well-being of children, in particular protecting them from child abuse).

  2. First, we do not find that the evidence of the applicant lacked credit. He was clearly guarded, which may be due, in part, to his childhood background, his limited life experience since leaving his family, fending for himself in recent years and the fact that he was unrepresented in these proceedings. In this regard he, as many other applicants seeking review of a decision of the respondent, view these proceedings as being a re-trial of the trigger offending.

  3. In our view, the applicant presented as a young man, who believed he had made a genuine mistake for which he had been dealt with in the Children’s Court. It was an isolated incident and not a mistake he said he would make again. However, as we explained to him, the question was whether, by reason of his offending, he posed a risk to the safety of children today – that is a real and appreciable risk to children today.

  4. In our view, on the material before the Tribunal, there are a number of factors concerning risk that are in the applicant’s favour and for which we give considerable weight. These are:

  1. the trigger offences occurred five years ago. They were offences that involved a child, but were also committed when the applicant was a child. The offences were committed in the middle of the day in question, and while they were serious, they were at the lower end of the scale of seriousness for such offences. We accept that the applicant was unaware of the actual age of the victim and that he is remorseful for what he did – he knows and understands that the events of January 2015 were wrong;

  2. there is no evidence that the applicant’s offending was predatory in nature – the offending was an isolated incident in that it all occurred on the same day around the same time;

  3. following the June 2019 assessment and recommendations of Drs Mathieson and Aldridge the applicant accepts his ASD diagnosis and understands what he needs to do to maintain his mental health wellbeing;

  4. based on the more recent assessments and reports of Dr Gumbert-Jourjon, Mr Barrett and Mr Bodeham, the likelihood of the applicant re-offending is low. He has matured since 2015, and suffers lees from anxiety and stress;

  5. there is no evidence of the applicant having committed an offence of this kind previously or subsequently;

  6. there is no record of the applicant having come to the attention of the authorities since he was 18 years of age (i.e. 2016) – which was more than four years ago;

  7. the evidence is that the applicant:

  1. was found to be open and frank in the 2019 assessments conducted by Drs Mathieson and Aldridge and Dr Gumbert-Jourjon; and

  2. has complied with the treatment plan as per the orders of the Children’s Court to the extent he was to receive counselling to address his communication and social skills, with the communication skills being those of concern to the Children’s Court;

  3. is otherwise fully aware of his ASD diagnosis and what he needs to do for his mental health wellbeing; and

  1. there is no evidence of the applicant’s ASD diagnosis is such that this diagnosis means that he poses a real and appreciable risk to the safety of children today. Indeed the evidence is to the contrary.

  1. The only factor of concern is a question as to whether, in these proceedings, the applicant has failed to fully disclose all matters relevant to his application: WWC Act, s 27(4).

  2. As we have noted, it was the applicant’s evidence at the hearing that he did not wish to trouble anyone. In our opinion, given the applicant’s childhood, his young age and he fact that he has moved several times since the trigger offending it is more than likely that he has a limited number of persons he knows today who have known him for any length of time. It would appear that this was also the case in the December 2019 hearing before the Children’s Court. However, we note that Dr Gumbert-Jourjon made contact with an uncle of the applicant and she included a reference to this in her report, which indicated that the uncle was supportive of the applicant.

  3. Accordingly, we do not make any adverse findings against the applicant in regard to no reference having been provided.

  4. In regard to the respondent’s request that the applicant provide details about his current and past employers, the applicant provided the following response in an email he sent to the respondent on 24 June 2020 (Ex R8, p4):

… [my] employment doesn’t involve contact with children and I prefer not to work with children so I have no intention of doing so anytime soon, however, it’s possible that a future employer may require a working with children check if I was working in an area that children frequently visit. I have never had a full time job that has involved contact with children, I’ve only worked at high school on one occasion that involved security patrols which didn’t involve direct contact with students unless there was a major incident. I don’t remember the name of the school and none of my previous employers had anything to do with children. I have never had any complaints from any jobs that I have worked and also haven’t been involved in any social clubs that involved contact with children since I was a child. … I don’t have any correspondence with the defence force or any other evidence I can provide other than what has already been submitted to the tribunal.

  1. In his subsequent email (Ex R8, p5), the applicant said ‘none of my previous employers had anything to do with children so I don’t see how that is at all relevant to the case, however I will try to consult a lawyer and get back to you with whatever advice they give’.

  2. We accept that it is appropriate for the respondent to seek information of this kind from an applicant whose application for a clearance has been refused, or an applicant whose clearance has been cancelled. While there is no compulsion for an applicant to respond by providing the requested details, a failure to do so may give rise to an inference that the applicant has something to hide (i.e. not fully disclosing any matter relevant to his/her application – s 27(4) WWC Act).

  3. In this case, the applicant did respond to the respondent’s request and while he did not provide details of his employers he did explain that he had not been the subject of any complaints. In our view, given the applicant’s age and his movements, there is nothing to suggest that the applicant’s response is other than truthful. Hence, we do not find that the applicant has failed to fully disclose a matter(s) relevant to his application.

  4. Finally, it is accepted that a person’s support structure is a factor to take into account when assessing risk. However, this factor must be measured against other factors.

  5. In this case, the applicant is still a young man who seems to have had little opportunity to establish a strong supportive network. Yet the applicant does appear to be working on it, especially as he knows how important this is to his mental wellbeing.

  6. In conclusion, having regard to the paramount consideration in s 4 of the WWC Act and in weighing the factors in favour of the applicant against the lack of evidence of a supportive network, we are not satisfied that the applicant poses a risk to the safety of children as at the day of hearing. That is, we are satisfied that the applicant does not pose a risk to the safety of children today.

S 30(1A) matters

  1. In regard to the first limb of s 30(1A) of the WWC Act, we have considered all the material before us, including the material relied on by the applicant and the respondent, the applicant’s oral evidence and the written and oral submissions of both parties.

  2. In our view, a reasonable person, acquainted with the material that is before us, would allow his or her child to have direct unsupervised contact with the applicant in any child-related work because:

  1. the trigger offences occurred five years ago. They were offences committed when the applicant was a child and were at the lower end of the scale of seriousness;

  2. the applicant knows and understands that the events of January 2015 were wrong and he is remorseful;

  3. following the June 2019 assessment and recommendations of Drs Mathieson and Aldridge the applicant accepts his ASD diagnosis and understands what he needs to do to maintain his mental health wellbeing;

  4. the applicant is still young, but has matured since 2015;

  5. the likelihood of the applicant re-offending is low;

  6. there is no evidence of the applicant having committed an offence of this kind previously or subsequently; and

  7. there is no record of the applicant having come to the attention of the authorities since 2016, when he was 18 years of age – this was almost five years ago.

  8. there is no evidence of the applicant’s ASD diagnosis being such that this diagnosis means that he poses a real and appreciable risk to the safety of children today

  1. In regard to the public interest, and noting that the paramount consideration of the WWC Act must take priority over private interest of the applicant, for the following reasons, we are satisfied that the making of an order setting aside the decision of the respondent and making a decision to grant the applicant a clearance is in the public interest:

  1. on the material before us, and for the reasons set out above, we are not satisfied that the applicant poses a real and appreciable risk to the safety of children;

  2. the applicant accepts his ASD diagnosis and understands what he needs to do to maintain his mental health wellbeing;

  3. the applicant has matured, but is still a young man and has a strong wish to be engaged in work and develop a career, including a career in a field for which he will require a clearance;

  4. without a clearance the applicant’s opportunities may be limited, which may limit the contribution he will be able to make;

  5. to engage in work and be involved in community affairs is important for the wellbeing and maturity of all young adults, especially so for a young adult who has a diagnosis of ASD.

Conclusion

  1. For the reasons set out above, we are satisfied that the applicant does not pose a real and appreciable risk to children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make such an order.

Orders

  1. For the reasons set out above, we make the following orders:

  1. The decision of the respondent, made on 3 April 2019, to cancel the applicant’s working with children check clearance is set aside.

  2. In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 14 October 2021

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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BKE v Office of the Children's Guardian [2015] NSWSC 523
CHB v Children's Guardian [2016] NSWCATAD 214
Commission for Young People v V [2002] NSWSC 949