ECT v Children's Guardian

[2020] NSWCATAD 185

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ECT v Children’s Guardian [2020] NSWCATAD 185

Hearing dates:

23 March 2020

Date of orders:

21 July 2020

Decision date:

21 July 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C A Mulvey, Senior Member
R Royer, General Member

Decision:

The decision of the Children’s Guardian dated 7 November 2019 refusing to grant the applicant a working with children check clearance is affirmed.

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

Children and Young Persons (Care and Protection) Act 1998

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:

ECT (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
J Harris (Respondent)

Solicitors:
Appellant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2019/00359741

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 cancelling a Working with Children Check Clearance (WWCCC) granted to the applicant on 19 July 2018, 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 "ECT". ECT 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 18 November 2016, ECT applied for a WWCCC under the Child Protection (Working with Children) Act 2012 (the Act) nominating ‘youth worker’ as the child-related employment sector. The WWCCC was granted to him on 19 July 2018.

4. On 7 December 2018, the respondent received a request for information pursuant to Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (“Care Act”) from the New South Wales Ombudsman. The Ombudsman had received a notification from a youth organisation that ECT was involved with as a mentor/coach. The information provided to the respondent related to allegations that ECT in December 2017 engaged in inappropriate communication via social media with a then 16 year old female student. The New South Wales Ombudsman advised respondent that ECT had also been the subject of an Apprehended Violence Order taken out to protect the young person, being a female student at a school associated with the youth service. Further information was also provided which related to a number of police event numbers concerning other matters which the respondent may consider necessary in undertaking a risk assessment as to whether the WWCCC granted to ECT should remain in force.

5. The respondent determined to conduct a second risk assessment, pursuant to s15(3) of the Act.

6. On 28 March 2019, an interim bar was imposed on ECT’s WWCCC preventing ECT from working with children.

7. On 27 September 2019, ECT was invited by the respondent to provide further information in response to the respondent serving a Notice of Proposed Cancellation of his WWCCC. ECT provided a response on 1 October 2019.

8. On 7 November 2019, the respondent cancelled ECT’s WWCCC, pursuant to s23(1) of the Act. The interim bar was revoked and the Children’s Guardian provided reasons for her decision to cancel ECT’s WWCCC. Those reasons included:

• On 7 December 2018, the respondent, having received a Chapter 16A notification from the New South Wales Ombudsman, became aware that ECT had been the subject of an investigation by a youth service where he was working. It was alleged he engaged in ‘sexual misconduct; crossing professional boundaries’ whilst employed as a contractor in late 2017. ECT is alleged to have crossed professional boundaries by engaging in a personal relationship including social media contact with a student. The youth service finalised its investigation on 15 June 2018, with no allegations being sustained, however it found ECT’s actions were a breach of its Code of Conduct. A bar was placed on ECT where he was unable to provide any services to the youth service, attend any planned youth service events or have any association with youth service clients. As of 19 March 2019 that bar remained in place.

• Subsequent to the investigation an enforceable AVO was taken out protecting the young person against ECT. The AVO commenced on 27 June 2018 and expired on 26 June 2019. The police alleged that the relationship between ECT and the young person commenced in December 2017 and ended on 2 May 2018, with the young person alleging ongoing verbal and emotional abuse. ECT allegedly attempted to contact the young person up to 150 calls per day. It is alleged on 20 May 2018, ECT attended the young person’s place of work (a café), was asked to leave and then approached the young person outside the café demanding to talk to her and hold her hand. Further allegations of contact with the young person have been made and are set out below.

• From 19 September 2016 to 30 March 2019 ECT was a Board Member on an advisory board to a Department of the New South Wales Government. That Government department’s Professional Conduct Unit notified the Ombudsman that there was an investigation being undertaken in relation to the abovementioned allegations. That investigation at the time of the respondent’s decision was ongoing.

• A number of positive references were provided in response to the respondent’s decision to consider cancellation ECT’s WWCCC. Those references were taken into consideration by the respondent in making its decision.

9. On 15 November 2019, ECT filed an application seeking administrative review of the decision of the respondent to cancel his WWCCC. ECT relies on his evidence which explains, and in some circumstances he denies, the allegations raised by the respondent forming information used to cancel his WWCCC.

10. The issue for us to determine is whether, as at the date of hearing, we can be satisfied ECT poses a real and appreciable risk to the safety of children and whether he should be granted a WWCCC to work in child related-work.

11. After consideration of all the evidence, we decided to affirm the decision of the Children’s Guardian to cancel ECT’s WWCCC. The reasons are set out below.

Jurisdiction of the Tribunal

12. 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

13. 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.

14. A person who has had a clearance cancelled may apply to the Tribunal for administrative review of the decision: s 27 of the Act -

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

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

15. The Notice cancelling ECT’s WWCCC under s23 of the Act was issued on 7 November 2019. ECT’s application for administrative review was filed on 15 November 2019 which means it was filed in accordance with s27(2) of the Act.

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

17. In this administrative review, neither party bears the onus of proof. There is no presumption that ECT 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.’

18. 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”.

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

20. The issue for us as required by s 18(2) and s 23 of the Act is whether ECT, 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”.

21. 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.

22. 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’.

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

1. 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).

2. 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).

3. 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.”

1. 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).

2. 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.”

   24. 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).

   25. 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).

   26. 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]).

   27. 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 ECT, 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.

   28. 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.

   29. 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’.

   30. 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.

   31. 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.

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

   33. 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

34. ECT filed the following written material:

• Application filed 15 November 2019 and attached bundle of documents (A1)

• Report of Ms Manja Van Rhijn, Psychologist, 30 January 2020 (A2)

• Reference from ECT’s employer, 11 December 2019 (A3)

• Report of Psychologist, Amara Inostroza, 27 March 2018 (A4)

35. The respondent filed the following written material

• S58 documents filed 27 November 2019 (R1)

• Further bundle s58 documents 2 March 2020 (R2)

36. ECT appeared in person. The respondent was represented by Counsel.

37. During the hearing, ECT gave oral evidence and was cross-examined by the respondent’s counsel. Written submissions were relied upon by Counsel for the respondent. Each party also made oral submissions at the conclusion of the hearing.

ECT’s Background

38. Family and Community Services (FACS) received via its helpline a number of notifications concerning ECT and his brothers in about November 2007. Reports made to FACS included incidents of physical abuse of ECT and homelessness. Similar reports were made in relation to ECT’s brothers. In June 2008, when ECT was 14 years of age he was placed into a temporary care arrangement. In September 2008, ECT was placed under the parental responsibility of the Minister.

Allegations relating to ‘C’

39. ECT in mid-2009 formed a relationship with a young lady of similar age to whom I have referred as ‘C’. At (Exhibit R1, page 468) a report was made to FACS in relation to C feeling intimidated and harassed by ECT. An interim Apprehended Domestic Violence Order (ADVO) was commenced to protect C against ECT on 6 January 2010 (Exhibit R1, page 129). The ADVO included standard orders that ECT must not assault, molest, harass, threaten or otherwise interfere with C’s person or a person with whom C has a domestic relationship. ECT was restrained from engaging in any other conduct that intimidates C or a person with whom C has a domestic relationship. ECT was also ordered not to stalk C or a person with whom she had a domestic relationship.

40. On 13 March 2010, ECT was arrested and charged with contravening the ADVO. It is unclear in the documents found at (Exhibit R1, page 134) what the facts and circumstances were in relation to that alleged breach.

41. On 30 July 2010, ECT attended the home of C at 7.55 a.m. The FACS records (Exhibit R1, page 475) record that ECT telephoned C requesting her to open the front door. C opened the front door of her premises to observe ECT sitting on the front stairs of the house. ECT entered C’s home and walked into the kitchen where C was. After a short period of time ECT is alleged to have placed his right arm around the shoulders of C and placed his left hand on her left leg. C told him to not touch her and he stopped immediately and moved back to the other side of the loungeroom. C asked ECT to leave which he did. An argument ensued about C wanting to smoke. C became frightened and believed ECT was going to physically harm her. After a further argument ECT left the premises. Fifteen minutes later ECT telephoned C and requested her to open the front door. C terminated the telephone call and ECT began to knock loudly on the front door of her premises allegedly yelling ‘… let me in’. ECT allegedly went to the back of the home and whilst looking through the kitchen window again was yelling ‘… let me in’. ECT returned to the front of the home and is alleged to have said ‘Let me in [C]. We need to talk. If you don’t let me in I will let your dogs go’. ECT was arrested and charged with stalk/intimidate and remain on enclosed land, and a provisional AVO was issued. On 21 January 2011, ECT was sentenced at the Parramatta Children’s Court and dealt with under s33(1)(A)(I) in relation to the remain on enclosed land charge and s33(1)(B) of the Children (Criminal Proceedings) Act 1987 where he received a 12 month good behaviour bond for the stalk/intimidate intend to fear physical etc. harm.

42. On 8 August 2010, ECT was involved in a physical altercation with his brother and other family members. ECT armed himself with a pair of scissors. His brother was armed with a 2 metre plank of timber. He was charged with breach of bail, which was dismissed on 9 December 2010 at the Hornsby Children’s Court pursuant to s33(1)(A)(I) of the Children (Criminal Proceedings) Act 1987 (Exhibit R1, page 66). At the same hearing he was convicted of affray and received a bond pursuant to s33(1)(B) for 12 months supervised by Juvenile Justice.

43. ECT was charged with breaching bail conditions on 1 and 16 October 2010. He also breached bail conditions on 6 November 2010.

44. We note that all of these offences occurred at a time when ECT was a child more than 10 years ago. The weight we attach to them is nominal.

45. Later in his adolescent years ECT gained an appreciation for music. ECT completed his schooling with a youth service in Sydney. He was successful in a number of music competitions and adopted a stage name.

46. In late 2016, ECT participated in delivering a music program for young people at the same youth service where he completed his schooling. It was as a result of his participation in this program that ECT made an application to the respondent for a WWCCC on 18 November 2016.

47. ECT on 19 September 2016 was appointed as a member of a youth advisory board related to a Department within the New South Wales Government. That appointment ceased after him being removed from the role on 30 March 2019 (Exhibit R2, page 515). ECT asserts he had no knowledge of being appointed to the youth advisory board.

Allegations relating to ‘A’

48. A was a student at the school associated with the youth centre. ECT was a contractor delivering a music program at the school in his role as mentor/coach. An email from a senior administrator of the school dated 1 February 2018 raises the alleged involvement of ECT and A via social media. A number of screen grabs allegedly passing between A and ECT are attached to the email (Exhibit R1, page 174-175). One of the attachments (Exhibit R1, page 153) includes a photograph of ECT and a young lady.

49. FACS via its helpline service received a report on 2 February 2018 that ECT was in a relationship with A. The caller was told by the New South Wales Ombudsman to make the report to the FACS helpline. The caller was unable to identify whether ECT and A were in a sexual relationship. FACS determined that the report did not meet the criteria for being a risk of significant harm to A.

50. Despite the findings of FACS, a report was made by the youth service to the New South Wales Ombudsman on 19 February 2018. The notification is recorded in the New South Wales Ombudsman’s letter to the respondent dated 7 December 2018 as follows:

‘On 19 February 2018, we received a notification from [the youth service] in regard to ECT, a contractor with [a music program] which had been engaged by [the youth service] to work with students at its school.

In December 2017, allegations had arisen that ECT had engaged in inappropriate communication via social media with a then 16 year old female student. From the information provided to us by [the youth service], we identified that ECT had never obtained a WWCCC, notwithstanding that [ECT] appears to have worked at [the school] for most of the 2017 school year. When first engaged by [the music program], he obtained an application number but did not complete the application process; when this was queried by [the youth service] some months later, he obtained a further application number but again did not proceed to complete his application.

In July 2018, [the youth service] advised us that it had become aware that ECT was the subject of an AVO taken out by the young person. (Event number recorded). Our enquiries indicate that there is some further criminal history that may be relevant to any risk assessment you undertake - the following reference numbers are relevant [event numbers].’

51. ECT was asked to step down from his role with the music program pending the outcome of an investigation on 12 March 2018.

52. A number of personnel from both the music program, the youth service and students at the school were interviewed. ECT on 10 May 2018 was notified of the allegations being made against him.

53. On 17 May 2018 (Exhibit R1, page 287) ECT admitted he worked with A at the youth service in 2017. He denied a number of allegations including: seeing A outside of the youth service; going on holiday with her; sexual misconduct and other inappropriate conduct with A. ECT admitted that he did correspond with A via social media, but denied that it was inappropriate and that the communication related solely to the music project. Specifically, ECT denied a number of the screenshots that were contained in the information forming part of the investigation were text messages passing between him and A or indeed were ‘fake’.

54. After providing the youth service with an email explaining the images depicted in conversations on social media between himself and A the youth service completed its investigation.

55. On 21 June 2018, the youth service found that ECT had communicated with A via social media but found it did not cross the threshold of reportable conduct and was unable to sustain allegations concerning:

• ECT engaging in a personal relationship with A.

• ECT travelling with A on a holiday.

• On 7 June 2018 and 12 June 2018 ECT had contact over social media with a youth service student which did not amount to reportable conduct but that it was a direct breach of the youth service’s code of conduct.

Alleged assault and AVO taken out to protect A from ECT

56. On 9 July 2018 a senior administrator of the youth service’s school had a conversation with A. A disclosed that:

• She and ECT were in a relationship.

• She took an AVO out against ECT.

• The relationship and investigation caused her a lot of stress and affected her attending school.

• ECT physically assaulted her and stalked her and would call her repeatedly, turn up at her house, school route and whilst she was at work.

• ECT used to drive her to school.

57. A told the administrator she was extremely worried that ECT will find out that she has spoken to the administrator. Upon receiving this information the youth service barred ECT from attending further events. That bar was still in place at the time of this hearing. The youth service again notified the New South Wales Ombudsman about these allegations.

58. In records obtained from the NSW Police Force (Exhibit R1, pages 74 and 88) facts were presented to the Local Court at Sydney in relation to an Apprehended Violence Order. A summary of those facts follow:

• ECT and A began a relationship in December 2017. ECT and A did not have a permanent residence together and would stay at each other’s home addresses. There are no children as a result of their relationship.

• On Wednesday 2 May 2018 A ended the relationship with ECT. A allegedly ended the relationship with ECT due to ongoing verbal and emotional abuse. A told ECT on ending the relationship that she did not want to see or have contact with him anymore. A blocked ECT’s phone number and deleted him from social medial account.

• Since the date of the separation ECT has continually attempted to make contact with A. A alleges on some days ECT would call her on her mobile phone over a hundred and fifty (150) times. ECT would use a private number when making these calls in an attempt to get A to answer.

• On Saturday 20 May 2018, A was at work in a [café in Sydney] A worked for [deleted] a business located [an entertainment complex] [deleted].

• At about this time ECT was working near A’s place of employment. About 12.00 p.m. on Sunday, 20 May 2018, whilst at work, A saw ECT standing at the front of the cafe. A walked up to ECT and said ‘What are you doing here? You just can’t show up at my work’. ECT allegedly said ‘Wait can you just give me a second to explain myself, I only came here for a drink.’ A said ‘No you didn’t just come here for a drink. I know exactly why you are here’. ECT said ‘Please can you just give me a second.’ A said ‘No you have to leave’.

• A left the café and was standing outside the toilet block. She was speaking with her housemate on the telephone when she heard ECT call her name. She turned around ECT was standing in front of her and begged her to take him back and that he wanted to talk. A again asked ECT to leave. ECT attempted to hold A’s hand and said to her ‘Can you please hold my hand why [sic] I talk to you’ A said ‘No, leave me alone, do not touch me.’ ECT allegedly stepped closer towards A forcing her to step backwards. A felt shocked and confused by this behaviour. A walked away and ECT yelled out to her.

• On 28 May 2018, at 5.24 p.m. A received a message on Instagram from ECT. He stated ‘A it’s ECT. I need you to please call me ASAP. This has gotten a lot worse, it’s going to Court, need to chat’. A second message appeared stating ‘I just made up this account so I could contact you’. A did not reply to these messages.

• About 11.00 a.m. on 8 June 2018, A was at home. She received calls from a private number on her mobile phone. A had previously ignored private numbers because ECT constantly called her using a private number. On this occasion A had contractors to do work at her house. She answered the phone and heard ECT’s voice. She said she did not want to talk to him and ECT asked if he could come around to her house to talk. A said she would call the police if he came around. ECT said he was in the local area and was going to come around. A hung up the phone and became scared. A and her housemate locked all the doors and windows and called the police.

• While waiting for the police A received 92 calls from a private number and alleges it was the defendant attempting to contact her. Police sighted the mobile phone log history for 3 June 2018 and sighted over 50 calls by a private number on A’s phone.

59. A provisional AVO was put in place preventing ECT from having any contact with, assaulting, stalking, harassing, intentionally or recklessly destroying property of A. ECT was also restrained from going within 100 metres of A’s home, place of work and another address listed in the order.

60. The AVO was initially listed for hearing on 13 June 2018. ECT did not appear. On 27 June 2018, ECT appeared at the Local Court of New South Wales in Sydney. Magistrate Mottley made final orders (without admissions). The order was made for 12 months and included a condition that ECT was not to approach or contact A in any way.

61. At this juncture it is a persuasive factor we have taken into consideration in determining this matter that ECT did not oppose and defend the AVO, despite him saying, he had evidence to disprove matters such as the number of alleged telephone calls. His reasons for not doing so are discussed below.

62. On 6 February 2019, a report was received by the FACS helpline (At Exhibit R2, page 505). A caller advised FACS that ECT had once driven A to Queensland. A apparently indicated to ECT she wished to leave him and she was physically assaulted. The caller reported that ECT had breached the conditions of the AVO. There is no evidence before us that a complaint made was made to police or any action taken as a result of those allegations. ECT denies the allegations. Given the lack of additional evidence, we cannot make a positive finding that the assault occurred.

The evidence of ECT

63. As set out above, ECT was not legally represented during the hearing. We, as much as possible, assisted ECT through the hearing process and granted him additional liberties in terms of his evidence.

64. Annexed to Exhibit A1 is a written statement of ECT which we have set out in full:

‘My name is ECT, I have received a cancellation of working with children check, I was given a clearance but it has now been taken away from me. I have been speaking with Joanna Mrakovcic from the Office of the Children’s Guardian. I feel my situation is not being treated fairly.

Firstly I am almost a 26 year old male who experienced a tough childhood as a minor, experiencing homelessness, sleeping next to bakeries for warmth, separated from my twin brother, kicked out of school, thrown into foster homes and refuges. Long story short I managed to transform my life through finding people who believed in me and using music as therapy.

My dream now is to raise awareness for homelessness and help other young people through my story, which is exactly what I’ve been doing. I was working as a youth worker and music mentor with [a music program] which I am currently [associated with] [anonymised].

From a broken childhood I went on to complete my degree at university, represent Australia [at an international performing arts event and have received accolades in the community]. I have also went on to maintaining two fulltime jobs, [deleted] along with living independently since the age of 18.

I feel that I have not been treated with the respect I deserve, I feel that the Office of the Children’s Guardian is character defaming me. In previous phone conversations with them they suggested I see a ‘counsellor’ or see someone about my ‘issues’. I feel very disrespected, my childhood is not something that is following me to adulthood, in fact I’m using my upbringing to help inspire others going through difficult situations.

I would like there to please be a more in depth investigation in my case to prove that I am capable with working with children as I have been for a long time. I am positive my references will help prove this point.’

65. A further statement in the bundle dated 1 October 2019 signed by ECT denies the allegations made by A in the AVO matter. ECT explains that through his music he is a public figure and describes the youth he mentors/coaches as being unstable and dealing with past traumas. He says that as a result of his high public profile and the vulnerability of the young people he is involved in that he is a victim of false allegations.

66. ECT clearly demonstrates in his evidence that he has turned his life around from being himself a troubled young person, to a respected performer improving the lives of other young people. This is not in dispute and is a positive factor towards his good character. However, it is not the only factor we must consider in evaluating whether ECT is a real and appreciable risk to the safety of children.

67. In cross-examination the response ECT provided to the youth service as part of its investigation (Exhibit R1, page 207-209) was put to him. ECT accepted that his response was true to the best of his knowledge. He denied being in a relationship with A. He said he was in a relationship with someone else but refused to provide the person’s first name as he did not feel it was relevant. ECT agreed that an AVO was taken out by A in June 2018 but denied he was in a relationship with her and the allegations made.

68. As part of ECT’s evidence, a report of Amara Inostroza, Clinical Psychologist, was relied upon (Exhibit A4). ECT was asked questions concerning a reference to ECT having anger issues, and the main trigger in terms of anger related to a relationship with his then partner who had the same name as A. The reference to ECT being in a relationship with a person bearing the same name as A was suggested to have been for a period of three years at the time of his assessment in March 2018. The following exchange took place:

‘Q   In March 2018, you were in a relationship with a person called A?

A   I was not in a relationship.

Q   Did you tell Ms Inostroza that you were?

A   To the best of my understanding.

Q   You told Ms Inostroza that you had been in a difficult relationship with a person called A?

A   I had difficulties with a person in a relationship.

Q   Was it A?

A   I’m not answering.

Q   Do you agree that you told her you were in a relationship with a person called A?

A   Yes.

Q   It was true?

A   Yes.

Q   You told her you were jealous and controlling?

A   Yes.

Q   Did you go through her phone to check her phone to see other men?

A   It was a problem in the past, not this relationship.

Questions were asked in relation to Ms Inostroza’s clinical notes.

Q   Please look at [Exhibit R2 page 63]. In the first paragraph it refers to going through a phone to check if she had communicated with other men and the relationship was for 3 years long.

A   Yes I said this.

Q   The notes say you described a relationship with A as volatile. You reported jealousy, lots of arguing and threatening to leave each other and dependency on each other. ECT said his anger escalated to verbal abuse, he denied physical abuse. For example, he said he would get jealous of the pictures of [A] would post on her social media, this would start an argument which escalate [sic] to yelling, then A would taunt him by saying ‘hit me’. ECT disclosed he would call her a bitch and A would walk out. ECT said A would threaten to leave him and would intentionally provoke his jealousy by contacting other men, or posting a provocative photo of her semi-naked on social media.

A   Yes I said this

69. The cross-examination went on:

‘Q   This was the truth.

A   Yes to the best of my understanding.

Q   You saw Ms Inostroza to get help about these things and with relationships?

A   Yes.

Q   Was the relationship with A ended in May 2018?

A   For an off period we were on and off.

Q   Do you agree subsequent to that A obtained an AVO against you?

A   Yes she did.

Q   The person who you went to see Ms Inostroza on 23 March 2018 is the same person who took an AVO out against you in June 2018.

A   No I don’t agree, page 72 of R2 states that she was in a nightclub. And I got her kicked out.

Q   Do you intend to convey that you were talking to a different person called A.

A   Yes.

Q   I suggest you are lying, because the person A is the same person who took out an AVO.

A   I do not agree.’

70. The reference made by ECT in the clinical notes of Ms Inostroza relating to a person being kicked out of a nightclub by the same name as A is found at page 72.

71. We do not accept ECT’s evidence that the reference to A in Ms Inostroza’s clinical notes and report (A4) is a different person to A in the AVO taken out in June 2018. In particular, Ms Inostroza reports the following in her clinical notes, which related to a session with ECT on 21 May 2018 (R2, page 72):

‘Current state and issues reported by client:

•   ECT reported A had ended their relationship one week ago. He said last Tuesday was the last day they had spent together. ECT said he had phone contact with her on Tuesday but she did not want to see him

•   he reported he had written a letter

•   ECT stated his friend was a security guard at a club and this friend had told ECT that A was at the club he was working at. ECT said he got his friend to kick her out of the club because he did not want her there.

ECT stated A worked at a coffee shop and he had waited outside so he could talk to her and give her his letter.

•   ECT reported he was trying to win her back. Clinician suggested ECT give A space. ECT said A would typically change her mind but this time was different.’

72. In clinical notes of 29 June 2018 Ms Inostroza records that ECT disclosed he was issued an AVO on the 8^th of June. He reported that A had filed an AVO against him for harassment. The order was active for twelve months. He is not to contact or approach her.

73. The reports to Ms Inostroza concerning the incidents and interactions between ECT and A are strikingly similar to the facts to which ECT did not defend in the AVO proceedings. The timeline is consistent in relation to allegations made by A against ECT in the AVO and with the clinical notes of Ms Inostroza. Indeed, on 21 May 2018, the day after A alleges that ECT appeared at the café where she worked in the AVO facts (20 May 2018), Ms Inostroza records ‘ECT reported he was trying to win her back [A]…’ [our emphasis]. Ms Inostroza also references ECT telling her that he appeared at A’s place of work, a café, to hand her a letter. We do not accept ECT’s explanation that the person named A in the AVO is a different person who also has the name A as referred to in the records of Ms Inostroza. We are satisfied on the balance of probabilities that ECT has not been forthright and honest in relation to the identification of A in these circumstances.

74. ECT was further cross-examined on whether the reference to A in Ms Inostroza’s report was a reference to the same person pertaining to the allegations in the AVO. We find that ECT was evasive in answering these questions in an attempt to distance himself from a finding that the reference to A in the AVO was a reference to A from the youth service to whom the internal investigation related.

75. ECT was asked further questions in relation to his allegation that he was in a relationship with another person called A and he refused to do so. His evidence did not assist him in terms of us accepting ECT as being a reliable witness.

76. Counsel for the respondent asked ECT about the facts and circumstances relied upon in the AVO. He said after consulting with a representative from Legal Aid who explained the process, ECT said he consented to the AVO without admissions. ECT said that he was never in a relationship with a person by the name of A from the youth service. He specifically said ‘I have mentioned this before, I was left in the dark. I was a guest speaker. That was the situation. I was told by I guess the manager of [the music program] that the girl had a crush on you. She told her friends. There was comment on social media, I provided this. I did not realise she took the AVO herself. I thought [the youth service] took it on her behalf.’ ECT in his written evidence denied that he was aware A was a student at the school and believed her to be an ex-student.

77. A number of other aspects of the factual circumstances concerning the AVO were put to ECT. These included that he sent an email to a person called A on 25 May 2018, that he created a social media account to talk with her and opened a new Instagram account to send her a message. ECT denied he had ever attempted to call A from the youth service on a private number.

78. In relation to the 50 telephone calls alleged to have been made to A, ECT denies they were from him and said he provided his telephone records to the youth service. These records were not in evidence, nor were they contained in the documents produced by the youth service which were before us.

79. Counsel for the respondent asked ECT why he did not tender his telephone records in the AVO hearing before the Local Court. ECT said he had those records when he attended Court but he was going overseas and had no contact with A and had ‘no reason to fight it’ referring to the AVO. He said he was ‘not going to have any contact with her.’ The following cross-examination took place:

‘Q   You agreed because the allegations are correct?

A   No, I was going overseas, I had no contact with her and no reason to fight it. I was not going to have any contact with her.

Q   But you knew these allegations were false and you had records to show this?

A   Yes I had access to them.

Q   Despite this you agreed to the AVO based on false allegations?

A   No, I took advice so I did not have to come back, I was going overseas [deleted] and had no time to come back. I was going to have no contact with her so it did not impact my life. It would impact my life if I had to go and explain, I did not have time.

Q   I suggest you lied to this Tribunal about your account of the matters leading to the AVO.

A   Incorrect.’

80. We do not accept ECT’s explanation as to why he did not defend the AVO. It may have been the case that ECT just wanted the matter finalised so he could travel overseas. However, it is unclear as to why a person who had evidence to defend the AVO would not have done so simply on the basis that he ‘did not have time’ and ‘was not going to see the protected person’. In these proceedings we find that the more likely reason that ECT did not defend serious allegations made against him was because they were in the main part true. Our finding in this regard is bolstered by the notes recorded by Ms Inostroza and our findings made in that regard. ECT’s unwillingness, despite his explanation, to defend the AVO is a cumulative factor which leads us to the conclusion that the most likely person the reference to A in Ms Inostroza’s notes is the same person whose name is A referred to in the AVO proceedings.

Report of Ms Manja Van Rhijn

81. ECT relies upon a report of Ms Van Rhijn dated 30 January 2020. Ms Rhijn is a Psychologist. ECT attended 3 sessions at Ms Van Rhijn’s clinic commencing on 3 December 2019, 6 January 2020 and 28 January 2020. ECT was referred under a mental health care plan by a general practitioner.

82. ECT provided a history concerning a complaint made against him involving an interaction with a young person whilst working at a youth service. It is recorded that he said an internal investigation was undertaken and completed and it was found the allegations were not sustained. The psychologist concludes ‘While I am unable to guarantee what ECT’s future will hold, his current presentation along with his strong protective factors suggest a low risk factor to young people and children.’

83. ECT was cross-examined as to whether he reported to Ms Van Rhijn that he was the subject of an AVO concerning the same person to whom the internal investigation by the youth service was commenced. The cross-examination traversed the clinical notes of Ms Van Rhijn which disclosed no reference to any AVO. ECT said that he did refer to the AVO in session with the psychologist and could not provide an explanation as to that part of the history not being referred to in her report.

84. We have attached little weight to the report of Ms Van Rhijn. Ms Van Rhijn has not set out a full and complete history concerning ECT in accordance with the documentation currently before the Tribunal, particularly the AVO matter. It is unclear to us as to whether Ms Van Rhijn had all of this information before her.

85. Ms Van Rhijn has not applied any of the usual risk assessment tools in forming her opinion concerning any risk ECT may pose to the safety of children. The report provides little assistance to us in assessing whether ECT is a real and appreciable risk to the safety of children.

The Report of Amara Inostroza

86. Ms Inostroza provided a report concerning an assessment undertaken of ECT on 27 March 2018. The report has been discussed exhaustively above.

87. We acknowledge that ECT has undertaken some counselling in relation to his history of emotional dis-regulation concerning relationships. At its highest, the report and opinion of Ms Inostroza demonstrates ECT’s willingness to undergo counselling in relation to his ability to regulate his emotions and strategies to deal with his temper, anger and volatility.

88. The report and opinion of Ms Inostroza does not in our minds address in any meaningful way ECT’s risk to the safety of children or young persons.

Character references relied upon by the applicant

89. As best as possible the Tribunal has anonymised the references of various prominent members of the community, and employers of ECT, which he relies upon. Our anonymisation in no way reflects the standing of the referees.

90. In the first reference of 1 October 2019 authored by a member of local government, ECT is referred to as a ‘remarkably active’ person within his community. In his public appearances and performances he inspires young people. The referee commends ECT to continue to be able to support and work with young people and identifies his determination and positive attitude which makes him an outstanding young man.

91. In a further reference completed by a case worker with a community out of home care group, the referee identifies the valuable contribution ECT has made to working with young people. He is described as being an outstanding worker, humanitarian and member of society. Support is provided for his ability to work with young people.

92. A similar reference has been submitted and relied upon by a homeless person’s group where ECT has represented the charity in a professional manner and has always engaged with each person in its program making them feel comfortable. He is described as an invaluable member of the organisation’s volunteering program.

93. It is without doubt that ECT is recognised by many community organisations, members of local government and others as an outstanding contributor to community activities, particularly working with troubled youth. Each of his referees attest to his good character. Whilst we accept the references on their face, they are replete of any acknowledgement of the AVO and investigation undertaken by the youth service concerning his involvement with a young student. In these circumstances, little weight can be attached to them, notwithstanding ECT’s contribution to the community and references attesting to his good character.

Section 30 (1) considerations

94. 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.

95. The allegations concerning ECT being in a relationship with A are serious as they relate to a breach of trust, given the position of ECT as a mentor/coach of students at the youth service.

96. We are unable to make any positive finding that ECT physically assaulted A based on the evidence before us.

97. The allegations concerning C occurred at a time when ECT was 16 years of age. ECT had little recall in terms of these allegations. The highest the Tribunal can give weight to these allegations is that ECT’s behaviours are similar in terms of his volatility concerning dealing with relationships as compared to the allegations concerning A.

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

98. The matters regarding C occurred on 30 July 2010 (almost 10 years ago). The allegations concerning A are more recent, having occurred during the period of December 2017 to June 2018.

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

99. ECT was 24 years of age in relation to the matters concerning A and 16 years of age in relation to the matters concerning C.

(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.

100. A was 16 years of age and turned 17 in March 2018. A was vulnerable as she was a student at the school. The relationship by its virtue creates vulnerability. Additional evidence as to A’s vulnerability is that she had been placed under the care of the Minister.

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

101. The age difference between A and ECT was 8 years. In relation to the allegations concerning C, there is little difference between the ages of C and ECT.

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

102. ECT said in evidence he was unaware of A’s age. However, given that A was a participant and engaged in the youth service to which ECT was a mentor/coach, he ought to have known that she was a child.

(g) The person's present age.

103. ECT at the time of hearing was 26 years of age.

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

104. ECT’s criminal history has been set out above. Whilst some of the criminal matters that relate to ECT are serious, they are at the lower end of the criminal range and each of those, apart from the AVO concerning A, occurred at a time when ECT was himself a child.

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

105. ECT provided expert evidence in relation to his likelihood of repetition and risk to children (report of Ms Van Rhijn). For the reasons as set out above, we have placed little weight on that report. The cumulative factors concerning similar behaviours of ECT in relation to C and A are instructive. We are not confident at this point of time that ECT has undertaken counselling and professional assistance to deal with problems within his personal relationship. Ms Inostroza in her clinical notes states ‘ECT reported “I can’t do any better”. Clinician reported that ECT had been disadvantaged by his past but could now learn better ways of framing relationships and building coping skills 29.6.18’. In our view there is a reasonable likelihood that ECT may repeat similar behaviours which have been identified in the facts and circumstances presented at the AVO concerning A. There is no evidence of ECT having participated in any significant professional counselling dealing with these issues. We have found that ECT formed a relationship with A, a child and he subjected her to harassment and intimidation in the context of their relationship ending. We are not satisfied on the balance of probabilities that ECT has demonstrated that there is a low risk of him repeating behaviours similar to those as set out in the facts pertaining to the AVO. The safety of children must be held paramount. We are not satisfied that the evidence establishes that ECT is not a real and appreciable risk to the safety of children.

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

106. There are none applicable.

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

107. Evidence and information supplied by ECT has been set out above.

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

108. There are no matters known.

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

109. The respondent made oral submissions to the extent that we have sufficient evidence before us that a finding can be made that ECT was in a relationship with A and subjected her to harassment and intimidation in the context of their relationship ending. We accept these submissions. It was submitted that we can find, having reviewed the objective evidence, that ECT took A on a holiday and caused physical injury. For the reasons as set out above, we are unable to make a positive finding in this regard.

110. The respondent submitted that ECT’s evidence concerning the facts and circumstances which relate to the AVO and A are unbelievable. For the reasons set out above, we accept that ECT was not a reliable witness in regard to this aspect of his evidence. Generally, the respondent contends that there is sufficient evidence before us to affirm the cancellation of ECT’s WWCCC and that a finding be made he is a real and appreciable risk to the safety of children.

Our consideration

111. ECT by his own admission had contact with A via social media. He says this was limited to interacting with her in relation to the music program he was involved with at the youth service. The internal investigation by the youth service made no positive findings in relation to other social media contact that was included in the initial investigation. Likewise, we are unable to positively find that ECT communicated with A over and above that communication which he has admitted to, however, we have a lingering suspicion that he did.

112. As set out above, we do not accept ECT’s evidence that the reference to A in Ms Inostroza’s report is a different person to the person referred to as A in the AVO. We have found ECT to be an unreliable witness in terms of his evidence in this regard. We find that A referred to in the reports of Ms Inostroza is the same person as A referred to in the AVO proceedings. In this regard we find that ECT was in a relationship with A from the youth service and that that relationship commenced at a time when A was approximately 16 years of age. We find that ECT subjected A to harassment and intimidation in the context of their relationship ending. We find that ECT, being approximately 8 years her senior, and in a position of trust, being a mentor/coach, inappropriately commenced and continued a relationship with her. ECT did not defend the allegations made against him in the AVO proceedings. The effects of ECT’s behaviour at the end of the relationship has materially affected A. Given that ECT’s behaviour relates to serious matters of intimidation and harassment, and there are similarities in that conduct to which ETC was subject to an AVO as it related to C, he in our minds presents as a real and appreciable risk to the safety of children.

111. ECT has undertaken minimal counselling in relation to the difficulties he has in emotional regulation concerning relationships. In our minds further counselling and treatment needs to be undertaken by ECT as set out by Ms Inostroza.

112. Given the vocational desire of ECT, the magnitude of risk and potential harm to children or young persons is real and appreciable, having considered all of the information before us concerning ECT’s previous behaviours, particularly those matters relating to the most recent AVO in 2018 and the application must be refused. The welfare of the child is paramount and when the question being posed before us concerns the risk of harm to children we must err on the side of caution. In all of the circumstances we are not satisfied, having considered all of the relevant facts, applicable law and material before us, that ECT does not pose a real and appreciable risk to the safety of children.

113. We acknowledge the commendable effort ECT has contributed to his community and his desire to improve the lives of vulnerable youth. His references in this regard are complementary to him pursuing this vocation. However, the evidence does not establish that ECT at this point in his life has the ability to regulate his emotions concerning relationships, particularly where one of his recent relationships commenced when A was a vulnerable child, that we could find that his WWCCC should be reinstated. We cannot ensure the protection and safety of children given our findings concerning ECT commencing a relationship with A whilst in the role as a coach/mentor at the school. ECT has denied the relationship with A. In that regard there is no evidence before us that ECT considers the relationship with A to be inappropriate in the circumstances in which it was formed. To the contrary, because of his denial, we infer otherwise.

114. The decision of the Children’s Guardian made on 7 November 2019 to cancel the WWCCC granted to ECT is affirmed.

Section 30 (1A) consideration and findings

117. Given our finding to affirm the decision of the respondent, we have not addressed the additional provisions as set out in s30(1A) of the Act.

Orders

1. The decision of the Children’s Guardian dated 7 November 2019, cancelling ECT’s working with children check clearance is affirmed.

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

Registrar

Decision last updated: 21 July 2020