FND v Children's Guardian

[2024] NSWCATAD 125

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FND v Children’s Guardian [2024] NSWCATAD 125

Hearing dates:

26 October 2023, 8 December 2023
(Submissions closed 15 January 2024)

Date of orders:

15 May 2024

Decision date:

15 May 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member
E Hayes, General Member

Decision:

FND’s application for an enabling order under s 28 (1) of the Child Protection (Working with Children) Act 2012 is dismissed.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable – enabling order – passage of time – continued risk – insight – candour – obligation to disclose

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998

Child Protection (Prohibited Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Child Protection (Working with Children) Regulation 2013

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Crimes Act 1900 (ACT)

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8

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

BFC v The Children's Guardian [2014] NSWCATAD 90

BFX v Children's Guardian [2014] NSWCATAD 115

BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164

BKE v Children’s Guardian [2015] NSWSC 523

CHB v Children’s Guardian [2016] NSWCATAD 214

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

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

CXZ v Children’s Guardian [2020] NSWCA 338

M v M (1988) 166 CLR (HCA)

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

R v Commission for Children and Young People [2002] NSWIRComm 101

Category:

Principal judgment

Parties:

FND (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s):

2022/00260525

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, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

1. This applicant seeks an Enabling Order under s 28 of the Child Protection (Working with Children) Act 2012 (‘the Act’) so that he can obtain a Working with Children Check Clearance (WWCCC). The applicant seeks an Enabling Order, as they are a ‘disqualified person’ under the Act.

2. The applicant is referred to as ‘FND’ in these proceedings. FND is the applicant's pseudonym used in these proceedings in conformity with an order made on 15 August 2022 under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

3. On 1 September 2022 FND filed an application with the Tribunal. That application seeks an Enabling Order under s 28 of the Act. FND seeks a finding by the Tribunal that he does not pose a risk to children, and as a result an Enabling Order under section 28 of the Act should be issued by the Tribunal.

4. These proceedings arise because on 21 December 2017, the Children's Guardian who is the respondent or contradictor in these proceedings issued FND with a Notice of Final Decision to Disqualified Person pursuant to section 18 of the Act. FND had been convicted of a disqualifying offence within the meaning of the Act and as a result (subject to review and the issuing of an Enabling Order by the Tribunal) is prohibited from obtaining a Working With Children Check Clearance (WWCCC). The disqualifying offence is: Possess child pornography (2 counts) pursuant to s 92NB of the Crimes Act 1900 (ACT) (since repealed).

Background

5. On 6 December 2017 FND applied to the Children’s Guardian for a WWCCC. On 21 December 2017 the Children’s Guardian determined that FND had been convicted of the offences outline at [4] above. As a result of this determination FND became a disqualified person in accordance with the Act and the WWCC was statutorily refused.

6. On 1 September 2022 FND lodged an administrative review application with the Tribunal (FND was actually seeking an Enabling Order which is not an administrative review). In any event that application was filed more than four and a half years out of time. On 15 September 2022 the Tribunal made an order pursuant to s 41 of the NCAT Act, extending the time for FND to lodge his application to 1 September 2022 thus giving jurisdiction for the Tribunal to hear the application.

7. FND is a disqualified person because he has been convicted of an offence listed in Schedule 2 of the Act. That offence was in the nature of possessing child abuse material (child pornography) which occurred outside of New South Wales, in the Australian Capital Territory (ACT) in September 2000. The specific charge for this offence is described as Possess child pornography (2 counts) pursuant to s 92NB of the Crimes Act 1900 (ACT).

8. At the conclusion of the evidence and submissions the Tribunal finds for the reasons which follow, that FND remains a real and appreciable risk in respect of the safety and wellbeing of children, and that as a result he has failed to rebut the statutory presumption that he is a risk to the safety and wellbeing of children. In such circumstances the Tribunal will not grant FND an Enabling Order and his application will be dismissed.

9. In December 2017 FND applied for a Working with Children Check clearance from the Children’s Guardian. It appears to the Tribunal that FND required a WWCCC so that he may work in broader areas than his current professional discipline of allied health work. Following his conviction FND was prohibited within his profession from treating persons under 16 years of age. In 2004 this prohibition was lifted subject to psychological treatment and various conditions.

10. Having made the WWCCC application to the Children’s Guardian and having been issued a mandatory Notice to Disqualified Person, and now seeking an Enabling Order before the Tribunal, it appears appropriate to determine the application as made. Based on the 2017 application to the Children’s Guardian, the mandatory refusal due to the schedule 2 matter, and the application to the Tribunal on September 2022 and subsequent extension of time two weeks later, the Tribunal clearly has jurisdiction to grant or refuse the application as set out above.

11. The 'Notice to Disqualified Person pursuant to section 18’ issued on 21 December 2017, whereby on their assessment, FND was a disqualified person as referred to in s 18 (1) of the Act.

12. Section 18 provides:

18 Determination of applications for clearances

(1) The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

(2) The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3) The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

13. The basis of this assessment was that records indicated that the offences referred to above concerning matters in the Australian Capital Territory (ACT) had been proven against FND.

14. The Act provides that similar offences (in respect of elements / proofs) committed in other jurisdictions in Australia are taken to be equivalent to relevantly similar offences in New South Wales and can be taken into account as satisfying the requirements of Schedule 1 or Schedule 2 of the Act.

15. Relevantly for the current proceedings Schedule 2 Clause 1 (z) provides:

(z) an offence under a law of another State or a Territory, the Commonwealth or a foreign jurisdiction that, if committed in New South Wales, would constitute an offence listed in this clause,

16. This offence (as proven) is the equivalent offence to that as set out in s 91H of the Crimes Act 1900 (NSW). (Section 91H Production, dissemination or possession of child abuse material). That section provides:

91H Production, dissemination or possession of child abuse material

(1) In this section—

disseminate child abuse material, includes—

(a) send, supply, exhibit, transmit or communicate it to another person, or

(b) make it available for access by another person, or

(c) enter into any agreement or arrangement to do so.

possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)).

produce child abuse material includes—

(a) film, photograph, print or otherwise make child abuse material, or

(b) alter or manipulate any image for the purpose of making child abuse material, or

(c) enter into any agreement or arrangement to do so.

(2) A person who produces, disseminates or possesses child abuse material is guilty of an offence.

Maximum penalty—imprisonment for 10 years.

(3) Proceedings for an offence under this section against a child or young person may only be instituted by or with the approval of the Director of Public Prosecutions.

91FB Child abuse material—meaning

(1) In this Division—

child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive—

(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or

(d) the private parts of a person who is, appears to be or is implied to be, a child.

(2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include—

(a) the standards of morality, decency and propriety generally accepted by reasonable adults, and

(b) the literary, artistic or educational merit (if any) of the material, and

(c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and

(d) the general character of the material (including whether it is of a medical, legal or scientific character).

(3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).

(4) The private parts of a person are—

(a) a person’s genital area or anal area, whether bare or covered by underwear, or

(b) the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.

(Emphasis added)

17. In FND’s application for an enabling order, the grounds of the application are:

1. The seriousness of the offence was at the low end of the spectrum.

2. The time since the offence occurred – 2000.

3. I have been of good conduct since the offence occurred.

4. I have no other criminal history.

5. The low likelihood of any repetition of the conduct. Refer to Psychiatrist report.

Jurisdiction of the Tribunal

18. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature, as set out by the Court when considering s 28 of the Act: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

4 Safety, welfare and wellbeing of children to be paramount consideration

19. The issue to be decided by the Tribunal is whether on the balance of probabilities FND being presumed to be a risk to the safety and wellbeing of children, continues to pose such a risk to the safety and wellbeing of children. In reaching this position the Tribunal is required to consider whether the granting of an Enabling Order would result in a risk to the safety of children if FND was to engage in child related work. If FND is still considered a risk, then an Enabling Order cannot be issued. In determining whether to grant the Enabling Order, the Tribunal must consider the matters set out at s 30 (1) and potentially s 30 (1A) of the Act, so as to determine on the available evidence whether FND is a risk and whether he should be granted or refused an Enabling Order.

20. In reaching that position we are cognisant of the guidance from Courts of record that the risk must be both real and appreciable, not merely any risk. Risk is determined at the time of the decision made by the Tribunal so in that regard the Tribunal is determining an applicant’s current risk when deciding whether or not to grant an Enabling Order.

The working with children legislative scheme

21. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

22. The safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: s 4 of the Act.

23. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

24. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1)(b) of the Act). A child related role is set out in s 6(3) of the Act.

25. FND has not been subject to a risk assessment as the Children’s Guardian identified matters listed in Sch 2 of the Act as referred to above and a Notice to Disqualified Person issued without proceeding to determine his application further.

26. Part 4 of the Act deals with reviews and appeals. Section 28 provides for an application to the Tribunal for an Enabling Order. The section provides:

28 Orders relating to disqualified and ineligible persons

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

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

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

(a) the person has been refused a working with children check clearance, or

(b) the person’s clearance has been cancelled under section 23,

because the person is a disqualified person.

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

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

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

(6A) To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children’s Guardian in accordance with the Tribunal’s order.

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

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

(9) (Repealed)

27. An Enabling Order is dealt with under Part 4 of the Act. Section 30 of the Act applies to all matters dealt with under Part 4 and sets out the factors that the Tribunal must consider in determining a review application in order to determine risk. Section 30(1) of the Act provides:

30 Determination of applications and other matters

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

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

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

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

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

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

(g) the person’s present age,

(h) the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

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

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

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

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

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

28. If at the conclusion of the s 30 (1) process the Tribunal determines that an applicant for a clearance is not a risk to the safety of children, then the Tribunal must consider the matters set out at s 30 (1A) of the Act.

(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.

29. Only after an applicant has successfully navigated s 30 (1) and (1A) can the Tribunal grant an Enabling Order. In this regard the Tribunal engages in a similar process as when an applicant is seeking an administrative review of a decision that they pose a risk (a risk assessment review). However the onus is different when considering whether to grant an Enabling Order as opposed to conducting an administrative review.

Burden of Proof

30. As referred to above there is a statutory presumption that FND is a risk to children as an applicant for an Enabling Order under s-28 of the Act. (s 28(7)).

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

31. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for 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". ...'

32. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

33. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].

34. We note that ‘risk’ has been given a statutory definition in Act at s 5B by reference to ‘risk to safety of children’.

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

The hearing

35. The matter was heard before the Tribunal over one and a half sitting days.

Written Evidence

FND’s written material

36. The applicant filed a number of written items in support of his application.

• The application to the Tribunal attaching the Notice to Disqualified person and citing grounds for his application.

• Undated statement by FND, Dr Howe 3 My 2004, Letter ‘JP’ dated 14 May 2004, Letter from (professional) Board of the ACT undated – Exhibit ‘A-1’.

• Bundle comprising Statement of FND dated 1/8/2023, Statements of FND in response to report of Dr O’Dea, Letter from (professional) Registration Board of ACT July 2004, Psychiatric Report Dr Lucas dated 31/12/2003, Academic Article K Franklin ‘Hebephilia: Quintessence of Diagnostic Pretextuality’. – Exhibit ‘A-2’

• Bundle of 8 attachments concerning emails, screenshots and text messages between FND and third party. – Exhibit ‘A-3’

• Email of FND to third party’s Solicitor December 2021 containing 4 social media posts. – Exhibit ‘A-4’

• Email attaching references from ‘M.N.’, ‘A.M.’ and ‘A.S.’ – Exhibit ‘A-5’

Other material initially generated by FND was provided by him to the Children’s Guardian and provided to the Tribunal in their material. FND Also filed and served written submissions and submissions in reply.

Children’s Guardian’s written material

37. The Children’s Guardian filed written submissions and submissions in reply. They also filed and served the bundles of evidence / material:

• Respondent’s Evidentiary Bundle filed 18 August 2023 and Documents filed 28 September 2023. Exhibit ‘R-1’

• Respondents ‘Second Bundle’ (102 pages) including material obtained from the ACT via summons (and USB Drive of images) - Exhibit- ‘R-2’

• Report of Dr O’Dea Forensic Psychiatrist dated 31 July 2023 – Exhibit ‘R-3’

FND’s evidence at hearing

38. In evidence in chief FND said that he made the application because of the passage of time since his criminal matters and that he was looking to future employment opportunities and potentially registering with the NDIS his current practice / service.

39. In cross examination FND adopted his tendered statements as true and correct to the best of his knowledge. He said that he left High School at the end of year 10 and worked as a clerk and later trained in his allied health discipline which commenced in 1987. FND said that his work then involved work with both adults and children, with children comprising 5%-10% of his cliental. FND said that he had worked for a short period with an insurer in 2000 working in their injury management area. This temporary shift was due to a wrist injury he sustained which prevented FND from running his practice.

40. FND stated that he had not worked unsupervised with children since his conviction in 2001 but that he did have a very small amount of ‘child work’ which was supervised by adults. FND said that his usual client is now aged 50 to 60 years and his practice does not so much deal with younger clients now. FND said that he estimated that he dealt with 15 clients under the age of 18 in the last five years.

41. FND was asked about his offending and confirmed that he was charged initially with six counts but only convicted of two counts. FND said that each count related to an accompanying image. FND said that he accepted that in 2000 he possessed child pornography. FND said that he was doing some Internet research concerning websites and forums when he came across some galleries. FND said that he curated some images from these galleries with an intention of putting them up or ’curating’ them with the best images to be used. FND explained his behaviour in the context of exploring marketing opportunities and looking for content. These opportunities were not necessarily business related but in some ways personally related as he wanted to attract likes or followers to his postings / pages.

42. FND said that these days the images are all high resolution which he implied allowed the content to be properly assessed. FND said that he ‘inadvertently downloaded’ risky images where the apparent ages of the subjects was borderline. FND said that the images were inadvertently downloaded in that some images came through in the download which he did not see at the time. FND said that he was downloading pornography and that the child pornography was the unintended ‘by-catch’. FND said that he had neither seen nor reviewed the six images upon which the charges were based prior to Police contacting him, other than one image, which he retained. FND said that he could not explain why he had retained the single image that he said that he had seen at the time of download and that he knew that 18 years of age was the relevant threshold for his actions being legitimate.

43. FND was asked about an associate / acquaintance ‘G.L.’ who he had been accused of stalking. FND said that G.L. had trained at his Gym. In 2018 G.L. was just setting up his career and was to enter a body building competition. FND’s office at that time was attached to the Gym and in February 2018 he encountered G.L. FND said that he had a ticket to attend the body building competition as a spectator. G.L. subsequently changed gyms and FND then would only then encounter G.L. at expos related to the fitness and bodybuilding industry.

44. FND said that he considered G.L. to be his friend but that G.L. obviously did not continue to share this view. FND said that they had things in common. FND advised that G.L. put aspects of his personal life onto social media and whilst he followed him there they did not visit each other’s homes.

45. FND was asked about the Solicitor’s letter referred to in the tendered evidence. He said that he received the letter which he said was sent on behalf of G.L. The letter stated for FND to cease contact with him. Prior to receiving the letter FND said that he had seen signals or signs that their friendship had changed. He had been ‘unfriended’ on Facebook and similar accounts. FND said that he believed that G.L. may have been interjecting matters onto him arising from issues concerning G.L.’s late father (noting the age difference).

46. Reference was made by FND to G.L. having an A45 Mercedes (‘hot hatch’) car and FND having similar interests with reference to another ‘hot hatch’ a Hyundai i30N. FND placed some significance on this issue and the admiration of personal choices by G.L. There was a discussion around contact with G.L. and an incident in the car park at Wollongong Harbour. G.L. had intervened in an incident between FND and another man. Other contact included a ’wave’ when they sighted each other at the gym. FND said that on that occasion he did not approach G.L. There was also one email in August 2023.

47. FND was asked about an incident where there was a concern that he might take his own life. FND said that in April 2022 he had a ‘breakdown’ of sorts concerning his mental well-being. In April 2022 there was an incident where he walked to Mt Keira but on the way he walked past G.L.’s home. The evidence was that FND left his mobile phone on top of G.L.‘s car parked in front of the house. FND said that he then realised that the road to Mt Keira was closed and he then went and admitted himself to Wollongong Hospital. Police attended the Hospital and had retrieved his mobile phone.

48. In respect of the images that he had downloaded FND said that he did not obtain the images from the subjects in that he did not even read the subjects data of where the images were located. He said that he understands now that the persons depicted in the images are victims of his own behaviour. He also said that he understood that his behaviour harmed children. FND said that he was not thinking about these things at the time he downloaded the six images. At this point FND became somewhat at odds with the cross examination in that he maintained that his actions were neither wilful or deliberate but rather that the downloads were inadvertent. It was suggested to FND that his risk factors at the time concerned his state of mind, a lack of diligence and an unusual motivation (to access pornography).

49. FND countered that he was no longer a risk to children as he was no longer depressed and as such he no longer requires or needs to seek out the approval of others. He said that he was not seeking any more to mimic someone else’s behaviour such as to create a porn / nude site in order to obtain positive feedback from users.

50. In respect of his work in the allied health field FND said that if the person was under 18 then there was always a parent in the room with the client.

51. In respect of his actions to rehabilitate following his convictions FND said that he saw Dr Parsons on six occasions. Dr Lucas (who had done the risk report in the years following the offending) had recommended that FND continue with psychological treatment. FND said that he remained on medication but stopped therapy.

52. FND stated that his offences occurred when he stumbled upon the website. He said that he was actually looking for something to do with Australian Flags which the Children’s Guardian suggested to him was false, which FND denied. It was also suggested that FND was actually searching for images of younger males which FND also denied. Questions were put about what could be viewed of the particular sites and where one needed to be signed in or given permission to view further. Some of FND’s answers in the Police interview (Exhibit R, pages 30, 31 etc.) contradicted this evidence and this was put to FND which he again denied. He said that you could not see the full content on the Internet and that you had to ‘sign in’ to the sites.

53. FND said that he was not a ‘member’ of platforms where he ‘stumbled upon’ the pornographic website in the first place. The Children’s Guardian representative put to FND that he was lying to the Tribunal and reminded him that he was on oath. The dispute in respect of the truthfulness of FND’s evidence was in the context that FND maintained he was researching Australian Flags and stumbled upon a site depicting underage males in sexual / sexualised poses. The site where the images came from was called ‘Aussie Boys or ‘all about boys’. FND had told Police that he was seeking to obtain images of males in their later teens or early twenties as these images were popular. FND said that in his Police interview he was relying on the general use of the terms ‘toned’ and ‘slim’ to infer ‘good looking’.

54. FND said that he was looking at similar sites by way of ‘market research’ and after completing the research FND sought to ‘populate’ or fill his site with content images. FND agreed with the proposition that at least he was targeting sites and galleries of 18-25 year old males. And would download them and curate the images for posting after viewing them later.

55. In respect of the report of Dr O’Dea FND agreed with the proposition that he had downloaded child abuse material because he believed at the time that it was ‘G’ rated. He said that he did find other child material that he inadvertently downloaded. FND told Police (as per page 28 of ‘R-2’) that he came across these images regularly or quite often. It was put to FND however that he was telling the Tribunal that he only identified six images in total. It was also put to FND that he knew when downloading the images that there was a possibility that there was child abuse material but that he downloaded them anyway. It was also put that FND did this knowingly whilst being aware that the conduct could cause harm to children (the accessing of child pornography which had been created for access). It was also put to FND that in his Police Interview it appears that he had actually viewed some of the images (not just the single image he referred to from the six he downloaded). Reference was made at 28 of ‘R-2’ to downloading images as thumbnails and that they needed to then be opened to view properly and make a call as to whether they were useful, not useful or inappropriate.

56. It was also suggested to FND that he could not have separated the six images into groups of three unless he had at the very least seen those images. FND was unable to recall and could not explain how or why such a scenario of events could be the case.

57. When asked about why he put the three images (from the six) aside FND said the following in his Police interview which he was challenged on during cross examination:

Q155 Okay. Well those three aside, perhaps – you’ve separated them ---

A Yep.

Q156 --- so maybe you can explain to us how ----

A Oh, okay.

Q157 ---- that’s come about.

A All right. As I said, they were there for the reasons I told you about.

Q158 Yep.

A Ah, these are here for a totally different reason, um, more related to – ah, …. (indistinct) …. Say, something that happened to me at bout that age ----

Q189 Mm’mm.

A These are in a – as a case that I seen something, and I just go, “Shit, I remember something like that happened to me,” and it was just a, um – I don’t know what it was; it was jut something – almost a case of , “Gees, other – this happened to other people.” This has – it’s always been something, that, ah, happened that’s been, um – well, you feel like you’re the only person to have gone through something and as soon as I see these pictures it as like, you know, reliving that scene and suddenly feeling, “Shit, you know, maybe I was wasn’t the only person that it happened to”.

58. It was suggested again to FND that his evidence before the Tribunal was not true and that the three images were kept for a totally different reason (other than posting as content on a site he planned to create), but were kept for FND’s own reflection about experiences. In that context the images were clearly not retained to review prior to posting on the web.

59. Following the luncheon adjournment FND said that having reviewed the transcript of his Police interview over lunch he now accepts that there was an error in his earlier evidence. FND said that the first three images were for the purpose of uploading to his proposed website. The second category of three images concerned naked males in various stages of undress. FND said that the ‘3B’ group of images had been viewed after downloading, but the ‘3A’ group had not been views after downloading until the Police showed them to me.

60. Reference was made to a mocked up or faked movie poster for the motion picture ‘Mosquito Coast’ which had been downloaded by FND. The image showed the main male star with an erect penis. FND said that he believed what he was downloading was a G rated Movie Poster. FND continued to deny any and all adverse propositions that were put to him concerning his actions, motives and answers in evidence concerning the pornography and child pornography.

61. In respect of G.L. referred to earlier in cross examination, FND agreed that he met him at a Gym in Corrimal and that he had spoken to the Gym manager about him. He said that he would often just encounter him such as when driving in his car. FND maintained that G.L. was a close friend. It was suggested to FND that G.L. had apparently thought that FND was infatuated with him. FND denied that he actually was infatuated with G.L. FND maintained that they were friends and had a good relationship. He said they referred clients to each other, mutually. FND did however agree with the suggestion that he wanted G.L. to be his friend.

62. When asked about the ‘unfriending’, which occurred on Facebook, FND said that it occurred around April or May 2021 and was related to an aborted tennis match. G.L. had apparently messaged asking for the match to be organised. This contact was though a private message in Facebook or Instagram.

63. In respect of the email chain set out in Exhibit ‘A-4’ (concerning images of a bottle of liquor) it was put to FND that that email chain suggested conflict with G.L. prior to April / May 2021. FND said that the relationship went downhill from April. On 17 November 2021 FND sent an email to G.L. about ‘unghosting’. The bottle of liquor was something that FND had indicated that he wanted to share with G.L. when G.L. had sorted his personal matters out. It appears form the communications reproduced in ‘A-4’ that FND was taking some issue with communications not being acknowledged or responded to by G.L. and that this was a stressor for him and a point of contention. The bottle of liquor was according to FND purchased in January or February 2021, with the comment that drinking the bourbon would only be for when G.L. was ‘ready to drink the bourbon’ due to his behaviour having settled.

64. FND told the Tribunal that in response to the Solicitor’s letter he was able to demonstrate that there were social media posts regarding their mutual interest in cars (hot hatches) because they had been screen shotted.

65. The Tribunal was referred to some videos of G.L. as six videos had been provided to the Children’s Guardian in request for disclosure of information under the Act. These showed G.L. going out to his AMG Mercedes as well as personal fitness Tik Tok stories. One Tik Tok video was of G.L. shirtless dancing to rap music. FND said that he sent these videos to the Children’s Guardian a few months ago.

66. FND was asked why he left his mobile phone on G.L.’s car when he was walking to Mount Keira in a state of depression prior to admitting himself to Hospital. FND said that it was on the way and he did not deliberately seek to leave it there but that going away from civilisation into the bush he would have no use for the phone.

67. FND was asked why he kept a motivational quote for G.L. on his whiteboard some five months after the Solicitor’s letter demanding that he cease contact with G.L. FND was also asked about his podcasts (referred to at pages 93 and 94 of ‘R-2’). FND said that he chose to do podcasts as a form of therapy. It was suggested that his actions were in response to G.L.‘s podcast as shown at pages 95 and 96. The Tribunal notes that the set up and staging of FND’s podcasts is very similar to those of G.L. The Tribunal also notes the evidence that G.L.’s podcast premiered on 19 May 2023 and that FND’s premiered or was first published about three weeks later on 11 June 2023.

58. FND agreed that the podcast was in part a response or a reaction to G.L.’s podcasts. He said that he wanted to ‘set the record straight’. Matters were put to FND concerning his apparent copying of G.L.’s website with his own website layout, content and imagery.

59. The Tribunal asked a number of questions of FND at the end of his cross examination consistent without powers under s 38 of the NCAT Act. In respect of why he left his mobile phone on G.L.’s car when he was walking to Mt Keira FND said that that car was the centre of the whole issue between them. FND said that he was planning to leave it there and not come back. He was not expecting to recover it by Police handing it to him at the Hospital. FND confirmed that when he left the mobile phone there G.L. would have known that it was FND’s phone.

60. In respect of his interactions with G.L. and noting the age difference, FND told the Tribunal that he is a single man and has never had children. He said that these friendships were like treating G.L. as a son. FND told the Tribunal that he would go back and have some more treatment with Mr Green (a counsellor).

Dr O’Dea’s Evidence

71. On day two of the hearing Dr O’Dea gave evidence and his report of 31 July 2023 in respect of FND was tendered as Exhibit ‘R-3’.

72. In evidence in chief the witness clarified the reference in his report at [59] to the clinical circumstances of FND meaning FND’s treatment over the years. His report referred to FND having an apparent limited acknowledgment of those clinical circumstances. In reference to the terms ‘complex and fluctuating condition;’ referred to at [61] the witness clarified that FND has significant problems with stress management and that in his experience hebephilic persons have little support in the community. The witness said that this causes stress in the patient as referred to at [65].

73. The witness clarified that in the realm of psychiatry Paedophilia is sexual attraction to children, being pre-pubescent children. Hebephilia is not seen as a disorder but rather a psychological condition as sexuality is related to reproduction. The witness referred to FND’s reported sexuality as being heterosexual however said that his background suggested that his sexual orientation was predominantly if not exclusively homosexual hebephilic.

74. The witness referred to the static 99 testing administered to FND at [69] of the report. The witness said that in his expert opinion these types of tools are only relevant and effective for ‘hands on’ sexual offending other than pornography type offences. The witness said that tools such as the static 99 are not effective in predicting Internet pornography usage and offences. There is no real test available. The witness opined however that FND’s: psychosexual problems would be considered from a psychiatric perspective to be clinically significant and appropriate for ongoing psychiatric treatment and risk management particularly if he were to continue his career (allied health) and in so treating children.

75. The witness said that the particular images viewed by FND would point to some interest in post pubescent male children. The witness said that FND’s lack of female partners and his infatuation with G.L. elevate the focus on post pubescent male children. The witness said that what is clinically significant is that FND should or could have further treatment in the nature of both psychotherapy and medication.

76. In cross examination the witness as taken to [66] of his report. In reference to what FND was doing with the six images the witness had recorded that it was related to FND’s homosexual hebephilic component to his overall sexuality. FND put to the witness that there was no evidence that the images depicted underage persons. Also there was no evidence that they were posted onto a site by FND. The witness deferred to what FND had told him earlier in the assessment (at [32] of the report) in that some ‘troubles with the business’ were part of the explanation for the behaviour.

77. FND put to the witness that if the ‘stalking’ was unfounded would the report’s conclusions be any different. The witness said that a different conclusion would be unlikely even if the stalking allegation was not of significance as in his opinion the interaction between G.L. and FND was autoerotic / psychosexual and had a detrimental impact on both.

78. In respect of the age gaps the witness confirmed that there was no psychiatric relevance. The witness said that G.L. was a person in the community, those matters show that FND’s problems continue. The risk of moving to ‘hands on’ from the ’internet offences’ is a lesser issue due to a 23-year passage of time. However the witness opined that in psychiatry they are required to look at all of the casual or predisposing factors. The witness concluded by stating to FND that FND had a hypersexual history. He said that FND had an unusual relationship with and unusual responses on FND’s behalf.

FND’s submissions

79. FND provided written submissions before and after the close of evidence. Many of his submissions were directed at the legislature with criticisms of the matter in which his offending had been dealt with when contrasted with significantly serious offences which he and others considered to be more serious. FND predominantly sought to rebut the Children’s Guardian case in submissions taking issue with an inference that he had ‘groomed’ G.L. as when he first dealt with him G.L. was 16 years of age. FND pointed out that grooming offences only apply to persons under the age of 16 years.

80. FND also addressed the expert and Children’s Guardian’s reference to ‘stalking behaviour’ concerning G.L. FND maintained that the offender was G.L. in that G.L. had admitted that he had provided false or misleading information. Without admitting any offending FND submitted that there was only a single incident, not repeated matters and in this regard FND submitted that no weight should be attributed to this aspect of his dealings with G.L.

81. Reference was also made to conclusions against FND not being based on evidence. In respect of the reports tendered to FND’s professional registration board, FND submitted that they show a low risk of reoffending and the Children’s Guardian submissions that the assessment was only confined to the context of work in the specific allied health area, should be rejected by the Tribunal. Where relevant FND submitted that Dr Lucas’s opinion should be preferred over Dr O’Dea’s because Dr Lucas conducted a face to face assessment of him. The impact of bullying on FND and lifelong effects clashed with Dr O’Dea’s opinion that Hebephilia was a lifelong orientation. That FND submitted could not be evident because Dr Lucas found no evidence of this condition or orientation during his earlier assessment.

82. Other submissions were made concerning the Children’s Guardian misapplying aspects of the WWCCC scheme and that the Act (contrary to their submissions) did allow for clearances for persons who had been convicted of any of the offences in schedule 2 including FND’s offending.

Children’s Guardian’s submissions

83. The Children’s Guardian submitted that overall FND was not a reliable witness in respect of much of his evidence including the Internet searches beginning with research into Australian Flags. They submitted that FND was lying to the Tribunal and if the Tribunal did not accept that he was lying then FND’s recollection was wrong.

84. The Children’s Guardian submitted that FND did view the images, he selected two groups of three and selected an image from the first group of three. In that regard the Children’s Guardian submitted that FND’s evidence should be treated with the utmost caution. It showed that he lacked insight into his own motivations for the behaviour and this was a significant risk concerning current and future risk.

85. The Children’s Guardian submitted that the totality of the evidence showed that there was no question that the material was downloaded and that FND provides an implausible explanation and that the Tribunal should reject that explanation and then the Tribunal is left with nothing (by way of explanation for the behaviour). No finding positive to FND can be made, so in the context of an onus on FND, it was submitted that there was no way how the Tribunal can find that FND has in such circumstances disproven that he is a risk (real and appreciable) to the safety of children.

86. The Children’s Guardian submitted that if the Tribunal accepted the evidence about the images and evidence about G.L. including evidence that FND was in a bad place (psychologically) in 2000, the effects of childhood bullying due to his weight at that time of his later primary school years and treatment at age 35 and no treatment since, then the risk remains. Submissions were also made that the relationship with G.L. showed a complete lack of insight from FND and caused emotional harm to G.L.

87. The Children’s Guardian also made submissions concerning the reasonable person test (s 30 (1A) of the Act) and submitted that such a person sitting in Court watching FND give his evidence would form the view that he was being untruthful and evasive and as a result would not allow their child to be with him in child related work unsupervised. In respect of the public interest test the Children’s Guardian submitted that practising in his allied health area has a public interest component but to grant FND an enabling Order would undermine public confidence in the WWCCC scheme more generally.

Consideration

88. Having considered the evidence and submissions we will now consider the mandatory considerations in determining the matter in the way provided for under the Act. We will refer to the evidence briefly as it has been set out in some detail above.

Section 30 (1) considerations

89. 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.

90. FND’s application to the Tribunal is brought about by a Notice to Disqualified Person. The offence leading to that notice possession of child abuse material is objectively serious and carried a penalty of a maximum of 10 years imprisonment.

91. Whilst the offence is serious we agree with the Children’s Guardian submission that in FND’s circumstances of giving evidence about the offending, there were elements of minimisation of his behaviour and conduct notwithstanding that he was convicted of the offences. His Police record of interview is not in our view candid nor was his evidence on these matters before us at hearing. His position seemed to be that his conduct was serious but that there are worse offenders than him, some of whom can work with children and that he was being unfairly targeted by the Children’s Guardian.

92. Child pornography offences are particularly serious especially in the context of the WWCCC scheme as the very nature of the abuse material goes against the paramount consideration to ensure the safety and well-being of children. Two of the six charges proceeded to conviction which created the disqualifying offences. The other four were considered prima facie similar offences however the sentencing Judge could not be satisfied that those four did depict matters of a sexual nature.

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

93. It is clear that the matters referred to under s-30 (1) (a) occurred in 2000. This is a period now exceeding two decades. The Children’s Guardian submitted at hearing that the matters concerning G.L. were however a blemish in FND’s conduct since, notwithstanding the absence of any further criminal convictions or other offending behaviours. He befriended G.L. as a 16 year old boy and his extended behaviour towards G.L. over a number of years resulted in G.L. engaging a Solicitor to threaten Police action if his behaviour towards him did not cease.

94. It is two years since this stalking behaviour by FND was brought to a head via the legal threat.

95. There is no evidence of any unlawful or other adverse behaviour by FND in the intervening period of 23 years that has been brought to the attention of the Tribunal by either party.

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

96. The applicant was 35 years of age at the time of his criminal offending. In respect of the stalking allegations FND was 56 years of age when they came to a head.

(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.

97. The victim of the disqualifying offences were males potentially between 10 and 16 years of age. Their exact ages are uncertain. These boys were particularly vulnerable as they were being abused by a child pornographer who was creating the real content. It is unclear who was responsible for the images but in the context their mere presence made the victims significantly vulnerable. G.L. was vulnerable because at the time he met FND he was a child and FND was a middle-aged man.

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

98. The difference in age between the applicant and the victim in the disqualifying matter is unknown as the date that the images were created is unknown. However assuming an average age of 13 or 14, FND was over 20 years older when he offended. FND did not know the victims and there was no real relationship between FND and his victims other than the statutory relationship of abuse subject and abuse consumer (of child pornography content).

99. In respect of G.L. the relationship was initially of child and adult. Later there was a relationship of colleagues and acquaintances, which subsequently deteriorated.

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

100. In respect of the disqualifying offences FND would have been well aware that the victims were children. When he met G.L. FND knew that he was a child.

(g) The person's present age.

101. FND was 58 and a half years old at the time of the determination of the matter by the Tribunal. The relevance being that offending (including sexual offending) generally declines with age and significantly past middle age.

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

102. The applicant does have a criminal record in respect of the disqualifying offences. He has no other criminal history.

103. FND’s criminal history is set out earlier in the reasons. Whilst like all disqualifying offences it is serious, in our view it is significantly serious when one had regard to the facts and circumstances of the disqualifying offence as set out at [91] – [92] above.

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

104. If FND was to repeat his behaviour from the events of the disqualifying offences the impact on any children would be significant. The offence did involve children.

105. The expert Dr O’Dea submitted that due to FND’s lack of insight into his offending and noting the nature of his diagnosed conclusions about FND’s ‘homosexual hebephilia’ at [65] of his report, ‘… (there is) a significant risk of adult males with this sexual orientation acting on this orientation, particularly with vulnerable male children, and appropriate for long term treatment and risk management.’. FND has not engaged in treatment for many years but did indicate at the end of his evidence that he would go back a see an earlier professional again. However whilst FND attributed his behaviours to the events of year 4 at school and certain events in 2000, he has not taken steps to address these long term issues even on his own account of why he offended.

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

106. There is no relevant evidence or current matters to consider under this criteria.

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

107. FND tendered the material set out at [36] above. From FND’s material which was not explored at hearing was an academic article titled: Hebephilia Quintessence of Diagnostic Pretextuality which appears in a 2020 edition of a journal titled Behavioural Sciences and the Law. The submission and article appear to be an attempt to rebut Dr O’Dea’s diagnosis. They only indirectly touch on the issue of risk as risk is linked in Dr O’Dea’s report to the diagnosis.

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

108. There is no material obtained under s 36A.

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

109. The Children’s Guardian submitted that in respect of treating 16 and 17 year olds in his allied health profession when accompanied by their parents FND had never turned his mind to what might happen or what he might do if a parent was to leave the treating room. The Children’s Guardian submitted that the Tribunal should be concerned that FND had never yet turned his mind to this possibility.

Consideration

110. Turning to how the Tribunal should discharge its statutory functions on the evidence we note the guidance from the Superior Courts. In the case of BKE v Children’s Guardian [2015] NSWSC 523 Beech-Jones J sets out the approach that the Tribunal should take. Like the current matter BKE dealt with an enabling order application. Unlike the facts in BKE, certain matters in the current case are settled, in that the Courts had made a positive finding on the conduct and whilst his evidence and explanations are somewhat contradictory, it appears that FND accepts that he has been convicted of the two offences. In that regard FND does not dispute that finding.

111. At pars 29 of BKE the Court observed:

29. 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).

112. We note that in the current matter we are not required to make positive findings on events, because as noted the significant events as set out are accepted by the parties. Whilst FND denies that he engaged in stalking behaviour directed towards G.L. it is open to us to make findings as to what occurred and what relevance such matters have to the overall matter that we must determine. There would be no basis on the available evidence for the Tribunal to depart from such a position. Returning to BKE we note the reference to risk and unacceptable risk. At [32]:

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

113. In these proceedings our substantive role is to assess risk, and whether specifically FND poses a risk to the safety of children and young people. We have based our consideration on all of the evidence given by the parties in documentary form and the oral evidence of the two witnesses and oral submissions. The evidence was tested by cross-examination and we note that the import of the evidence remains controversial between the parties.

114. We also observe that the Court of Appeal in the case of CXZ has reinforced the matters central to what the Tribunal must address when the Tribunal is assessing overall risk. As Simpson AJA points out at 79 of CXZ set out at [90] above when noting that the language of M v M:

...requires the Tribunal to determine “whether on the evidence” (and that means the whole of the evidence) the applicant poses a risk to the safety of children if a clearance is granted to him.

115. In respect of the criminal allegations we adopt the findings of the ACT Court.

Finding as to risk

116. Based on a consideration of all of the evidence, and noting the guidance from CXZ we are not satisfied that FND has overcome the presumption that he poses a risk to the safety of children.

117. His behaviour towards G.L. shows a lack of judgement and insight into the consequences of his actions. Even after receiving the Solicitor’s letter FND seemed incapable of understanding that his behaviour was damaging to G.L. whether FND was technically offending or not.

118. The retaliatory open behaviour in respect of the pod casts and the reminding of having the atonement drink (the bourbon) in our view shows that FND fails to have insight into his behaviour and is unable to understand that he needed to walk away from anything related to G.L. Instead FND raised defences of mutual interests and that he might happen to see him or run into G.L. in the community. He failed to accept that his conduct was continuing in the same vein as what G’L’ had raised concerns about. Instead FND declared to the Tribunal that he had not committed any offences (which is correct) and that he had done nothing wrong and that G.L. was the person who had broken the law.

119. Likewise in respect of his significant offending FND seemed unable to understand that the evidence clearly establishes that he sought out material and having ‘stumbled’ upon certain material he willingly choose to download it (irrespective of his motivations to download it) and then proceeded to view some of that material prior to being contacted by Police.

120. Dr O’Dea’s evidence as to FND’s continued risk was in our view compelling. Whilst FND submitted that we should prefer the evidence of other experts, as finder of fact, having regard to Dr O’Dea’s qualifications and the fact that his report and evidence was tested at hearing, we prefer the evidence of Dr O’Dea. Dr O’Dea was best placed to consider FND’s risk now as opposed to risk 15 to 20 years prior.

121. As noted above at [92] child pornography and child abuse material does in our view go to the very centre of what the WWCCC regime is seeking to govern by protecting children from unsupervised access to persons who pose a risk to them.

122. We note that the safety, welfare and wellbeing of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act.

123. Whilst we might be satisfied that FND would in all likelihood not reoffend, we are not satisfied that FND has sufficient insight into his behaviour that would ensure that he keeps children safe from harm.

124. There is also a significant concern about Dr O’Dea’s finding that prejudicial as it might seem, FND’s sexual orientation could continue to put adolescent males in the years prior to adulthood at some risk of harm.

125. Dr O’Dea’s opinion outlined at [104] above included: a significant risk of adult males with this sexual orientation acting on this orientation, particularly with vulnerable male children, and appropriate for long term treatment and risk management.’. Due to this observation, noting the lack of treatment and the course of behaviour shown in his dealings with G.L., we find that there is a real and appreciable risk posed by FND to the safety of children.

126. Whilst the matters set out at [123] and [124] above are in part prejudicial to FND, the protective nature of the WWCCC regime and the paramount consideration of keeping children safe, override any prejudice to others including FND.

Section 30 (1A) consideration and findings

127. Having made the finding that we have, we are not required to have regard to this section.

Conclusion

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

129. The evidence and material received by the Tribunal establishes that the Tribunal cannot be satisfied that FND does not pose a risk to the safety of children.

130. In our view, having regard to all of the material before the Tribunal, FND has not overcome the statutory presumption under the Act that he is a risk to the safety of children. As a result we must find that at present FND is and remains a risk to the safety of children.

131. It therefore follows that the application for an Enabling Order should be refused / dismissed.

Orders

1. FND’s application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 is dismissed.

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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: 15 May 2024