EBV v Children's Guardian

[2020] NSWCATAD 180

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

EBV v Children’s Guardian [2020] NSWCATAD 180

Hearing dates:

11 May 2020

Date of orders:

15 July 2020

Decision date:

15 July 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C A Mulvey, Senior Member
Emeritus Professor P J Foreman AM, General Member

Decision:

(1)   The decision of the Children’s Guardian dated 18 September 2019 refusing to grant to the applicant a working with children check clearance is set aside.

(2)   The Children’s Guardian shall forthwith issue a Working with Children Check Clearance to the applicant known in these proceedings as EBV.

Catchwords:

ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)

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

Child Protection (Working with Children) Regulation 2013 (NSW)

Children (Criminal Proceedings) Act 1987

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing) Procedure Act (NSW) 1999

Evidence Act 1995 (NSW)

Working with Children Act 2005 (Vic)

Cases Cited:

AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69

BJB v Office of the Children's Guardian [2014] NSWCATAD 111

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

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

Children’s Guardian v CFW [2016] NSWSC 1406

Children’s Guardian v CKF [2017] NSWSC 893

Children’s Guardian v CXZ [2019] NSWSC 1083

CKF v Children’s Guardian [2017] NSWCATD 6

Commission for Children and Young People v FZ [2011] NSWCA 111

Commission for Children and Young People v [2002] NSWSC 949; 56 NSWLR 476

CTM v Children’s Guardian [2016] NSWCATAD 280

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

DAR v Children’s Guardian [2018] NSWSC 942

Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577

McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6

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

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

Category:

Principal judgment

Parties:

EBV (Applicant)
Children’s Guardian (respondent)

Representation:

Counsel:
S Free SC (Applicant)
J McDonald (Respondent)

Solicitors:
Uther Webster Evans (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2019/00322285

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

2. The applicant is referred to as "EBV". EBV 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.

3. On 4 July 2018, EBV applied for a WWCCC under the Child Protection (Working with Children) Act 2012 (the Act) nominating ‘Parent Volunteer - Mentoring” as the child related employment sector.

4. The respondent, following receipt of the application for a WWCCC for EBV, undertook a risk assessment pursuant to cl1(1)(a) of Schedule 1 to the Act. The risk assessment was undertaken as a result of EBV having been charged in March 2016, with 3 counts of sexual intercourse with a person who is of or above 14 years of age and under 16 years of age (s66C(3) of the Crimes Act 1900), 4 counts of indecent assault of a person under 16 years of age (s61M(2), Crimes Act 1900) and 4 counts of aggravated sexual assault of a person under 16 years of age (s61J(1) of the Crimes Act 1900). EBV is alleged to have committed these offences in July 2015, on 8 July 2015 and on 12 July 2015. EBV pleaded guilty before the Children’s Court in 2017 to 3 counts of sexual intercourse with a person of or over 14 years and less than 16 years. The other charges were withdrawn. The victim was EBV’s biological sister who was 14 years old at the time of the offences. EBV was 17 years old at the time of the offences.

5. On hearing a severity appeal, the District Court on 26 September 2017, sentenced EBV to a good behaviour bond for 16 months in respect of one of the offences and for 18 months in respect of the other two offences, pursuant to s33(1)(a)(ii) of the Children (Criminal Proceedings) Act 1987.

6. On 18 July 2018, the respondent informed EBV that he was subject to an interim bar and that a risk assessment was to be conducted concerning him being able to be issued WWCCC. Between October and December 2018, despite the interim bar, EBV engaged in child related employment. The specific details of the incident involved EBV being paid to participate as a coach/mentor in a sport with persons under the age of 18 years. EBV was charged with 5 counts of engaging in child related work while subject to an interim bar. Four of the charges were withdrawn on 31 May 2019, while the remaining charge was dismissed pursuant to s32(3)(c) of the Mental Health (Forensic Provisions) Act 1990.

7. On 19 July 2019, the respondent imposed a fresh interim bar on EBV under s17 of the Act. Notice was given to EBV that the Children’s Guardian proposed to refuse his application for a WWCCC pursuant to s18(2) of the Act. EBV was invited to provide any submission in response. Despite material received by her on 30 August 2018, the Children’s Guardian refused EBV a WWCCC on 18 September 2019. The reasons for the refusal were because of the seriousness and significant impact on the victim of the trigger offences and EBV’s further conduct since, namely, engaging in child related work while subject to an interim bar. The Children’s Guardian was satisfied that EBV posed a real and appreciable risk to the safety of children.

8. On 15 October 2019, EBV filed an application seeking administrative review of the decision of the respondent to refuse him a WWCCC. EBV relies on his evidence which explains the circumstances pertaining to each of the allegations raised by the respondent in coming to its determination to cancel his WWCCC.

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

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

Jurisdiction of the Tribunal

11. There is no dispute that we have jurisdiction to review the decision of the respondent that is the subject of this application. In reviewing that decision we must determine the correct and preferable decision having regard to the material before us and the applicable law: see s 63(1) Administrative Decisions Review Act 1997 (NSW) (ADR Act). 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 s 63(3) ADR Act and ss 18(2) and (3) of the Act.

Relevant Law and Legal principals

12. The jurisdiction of the Tribunal under Part 4 of Act is protective and not punitive in nature as set out by the Court in: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]; R v Commission for Children and Young People [2002] NSWlRComm 101.

13. A person who has been refused a clearance may apply to the Tribunal for administrative review of the decision: s 27 of the Act -

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

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

   14. The Notice refusing EBV’s WWCCC under s18(2) was issued on 18 September 2019. EBV’s application for administrative review was filed on 15 October 2019 which means it was filed in accordance with s27(1).

   15. EBV must fully disclose to the Tribunal any matters relevant to the application; s27(4) of the Act.

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

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

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

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

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

   “...whether, in all the circumstances, there is a real and appreciable risk, in the sense of a risk that is greater than the risk of any adult preying on a child. One, however must link the word “risk” with the words that follow, namely, to the safety of children”.

   20. As set out above, s 5B of the Act enshrines a definition of “risk to the safety of children” in similar terms to Young J in V.

   21. The decision in BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take in assessing the question of ‘risk to the safety of children’.

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

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

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

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

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

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

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

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

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

   23. The Supreme Court of NSW has on many occasions adopted the approach taken in M v M and BKE (see Children’s Guardian v CXZ [2019] NSWSC 1083; DAR v Children’s Guardian [2018] NSWSC 942; Children’s Guardian v CKF [2017] NSWSC 893 and Guardian v CFW [2016] NSWSC 1406).

   24. 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).

   25. 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]).

   26. 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 EBV, 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.

   27. 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.

   28. 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’.

   29. 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.

   30. 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.

   31. In determining this review application, we must first have regard to the factors set out in ss 30(1) and (1A) of the Act.

   32. 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.

Evidence

Documents

33. EBV filed the following written material:

• Application filed 7 May 2018 and statement EBV 18.2.20 (A1)

• Statement of EBV’s stepmother 18.2.20 (A2)

• Statement of EBV’s mother 20.2.20 (A3)

• Report Dr Olav Nielssen 8.1.20 (A4)

• Application filed 15.10.19 (A5)

34. The respondent filed the following written material

• Bundle 58 documents 15 November 2019 (R1)

• Bundle 58 documents 22 November 2019 (R2)

35. EBV and the respondent were both represented by Counsel.

36. During the hearing, EBV gave oral evidence and was cross-examined by the respondent’s counsel. EBV’s mother and step-mother gave evidence and they were also cross-examined. EBV handed up a chronology. Written submissions were relied upon and counsel for EBV and the respondent made final submissions.

The trigger offence in June 2015

37. The victim provided the following account in relation to the June 2015 allegations:

Towards the end of June 2015 [EBV] touched her on her breast under the clothing. [EBV] asked her to talk [sic] her top off and sucked her breast … [EBV] massaged her breasts and grabbing it [sic]. [She] was in her mother’s bedroom and was on her bed when this happened. [EBV] pulled his pants down and pulled her hand and put it on his penis. [EBV] moved [her] hand up and down on his penis. [EBV] said to her not [to] tell anyone. [The victim] stated she will tell her mum [and EBV] said to her if she tells mum, he will say to her that she wanted it and mum will not believe her. [She] stated that she felt scared of [EBV].

38. EBV was ultimately charged with three counts of indecent assault of a person under 16 years of age, pursuant to s61M(2) Crimes Act 1900. Those charges were ultimately withdrawn.

The trigger offence on 8 July 2015

39. The victim provided the following allegations in relation to the events on 8 July 2015:

She was in her mother’s bedroom on her bed … she was in her mother’s room because she was applying cream on her vagina. [EBV] entered the room, he saw her doing this and he said that she was masturbating. [EBV then] walked into the ensuite and got a razor. [EBV] then pulled her pants down and used the handle of a razor and inserted it into her vagina. [EBV] moved the razor in and out of her vagina. [EBV] then returned to the ensuite and washed the razor. ‘[EBV] then returned to the bed and pulled his pants down and had vagina-penile intercourse with her. [EBV] said to [the victim] that this will make her feel good.

40. EBV was charged with two counts of aggravated sexual assault of a victim under 16 years of age, pursuant to s61J(1) of the Crimes Act 1900. The charges were ultimately withdrawn. EBV pleaded guilty to one count of having sexual intercourse with a person who is of or above 14 years of age and under 16 years of age (s66C(3) of the Crimes Act 1900).

41. EBV pleaded guilty to the following statement of agreed facts which were tendered at the sentencing hearing by police concerning the 8 July 2015 trigger offence (R1, page 376):

First offence - count 10 (s66C(3) Crimes Act 1990)

4   In the evening of the 8 July 2015 the victim was at home with the offender and their older brother [deleted]. The victim was in her mother’s bedroom applying cream to her vaginal area due to her having a rash.

5   Whilst the victim was applying the cream, the offender entered the room and accused her of masturbating. The victim told him to get out. [The elder brother] came to the room and the offender told him the victim was doing ‘stuff’. [The older brother] asked the offender to leave the room, which he did. A short time later [the older brother] left leaving the victim and the offender alone in the house.

6   Shortly after this the victim sent a text message to the offender as she was angry about him telling [the older brother] what she had been doing. The victim sent a text message to the offender requesting that he come back upstairs quietly. The offender went into an ensuite bathroom and returned with a plastic disposable razor. The offender moved the handle of the razor in and out of the victim’s vagina a number of times, until the victim told him to stop. This occurred for approximately 1 minute. The offender then left the room.

The trigger offence on 12 July 2015

42. EBV’s sister provided the following version of events which occurred on 12 July 2015, which EBV denied:

She was in the lounge room and [EBV] entered the lounge room. … she was lying on the ground, watching TV … when [EBV] entered the room, he asked her to take off her pants. [EBV] said to her, ‘Take off your pants, or I take it off for you’. [She] pulled her pants down … [EBV] then pulled down her underpants. [EBV] took off his pants and underwear. [EBV] then went into the kitchen and got a small plastic bag with a rubber bands [sic]. [EBV] put the bag on his penis and tied it with the rubber bands on the end [of his] penis. [EBV] then had penile-vaginal intercourse with her. [EBV] said to her that he wanted to try something different and asked her to take her tops off. [She] took her tops off and [EBV] then unbuckled her bra and left it off. [EBV] placed his penis between [her] breast and pushed her breasts against his penis and moved it in and out. [EBV] said it did not work. [EBV] asked [her] to lay on the arm of the couch and again had penile-vagina sex with her. [EBV] again told her not to tell anyone or he will hurt her.

43. In the Statement of Agreed Facts tendered by the police at the sentencing hearing, which EBV pleaded guilty to, the following version of events in relation to the 12 July 2015 incident are:

Second offence - count 9 (s66C(3) Crimes Act 1900)

7   On 12 July 2015 the victim was lying on the floor in the TV room downstairs at her home. The offender entered the TV room and had a conversation with the victim.

8   The offender went to the kitchen, he returned a short time later with a plastic bag, which he placed over his penis. The offender removed his pants and underwear. The victim took off her underwear after the offender asked her to take it off and if not he could take it off.

9   The victim sat on the arm of the lounge, and the offender attempted to have sexual intercourse, inserting his penis in about a quarter of a centimetre, before the victim told him it hurt and he should stop. About 30 seconds later, the offender inserted his penis again, this time about half a centimetre, but he stopped when the victim told him ‘It hurts again’. The offender told the victim that it could be the plastic bag causing her to feel pain, so he threw away the plastic bag and obtained another one. The offender placed a portion of a different plastic bag over his penis and again inserted his penis in a small way into the vagina, before being told by the victim that it still hurt. The offender stopped immediately.

10   After that incident, the offender and the victim went upstairs and the victim went into her bedroom.

Third offence - count 11 (s66C(3) Crimes Act 1900)

11   On a further occasion later on the same day, the victim and the offender were in their mother’s room. The victim removed her clothes as requested by the offender and the offender removed his clothes. The offender inserted his penis in a small way into the victim’s vagina, but stopped when it appeared to him that this was painful to the victim.

12   The offender again inserted part of his penis into the victim’s vagina and stopped a short time afterwards as the victim was feeling more pain. After the incident the victim observed blood which had come from her vagina as a result of this incident. [Exhibit R1, pages 376 and 377]

Report of the Trigger Offences to Family and Community Services

44. In about August 2015, Family and Community Services (FACS) received reports concerning the trigger offences. The following record was made by FACS:

That the incidents occurred on 3 occasions, the first of which took place 2 months ago (during school holidays) and the third and final incident occurred 2 weeks ago and she told her mother and ‘mum has done something’. On one occasion [EBV] put his hand over her mouth, their eldest brother was in his room sleeping and it occurred at 4.30 p.m. On another occasion [the older brother] and their mother had to leave the house [the victim told her mother] that she did not feel safe at home with [EBV], the mother left the house anyway. Two weeks ago [EBV] made her shake his hand and said ‘we have to agree we won’t tell anyone about this’. [Exhibit R1, page 246]

45. EBV’s sister disclosed to FACS after the last incident that EBV said to her ‘This will be our little secret, if you tell anyone I will deny it and I will say it’s your fault because you didn’t stop me’ (Exhibit R1, page 258).EBV, when asked by an officer of the Children’s Guardian on 7 May 2019, about these allegations concerning ‘keeping it secret’ said: ‘I have nothing against my sister. I hope she has a great life, but there is no truth to that accusation. Everything was experimental and consensual’ (Exhibit R1, page 126).

The effect of the assaults on EBV’s sister

46. On 1 March 2016, EBV’s sister presented at Westmead Hospital following a suicide attempt. She made full disclosure of the offences which led to EBV being charged. A provisional and later interim and final Apprehended Violence Order was put in place protecting EBV’s sister from him. The AVO expired on 28 May 2019, 10 months after EBV applied for a WWCCC.

47. EBV’s sister presented again to the Emergency Department of Westmead Hospital on 5 April 2017 exhibiting active suicidal ideation.

Findings of the Children’s Magistrate

48. On 21 April 2017, EBV appeared at a sentencing hearing in the Children’s Court of New South Wales. On 29 May 2017, the Children’s Magistrate handed down a sentencing Judgment. The respondent has set out the relevant parts of that Judgment and submits that these are relevant to the task before us. The respondent submits that the following matters reasonably and accurately reflect, or are supported by, the material now before this Tribunal. We accept the submissions of the respondent and consider these matters helpful in us determining the application:

The offences for which the young person has pleaded guilty are inherently serious …

At the time of the offence the young person was 17 years old and the victim was 14 years old. This is a significant age difference. The young person has delayed social and emotional development, lacks assertiveness and his social and emotional maturity and understanding is likely to be below that for his age and he presents as quite naïve.

The young person is the older [brother] of the victim and at the time of the offences the young person and the victim resided together. The offences took place in the victim’s home where she should have been able to feel safe and secure and she should have been able to expect safety and protection from her older brother.

There was no sophistication to the offences or any detailed planning involved.

There was no evidence of the exploitation of the victim going beyond that which is inherent in the offences of this type and that which resulted from the significant age difference. The offending was not motivated by a desire or intention to cause harm or exercise control. The young person perceived that each of the acts were consensual and had no understanding at the time of the criminality or wrongness of the act.

Each of the acts of sexual intercourse involved penetration. Counts 2 and 3 involved more than one discrete act of penetration. Both offences committed on 12 July 2015 caused the victim pain from the penetration and the second offence of that day also caused bleeding. On each occasion the victim asked the young person to stop or the young person perceived the victim was feeling pain, he stopped.

In my assessment all the circumstances combine to result in the first offence being slightly less serious than the second and third offence. In my view the first offence was below mid-range and the second and third offences are close to mid-range of objective seriousness. …

The victim provided a lengthy and moving statement of the effects the offences have had on her life. I do not consider it an exaggeration to say that she sees her life as being overtaken or hijacked by the adverse ongoing effects of the offences and considers her relationship with her parents significantly harmed as a result of the offences against her.

…

The victim describes the effect of these crimes on her as being hugely detrimental and profound and it has negatively impacted all aspects of her life.

The content of the victim impact statement presented a somewhat different version of the offences as that which was contained in the agreed facts. The victim impact statement also detailed the victim’s isolation and the betrayal she has suffered from her parents’ reaction to the offences. The victim drew a link between the offences, her current mental health diagnosis and her suicide attempt.

The Discharge Summary from the Emergency Department dated 5 April 2017 notes the victim presented to the Emergency Department with active suicidal ideation. It noted her mental health history as depression, PTSD, anxiety and suicide attempt. It is noted that she had been seeing a psychologist for 9 months.

…

The evidence of the young person’s mother and stepmother attest to the young person’s many positive attributes and which make up a young person of good character. The Juvenile Justice report also includes a description of a young person of good character. The young person has not had prior involvement with the criminal justice system and has abided by all conditions set by this Court during his period on bail. I have formed the view that the young person is a person of good character.

…

The report of Juvenile Justice dated 7 April 2016 makes reference to the report of its Psychologist, Mr Thomas Mackay dated 31 March 2017 and states that the young person has numerous positive factors which would suggest that he is unlikely to reoffend. These factors include limited antecedents, no further offending, family supports, his adherence to bail conditions and his long-standing involvement in [a sport].

Juvenile Justice also reported that the young person is now aware that his acts with which he has been charged are unlawful and warrant legal consequences. Juvenile Justice reports:

‘EBV, accepts the consequences of his actions and takes responsibility for what has occurred.

[EBV] reported being ‘sad’ about being separated from his siblings. Further, expressing the possible impact his behaviour has had on the family … he reported being sorry for his inappropriate behaviour and he is prepared to accept the consequences and the direction of this Court.’

I am satisfied that given the numerous protective factors as outlined by Juvenile Justice, his good character, the insight the young person now has into his offending and the intervention he has received the young person is unlikely to reoffend and has good prospects of rehabilitation. …

Dr Nielssen is the Psychiatrist who prepared a report relating to the young person dated 22 April 2016, diagnosing the young person with a mild disability. …

The young person also attended a neuropsychological assessment undertaken by Dr Amanda White, Forensic Psychologist and Clinical Neuropsychologist. Dr White undertook objective intellectual and neuropsychological testing. She concluded that the young person does not have an intellectual disability.

It was conceded on behalf of the young person that the opinion of Dr White is to be preferred over the opinion of Dr Nielssen in relation to the diagnosis of intellectual disability as Dr White undertook formal testing and Dr Nielssen did not.

Dr White went on to state her clinical opinion as follows:

‘… there is no evidence to suggest that he has any intellectual impairment that would significantly impact his ability to appreciate the gravity and consequences of his actions; although I suspect that this may be below that of his age peers given his delayed social and emotional development …’

…

I accept the opinion shared by both experts that the young person’s social and emotional maturity and understanding is likely to be below what is expected for his age and compared to his peers, he lacks knowledge of social contexts, cues and relationship. I accept the opinion that the young person’s limitations are likely to have affected his appreciation of the wrongfulness of his actions against his sister.

…

The young person struggled academically at school and was bullied in Year 8. This resulted in depression and suicidal ideation. The young person throughout his schooling performed exceptionally well in both school and representative sport. He has always been shy, introverted and has few social contacts.

The young person no longer has any relationship with either of his siblings but he has the support of both his parents and [his stepmother], each of whom describe him in highly positive and complimentary terms.

The young person does not currently work but is a [sportsperson] of very considerable talent and it is his hope and expectation that this will be his career. He trains twice daily and competes regularly in organised [sporting] events countrywide. He has no other interests and when not training or playing [his chosen sport] stays at home. He does not socialise very much and has never had a girlfriend.

According to the Juvenile Justice report the young person’s misperceptions held at the time of the offences that the acts were consensual and his lack of understanding that having sex with your sister or a minor was problematic or illegal have now been addressed with the young person.

…

The young person had at the time of the offence a lack of understanding of boundaries and the criminality of his actions and was delayed in his social and emotional development. These attributes significantly contributed to the offending. Although these offences are very serious, they did not appear to involve significant planning or reflection and they do not disclose any indicia of understanding, insight or mature decision making. In the particular facts of this case, although his chronological age was 17, he certainly did not have the maturity or comprehension of a 17 year old.

49. After due consideration the learned Magistrate determined that it was not appropriate that convictions be recorded. The Crown was not able to establish any aggravating factors as set out in s21A(2) of the Crimes (Sentencing Procedure) Act 1999. The orders made by the learned Magistrate were as follows:

Sequence 1

The young person … is found guilty but without proceeding to a conviction is released on probation for 16 months pursuant to s33(1)(e) of the Children (Criminal Proceedings) Act 1987 commencing 29 May 2017 and accepts the following conditions:

(a)   the young person must be of good behaviour and appear before the Court during the bond term if required; and

(b)   to accept the supervision and guidance of Juvenile Justice for as long as deemed necessary; and

(c)   to report to Juvenile Justice closest to the young person’s place of residence within 7 days.

Sequence 2 and 3

The young person … is found guilty but without proceeding to conviction is released on probation or 18 months pursuant to s33(1)(e) of the Children (Criminal Proceedings) Act 1987 commencing 29 May 2017 and accepts the following conditions:

(d)   the young person must be of good behaviour and appear before the Court during the bond term if required; and

(e)   to accept the supervision and guidance of Juvenile Justice for as long as deemed necessary; and

(f)   to report to Juvenile Justice closest to the young person’s place of residence within 7 days.

50. EBV lodged a severity appeal to the District Court of New South Wales. The learned District Court Judge adopted the Judgment of the learned Magistrate which he considered was ‘immaculate and without error’. Nevertheless, the District Court varied the learned Magistrate’s orders to provide that instead of being released on probation EBV enter into a good behaviour bond pursuant to s33(1)(a)(ii) of the Children (Criminal Procedure) Act, for the same period as the original orders, but commencing on the date of the District Court Judgement, 26 September 2017, and on the same conditions as had originally been imposed.

50. EBV attended psychological treatment supervised by Juvenile Justice. Supervision was suspended on 12 July 2018 after Juvenile Justice determined it was no longer required. EBV completed the terms and conditions of the sentence imposed on him by the District Court.

Allegations of EBV exchanging nude photographs with a child

52. Following the Childrens and District Court’s sentencing matters EBV between December 2015 to June 2016 was involved in an incident at a sporting facility where he and 6 others were suspected of sending nude photographs to each other via digital devices. In documents from NSW Police Force (Exhibit R1, pages 144 to 145) a 15 year old female said she was asked by EBV to send nude photographs of herself to him, which she did. She also alleges that EBV kissed her. Following police involvement no further action was taken. EBV admits he received a nude photograph, but said he did not encourage her (or anyone else) to send it and he did not send any nude photograph back to her in reply.

EBV’s breach of the Interim Bar

53. On or around 20 September 2018, the President of a sporting club notified the respondent that EBV was coaching 15 to 17 year olds. Following enquiries, NSW Police charged EBV with 5 counts of ‘engage in child related employment whilst subject to interim bar’ between October to December 2018. The five charges were subsequently withdrawn and dismissed pursuant to s32(3)(c) of the Mental Health (Forensic Provisions) Act 1900.

54. EBV said that he was asked by a friend and sporting professional to engage in work at the sporting club to practice with other players, including children aged between 15 to 18. He said he was never with children on a one on one basis and his motivation for working at the sporting club was that he enjoyed his chosen sport and helping others, his mother was sick at the time with bowel cancer and his father was recovering from heart surgery. He was working as he wanted to take pressure off the family financially. He said he completely misunderstood his obligations and wrongly thought the interim bar was under appeal and that he was not precluded from working with children. The Children’s Guardian in her submissions raises a concern that EBV may remain intellectually incapable of understanding legal and moral requirements or he understands such requirements but chooses not to comply with them.

Section 30 (1) considerations

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

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

56. Each of the offences with which EBV was charged and/or pleaded guilty to is inherently serious which was similarly found by the learned Magistrate. The findings of the learned Magistrate are instructive in this regard and include that the objective seriousness of the first offence was below mid-range. The second and third offences were close to mid-range. We have taken into consideration the relatively significant mitigating circumstances identified by the learned Magistrate including, EBV’s naivety, his social and emotional immaturity, him having been bullied at school, difficulties in learning and dysfunctional family dynamics.

57. In similar and unfortunate circumstances for EBV, his naivety and lack of education and life experience and slow capacity to learn may explain his ignorance in complying with the interim bar. Whilst his non-compliance is a serious matter, we accept the oral evidence of Dr Nielssen that EBV is a slow developer and that he had learning difficulties in his formative years. We have considered EBV’s explanation that he believed the interim bar was suspended during the time his application was for a WWCCC was being processed. We find that it is consistent with him making a genuine mistake.

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

58. The trigger offences occurred approximately 5 years ago. Eighteen months has passed since EBV engaged in child related work in contravention of the interim bar.

59. EBV completed psychological intervention early which was part of his sentence imposed by orders of the District Court. Apart from the breach of the interim bar, there is no evidence that EBV has come to the attention of authorities. We accept EBV’s evidence that he did not instigate, nor reciprocate the exchange of nude photographs amounting to ‘sexting’.

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

60. EBV was aged 17 years at the time of the trigger offences and he was 20 when he breached the interim bar.

(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.

61. The age of EBV’s sister was 14 years. EBV’s sister was assaulted at home, in an environment that she ought to have had no concern for her safety.

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

62. The difference in age between EBV and his sister is 3 years.

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

63. EBV knew his sister was a child, as was he at the time of the trigger offences.

(g) The person's present age.

64. EBV was at the time of the hearing 22 years of age.

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

65. The totality of EBV’s criminal history relates to the trigger offences and the breach of the interim bar.

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

66. The likelihood of any repetition of the offences or conduct of EBV is in our view low. We place considerable weight on the findings of the learned Magistrate in this regard which is set out above. Similarly, we have attached considerable weight to the opinion of Dr Nielssen, who opines in his report dated 28 May 2019:

[EBV] does not pose a threat to any children or adolescents who might be placed in his care

67. Whilst we do not accept Dr Neilssen’s findings that EBV has an intellectual disability and prefer the findings of Dr Amanda White, we find that at the time of his offending, EBV lacked knowledge of social contexts and social cues concerning relationships when compared to his peers. Dr Nielssen opines: ‘I believe he is unlikely to reoffend, because of the unique circumstances in which the original offences occurred, which are unlikely to recur, and because of [EBV’s] greater maturity and intellectual development since those offences’. We accept Dr Nielssen in this regard. We find this is a positive factor against EBV reoffending.

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

68. There is none known.

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

69. We have taken into consideration the written submissions and bundle of documents tendered by EBV in these proceedings. EBV expressed his regret for his offending. He said in effect that he is older and wiser now and recognises how his offending has affected his sister and the greater family dynamic. He expressed his remorse for his offending.

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

70. This is not applicable criteria in this matter.

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

71. EBV was sexually abused by his biological father. He says he was ostracised by his sister and older brother, who both viewed him as intellectually inferior. Despite his parents being aware of this, no action was taken to address the situation.

Evidence of EBV

72. EBV confirmed that he pleaded guilty to the trigger offences, He said he was ‘very sorry for what has happened to my sister and family. It has torn us apart and I hope one day we can come together’. At the time of the trigger offences EBV said he had no knowledge about girls, not even experiencing kissing. He explained that his behavior was borne out of curiosity not understanding what was right or wrong. However, now after therapy and working with professionals he is aware of what is acceptable behaviour and what is a criminal offence.

73. EBV is in, and has been in a committed relationship for two years. His girlfriend is also a professional sportsperson in the same sport which he enjoys. He described his immaturity at the time of the trigger offences and the level of education he has engaged in since that time.

74. In questions concerning EBV’s breach of the interim bar, he said he had made submissions to the Children’s Guardian in support of his application for a WWCCC. He did not hear back and assumed that during the time the risk assessment was being completed that the ‘interim bar’ was suspended. Pending a final outcome, EBV genuinely believed he could work with children. He accepted that he made a mistake in this regard.

75. Despite a robust cross-examination, EBV’s evidence was not disturbed in any material sense. We find that EBV gave his evidence in a frank manner and he is a reliable witness. We are satisfied (for the purpose of s27 (4)) that he has complied with his duty to disclose fully to the Tribunal to the best of his ability at hearing.

Evidence of EBV’s mother and stepmother

76. EBV’s mother was asked how her son had changed since 2016. She said: ‘in the last 5 years definitely matured. He was a very young and naive teenager. He has matured a lot due to the circumstances. He is more responsible. He has slowly turned into an adult rather than adolescent.’ During cross-examination she agreed that EBV was not academically gifted and that he struggled at school. She accepts the grave mistakes her son made during his formative years, but was adamant that he has matured and poses no risk to the safety of children.

77. Similar evidence was given by EBV’s stepmother and as to his good character.

78. EBV’s mother and stepmother both said that they believed EBV’s sister may have been a willing participant and that she at times distorted the truth. Without evidence from EBV’s sister, we could not come to a concluded view on this aspect. However, we have considered that EBV pleaded guilty to the agreed statement of facts.

79. Despite the cross-examination of EBV’s mother and stepmother, we accept their evidence and find they are both reliable witnesses.

Evidence of Dr Olav Nielssen

80. Dr Olav Nielssen is a psychiatrist who wrote a number of reports concerning EBV (22 April 206, 28 May 2019 and 8 January 2020). Dr Nielssen opines that EBV has a mild-intellectual disability. However, as set out above we prefer the findings of Dr Amanda White, neuropsychologist, who found that EBV does not meet the criteria for having a mild-intellectual disability. Dr Nielssen did not administer any formal testing in arriving at his conclusion. Dr White spent five hours administering various tests and determined that EBV does not meet the criteria for having a mild-intellectual disability. In the result, Dr White and Dr Nielssen’s evidence both support a finding that EBV he was a slow developer and that this has contributed to his understanding of what was right and wrong at the time of the trigger offences.

81. Notwithstanding our finding that EBV does not have a diagnosed mild-intellectual disability, we accept Dr Nielssen’s evidence that EBV does not present as a real and appreciable risk to the safety of children.

Our consideration

82. EBV pleaded guilty to the agreed statement of facts tended in the Children’s Court proceedings. The findings of the learned Magistrate are particularly instructive in our determination that EBV does not pose a real and appreciable risk to the safety of children. We have found that EBV, his mother and stepmother were all reliable witnesses whose evidence supports a positive finding. Dr Nielssen’s evidence, which we have given significant weight, also supports our finding that EBV is not a real and appreciable risk to the safety of children.

83. We accept EBV’s explanation as to the surrounding circumstances concerning his breach of the interim bar. EBV is clearly a man of below average intelligence which was evident during his evidence. He has struggled academically and despite advancing in his level of social maturity, he in our view made an honest mistake which could have had dire consequences for his future. We are satisfied that EBV genuinely misunderstood the operation of the interim bar which was in place whilst the risk assessment was being conducted. This in our mind does not mean that he is a risk to the safety of children.

84. We have taken into consideration the submissions of each part and the respondent’s position that she neither consents to nor opposes the application before us. In doing so, we find that EBV is not a real and appreciable risk to the safety of children.

Section 30 (1A) consideration and findings

85. Given our finding that EBV is not a real and appreciable risk to the safety of children, these provisions apply to this review.

86. The section provides:

(1A)   The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a)   a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b)   it is in the public interest to make the order.

87. 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:

1. 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.”

   88. We accept and have taken into consideration the evidence of EBV, his mother and step-mother.

   89. We have considered that the conduct of EBV concerning the trigger offences. Having regard to the nature and seriousness of the trigger offences, and EBV’s education and conduct since, we are satisfied that in having all this information before them, we find a reasonable person would allow his or her child to have direct contact with EBV that was not directly supervised by another person while EBV was engaged in any child related work.

   90. 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.

2. 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.

3. 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.

   91. We find nothing contrary to the notion of the public interest in granting a WWCCC to EBV. We find that EBV’s right to follow his ambition to be a professional sportsperson in his chosen profession, and the ability for him to pass on his skills by training others in his chosen sport, are in this instance complementary and in the public interest. Such activity would not pose a risk to the safety of children.

Conclusion

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

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

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

Orders

1. The decision of the Children’s Guardian dated 18 September 2019 refusing to grant to the applicant a working with children check clearance is set aside.

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

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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

Amendments

07 August 2020 - Error in order 2 corrected

Decision last updated: 07 August 2020