FSQ v Children's Guardian

[2024] NSWCATAD 302

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FSQ v Children’s Guardian [2024] NSWCATAD 302

Hearing dates:

19 October 2023

Date of orders:

11 October 2024

Decision date:

11 October 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Rogers, Senior Member
K Stubbs, General Member

Decision:

(1) The Tribunal declares that FSQ is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of possess child pornography of which he was convicted by the Local Court on 7 June 2005.

(2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant FSQ a working with children check clearance.

Catchwords:

CHILD WELFARE – refusal of a working with children check clearance – disqualified person – enabling order – whether Tribunal should exercise discretion to order grant of clearance – possession of child pornography

Legislation Cited:

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Evidence Act 1995

Cases Cited:

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

BMP v Children’s Guardian [2015] NSWCATAD 201

Briginshaw v Briginshaw (1938) 60 CLR 336

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

ECQ v The Children’s Guardian [2021] NSWCATAD 217

EOL v Children’s Guardian [2021] NSWCATAD 146

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Office of the Children’s Guardian v EQE [2022] NSWSC 871

VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789

Category:

Principal judgment

Parties:

FSQ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
A Wilson (Applicant)

Solicitors:
Karim Criminal Defence Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2023/00051773

Publication restriction:

With the exception of expert witnesses, officers of government agencies and legal representatives, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person

REASONS FOR DECISION

1. This case is about a decision made by the Children’s Guardian on 18 January 2023 to refuse to grant FSQ a working with children check clearance. The Children’s Guardian refused FSQ’s application on the basis that he was a disqualified person.

2. FSQ now seeks an enabling order that he not be treated as a disqualified person and an order that he be granted a working with children check clearance.

Background

3. FSQ is a retired man in his 60s. He seeks a working with children check clearance (‘clearance’) to engage in various church, charitable and musical society activities as a volunteer.

Decision to refuse a clearance

4. The Children’s Guardian refused FSQ a clearance on 18 January 2023 on the basis that FSQ was a disqualified person under section 18(1) of the Child Protection (Working with Children) Act 2012.

FSQ is a disqualified person

5. It is not in dispute that FSQ is a disqualified person under the Child Protection (Working with Children) Act 2012. This is because he was convicted by the Local Court on 7 June 2005 of the offence of possess child pornography. The Court imposed a section 9 bond for four years and a $5,000 fine.

6. FSQ was convicted of an offence specified in Schedule 2 at clause 1(1)(y):

(y) an offence under section 578B or 578C(2A) of the Crimes Act 1900

7. FSQ was convicted of an offence contained in section 578B(2) of the Crimes Act 1900. This provision which has since been repealed.

8. Because of that conviction, subsection 18(1)(a) of the Child Protection (Working with Children) Act 2012 applies, noting that FSQ was an adult on 7 June 2005. The effect of that provision is that the Children’s Guardian must not grant FSQ a clearance as he is a disqualified person.

Application to NCAT for an enabling order and an order granting a clearance

9. On 15 February 2023, FSQ lodged an application with the Tribunal. He sought an order declaring that he is to be treated as a person who is eligible to apply for a clearance and an order that he be granted a clearance under section 28 of the Child Protection (Working with Children) Act 2012.

Non-publication order that applies

10. The Applicant in this proceeding is referred to by the pseudonym ‘FSQ’ because a non-publication order was made by the Tribunal.

References to legislation

11. Unless otherwise stated, references to particular sections of legislation are references to sections of the Child Protection (Working with Children) Act 2012.

Relevant legislation and the issues to be determined by the Tribunal

12. The object of the Child Protection (Working with Children) Act 2012 is stated in section 3 as:

…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.

13. The paramount consideration in the operation of the Child Protection (Working with Children) Act 2012 is “[t]he safety, welfare and well-being of children and, in particular, protecting them from child abuse”: section 4.

14. A person can apply for an enabling order if they are a disqualified person. The enabling order is a declaration that the person is not to be treated as a disqualified person for the purpose of the Child Protection (Working with Children) Act 2012 in respect of an offence specified in the order: section 28(1).

15. There is a presumption in section 28(7), that unless the Applicant proves to the contrary, that the Applicant poses a risk to the safety of children.

16. If we are satisfied that the Applicant has displaced the presumption that he is a risk to the safety of children, we then have a discretion to make an enabling order: section 28(1).

17. If we make an enabling order, we then have a discretion as to whether or not we order the Children’s Guardian grant FSQ a clearance: section 28(6).

18. In determining an application for the enabling order, we must take into account the mandatory considerations set out in sections 30(1):

(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.

19. According to section 30(1A), we may not make an order that has the effect of enabling an Applicant to work with children unless we are 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.

The hearing

Opening addresses

20. Mr Wilson, counsel for FSQ, explained that FSQ seeks to engage in volunteer work in church musical societies. Mr Wilson said that there was no dispute as to the facts of the disqualifying offence and that FSQ entered a plea of guilty to the charge. Mr Wilson observed that a significant period of time had passed since the offending conduct in 2004. He submitted that FSQ had taken steps to rehabilitate himself and complied with all that was required of him by the Court, including to engage in counselling and treatment with a particular psychologist. He submitted that FSQ had been candid about the offending with those around him.

21. The Children’s Guardian opposed the application for an enabling order and submitted that FSQ did not provide evidence that would rebut the presumption that he is a risk to the safety of children.

Reports of FSQ’s psychologist dated 21 March 2005 and 11 April 2005

22. FSQ’s psychologist (‘the psychologist’) prepared a report, dated 21 March 2005 that was used in the criminal proceedings. It is convenient to set out some aspects of this report.

23. The psychologist assessed FSQ with Major Depressive Disorder. His opinion was that the conduct leading to the possess child pornography charge was an “Abreaction” and was symptomatic of the Disorder. He explained that an Abreaction is “[e]xtremely uncharacteristic behaviour in response to severe depression and anxiety”. The psychologist stated that viewing pornography was entirely inconsistent with FSQ’s normal behaviour and personal values. He stated that this is a common symptom of Major Depression.

24. The psychologist observed that despite being diagnosed with Depression by his GP, FSQ had never been appropriately or adequately treated in the past. His opinion was that the onset of FSQ’s depression was at about 11 years of age.

25. Applying the Sex Offender Risk Appraisal Guide (SORAG), a risk assessment profile used to predict the risk of recidivism, the psychologist assessed FSQ as (extreme) minimal risk of re-offending, which is the lowest possible rating.

26. The psychologist described two periods in which FSQ sought out pornographic material on the internet in the context of deteriorating mental health and depression.

27. The psychologist said that in 2003 FSQ was unemployed for three months and he became “deeply depressed”. This is the first period described in the report when FSQ accessed pornographic websites. He said FSQ sought treatment for depression and was prescribed anti-depressant medication. He stated that FSQ cleared all pornographic references and pictures from his computer. The report also states that FSQ’s emotional state improved and he lost interest in pornography.

28. The psychologist stated that FSQ responded well to medication and was able to secure employment, with two months of consultancy work followed by returning to work at a local council.

29. The psychologist stated that FSQ then experienced a relapse of depression after he prematurely ceased taking the anti-depressant medication when his symptoms began to settle. FSQ again sought out pornography on the internet during this Depressive Episode. He stated that:

[FSQ’s] deteriorating psychological health however soon manifested in what could reasonably be described as an “obsessive curiosity” with pornography of all types. He reported to have collected pictures involving old people, fat people, coloured people, dwarfs etc. and eventually, images of pre-pubescent girls.

30. The psychologist stated FSQ experienced a partial remission of depressive symptoms in mid-2004 and considered his behaviour. FSQ “realised that pornography is a form of exploitation of people and that the viewing of this material is entirely inconsistent with his values”. The psychologist records that FSQ deleted all pornography material from his computer and had ceased accessing the pornographic sites prior to being arrested and charged by Police.

31. The psychologist found FSQ to be “candid and straight-forward” in his responses in the assessment and therapeutic process. The psychologist found no evidence any symptoms or indicators of Paraphilias and found no behaviour or interests suggestive of “deviant sexual tendencies”, apart from the behaviour leading to FSQ being charged.

32. The psychologist noted that FSQ and his wife attended marriage counselling. He also observed that “[i]n order to further assist in his treatment and guard against the possibility of a relapse, [FSQ] has informed his wife, her family and his Minister of the Charges – all of whom have expressed their support”.

33. The psychologist provided an additional report, dated 11 April 2005, identifying how the various risk assessment tools were applied to assess FSQ’s risk of recidivism.

34. The curriculum vitae for the psychologist shows that he has two Masters degrees, including in neuropsychology studies and he has completed doctoral studies in forensic psychology and at the time was undertaking further doctoral studies in clinical psychology.

Evidence of FSQ

FSQ’s written evidence

35. FSQ filed two affidavits in these proceedings. In those affidavits FSQ states that he wishes to engage in certain community choirs, community musical and theatre companies and to volunteer at English classes run by a church. He states he is also a current volunteer and performer with a church musical society.

36. FSQ said he entered a guilty plea to the charge of possess child pornography. His solicitor negotiated agreed facts with the prosecutor. That correspondence shows that the following amended facts were put to the prosecution by FSQ’s legal representative:

37. Deletion of the paragraph:

“Police examined the accused computer hard drive, a number of pornographic images were discovered. Some of the images depict females under the age of sixteen. In particular two images depict a a [sic] young female believed to be well under the age of 16. The officers have established that these two images had been downloaded onto the accused computer on the 9^th and 10^th June 2004 and stored in Documents and settings\[redacted]/My Documents\My Pictures and were sent to the recycle bin on the 5^th August 2004.”

38. Proposed amended facts:

“Police scanned the accused’s computer hard drive and found adult pornography images that are not the subject of any charges.

There were two images of one female believed to be under 16 years and those images were of the female in the nude.

While the two images of the female in the nude were downloaded in the accused’s computer, police established that both images were deleted on 5 August 2004.”

39. FSQ understands that he was sentenced on the basis of the amended facts. The Respondent submits that the removal of the words “well under” 16 years in the proposed agreed facts is “not present on the facts contained in the court file” and so submits that the facts on which FSQ was sentenced included that the victim was “well under” sixteen years of age.

40. FSQ said that “to the best of [his] recollection the image showed a girl approximately of 13 to 14 years of age. He said when he saw this image he realised it was child pornography.

41. FSQ recalled reading reference to the court case in a local paper which said the girl in the image was between five and eight years old and he disagreed with that report.

42. FSQ said that during his sentencing hearing the police prosecutor handed up an image to the magistrate. He said the Magistrate said he could not easily work out how old the girl in the image was.

43. FSQ addressed part of the psychologist’s report where he was reported to have told the psychologist he had collected pictures of “pre-pubescent girls”. He stated that he couldn’t recall the precise conversations he had with the psychologist about the age of the person in the photos he was charged with. He added that whether or not the child was eight or fifteen years of age did not matter. He said he accepted that any child pornography involves the abuse of a child. He said what he did was “morally wrong and [he is] deeply upset that [his] action caused harm to that child”.

44. FSQ said he started seeing a psychologist due to the charge. This psychologist was the one named in the conditions of FSQ’s bond, which included that he was to “continue with counselling and treatment with [that psychologist] for so long as [the psychologist] deems it necessary for such counselling to continue”.

45. FSQ stated that he continued seeing the psychologist for approximately six to nine months after his criminal matter was finalised in the Local Court. He said that the supervision of Probation and Parole ended early on 15 January 2007. The section 9 bond expired on 6 June 2009.

FSQ’s oral evidence

46. FSQ gave oral evidence at the hearing. He agreed that he accessed and downloaded child pornography during a period of low mood. FSQ said he was between jobs. He was made redundant in 2003.

47. Ms Kelleher, solicitor for the Children’s Guardian, put to FSQ that according to the Police Facts Sheet he first subscribed to pornographic websites on 7 May 2002. FSQ said that he was still working at that time.

48. The Facts Sheet stated that FSQ had used his and his wife’s credit card in order to pay for ongoing access to pornographic websites for the following periods:

• 7 May 2002 to 4 July 2002

• 21 January 2003 to 20 February 2003

• 17 March 2003 to 17 May 2003

• 15 April 2003 to 13 May 2003

49. FSQ agreed that he had an escalating interest in pornography, responding with the answer “definitely”. He agreed that this included child pornography. Ms Kelleher put to FSQ what he is recorded to have told Dr Nielssen, a psychiatrist (referred to below under ‘Evidence of Dr Nielssen’), that he sought out pornography because he “wanted a feel good blast”. FSQ agreed. He said that the treatment from the psychologist and the anti-depressant medication “removed the need”. FSQ admitted he did realise that the “pictures of gorgeous young women” were of individuals who were “young and underaged” and he stopped. He said the five websites identified in the Facts Sheet were all linked together and they would send him a reminder. He said there were links from adult websites he subscribed to and that is how the material came up.

50. FSQ explained that he was using dial-up internet and he had to download the images before he could see them. They initially appeared as thumbnail-sized pictures and you couldn’t really see them. He said that the images all sat in downloads, there were no separately saved images.

51. FSQ said he recalled deleting the images the subject of the charges, but did not know when he did that. He later said that he deleted the lot.

52. FSQ did not recall telling the psychologist he had an “obsessive curiosity” with pornography.

53. FSQ denied that he had a sexual interest in children. He agreed that he wanted to look at the images. When asked whether it was to satisfy his curiosity, FSQ said he did not know. FSQ described pornography use as a “never ending game of never achieving satisfaction” and said it was like gambling. He denied finding the images sexually gratifying.

54. When later asked directly whether he had searched for images of children, FSQ gave a direct answer “no”.

55. Ms Kelleher put to FSQ the part of Dr Nielssen’s report where Dr Nielssen said FSQ told him there was argument in court about the age of the child in the images the subject of the charge, and whether the she was under 16 years. FSQ said he did not remember the photo and did not see the image in court. He said that the local paper article about the criminal case suggested the child was eight years old and so did the police prosecutor. The prosecutor showed the magistrate the photo and the magistrate said he did not know the child’s age. FSQ admitted he was aware the child was under 16 years and that is why he pleaded guilty to the charge.

49. Part of the psychologist’s report which records that FSQ told the psychologist he collected images of pre-pubescent girls was put to FSQ. He responded by saying he was “not collecting, that’s for sure”.

50. Ms Kelleher put to FSQ that there were up to 43 images of girls believed to be under 16 years of age and that he had viewed other such images of children under the age of 16 years other than those the subject of the charges. FSQ responded and said no.

51. Ms Kelleher suggested to FSQ that the answer he gave to the psychologist differed from what was recorded by Dr Nielssen in his report. He was recorded in Dr Nielssen’s report as stating to that “the images had to be downloaded before they could be viewed” and that there were three images deemed to be of girls under the age of 16 years and that he deleted them.

52. FSQ said that he assumed Dr Nielssen was correct. He did not recall but thought he must have said to Dr Nielssen there were three images if Dr Nielssen had written three in his report.

53. Ms Kelleher put to FSQ that it took two months for FSQ to delete the photos. FSQ said he deleted them and they were sitting in his recycle bin on the computer. He then cleaned the recycle bin. He said he could not say how long it was until he cleared out the recycle bin.

54. FSQ said that he did not recall talking to Dr Nielssen about pre-pubescent girls. He was aware the images were of younger teenagers but had not thought they were pre-pubescent girls. When asked whether they might have been 13 or 14 years old, FSQ said “I suppose so” but said that he could not remember the image.

55. FSQ said that there was no argument that the girls in the images were under 16 years old and he pleaded guilty to the charge.

56. FSQ said he was as open as he could be with Dr Nielssen so he could “move forward”. He denied trying to present himself favourably to Dr Nielssen including about the age of the victim in the photos and how he came to look at the photos.

57. FSQ said he kept up the anti-depressant medication for about five years. Ms Kelleher asked what he would do if he became depressed again. FSQ said he would see a GP.

58. FSQ said he and his wife had been members of theatre groups over a long period. He sought to join one group recently and they required him to have a working with children check. He also needed a working with children check in order to be involved in running English classes at church. It was the same with some other volunteer opportunities. He said “I need to be useful”. He is allowed to sing with the band in his church service and the leader and minister know his status.

Evidence of Dr Nielssen

Report dated 3 May 2023

66. Dr Nielssen is a psychiatrist engaged by FSQ’s solicitors to provide a report in this proceeding.

67. In his report of 3 May 2023, Dr Nielssen said FSQ told him that there were three images that were deemed to be of girls under the age of 16 years. He said that FSQ said there was some argument in court as to whether the pictures were actually under the age of sixteen.

68. The report records FSQ stated to Dr Nielssen and he went down a “pornography rabbit hole”. He said within one week of taking anti-depressants “the desire to look at pornography evaporated”. He told Dr Nielssen that he did not specifically look for teenagers or young girls.

69. Dr Nielssen makes the observation that none of the names of websites identified in the Police Facts Sheet appear to refer to hosting images of children.

70. Dr Nielssen records that FSQ took anti-depressant medication for about three years and ceased under medical supervision, and “did not report any subsequent depression.”

71. Dr Nielssen expressed the opinion that the probability of FSQ committing a further similar child pornography offence is “very low”. He based this opinion on what he identified as:

• the absence of any pattern of general offending

• the absence of evidence of a specific attraction to female children

• the absence of a substance use disorder or a psychiatric disorder associated with impaired social judgement and inhibition

• the pro-social attitudes elicited during the interview with FSQ

72. Dr Nielssen also made the observation that the risk of sexual offending declines with age, with some exceptions. He said there was a marked drop after the age of 60 years old.

73. Dr Nielssen expressed the opinion that:

…[FSQ] was not thought to have a disorder of abnormal sexual interest that might predict offences against children. His offence took place during a period of clinically significant depression, for which he has been treated, and he was not thought to have any other psychiatric disorder that might affect his social judgement or impulse control.

74. Dr Nielssen stated that actuarial instruments to estimate the probability of sexual offending are administered on the assumption that the person being assessed has committed a “contact sexual offence”. These instruments are therefore not relevant to assessing the probability that FSQ will commit any kind of offence against children in the future, including non-contact offences. Dr Nielssen suggested that even if these actuarial instruments were applicable, Dr Nielssen expressed the view that FSQ would be assessed a having “a low or negligible likelihood of committing a sexual offence based on the absence of any of the main risk factors”.

75. Dr Nielssen concluded his report by giving his opinion that he identified no features of FSQ’s clinical history or presentation that indicated a real or appreciable risk to children.

Oral evidence of Dr Nielssen

76. Dr Nielssen was asked whether he could recall FSQ telling him there were “three images” that were said to be of girls under 16 years of age. Dr Nielssen said that he had no recollection, other than what is written in his report. He said that he types his notes and there are no other notes. Under questioning he agreed that he had not gone into too much detail and could have asked for the detail about the ages of the person in the pictures. He said that FSQ denied a specific attraction to children and said that he had discarded the “risqué” images.

77. Dr Nielssen was asked about how he could assess the probability of FSQ reoffending given there were no actuarial tools. Dr Nielssen explained that he conducted a clinical assessment.

78. Dr Nielssen explained that he had made contributions to the literature about the risks for sex offending. He said there was a low rate of recidivism. He said that there was no greater risk as a result of having offended and described the effect of having been charged with a criminal offence as “extremely aversive”. He referred to pro-social factors such as a person’s stability of relationships, employment and engagement in the community and described substance use as a key risk in all offending. He said the nature of the pornography that the person was collecting is a good guide to what they are thinking.

79. Asked how he could determine whether a person had a specific sexual interest in children, Dr Nielssen said if it was all that a person collected that would be an indication. He said what is collected gives a “window into the mind”. Dr Nielssen said it did not seem to be the case that FSQ had a sexual interest in children as he had a long marriage and children. Dr Nielssen also said that FSQ was not aware what image he got before he paid for them.

80. Ms Kelleher asked Dr Nielssen about his reference in his report to FSQ having an episode of “clinically significant depression around the time of the 2004 offence”. She questioned Dr Nielssen about whether there might be a link between FSQ experiencing depression and his offending. Dr Nielssen agreed that depression “might be” relevant. He gave the example that some people overeat when depressed. FSQ might have used pornography as comforting behaviour.

81. Dr Nielssen said that on assessment, he did not find FSQ depressed, despite having lung cancer, which can be associated with being depressed.

82. Dr Nielssen said that nothing in the report of the psychologist (referred to above from [23]) would change his opinion. He said that there was a slightly different emphasis and history elicited in the psychologist report.

Other material relied on by the parties

83. FSQ’s wife provided an affidavit in support of FSQ’s application. She was not required by the Respondent for cross-examination and she attended the hearing in person.

84. FSQ’s wife outlined the couple’s involvement in musical societies and confirmed her knowledge of FSQ’s possess child pornography charge and guilty plea. She said she supported the grant of the working with children check clearance to her husband because he has engaged in rehabilitation and said that grant of the clearance would enable FSQ to be involved in musical theatre and church activities “which are key parts of [their] lives”.

85. FSQ relied on a character reference, dated 31 March 2005, used in the Local Court criminal proceeding. The reference is from a man who knew FSQ from 1997 and knew FSQ in the capacity of church pastor from 2000. The referee describes FSQ as a man who maintained high ethical standards and to have a strong sense of personal integrity. He observed FSQ in 2003 to have become “reclusive” and was in “a highly stressed state, and not thinking clearly”. He said that FSQ’s state of mind could be shown by the fact he used a credit card that his wife would check transactions for to access pornography. He said he observed “deep remorse” in FSQ for his actions prior to the charges being laid. He said FSQ took full responsibility for his conduct and rehabilitation, seeking professional help.

Other offences or conduct referred to in FSQ’s criminal history or COPS reports

86. It is not in dispute that the only other offence recorded on FSQ’s criminal history is a conviction for driving with a prescribed concentration of alcohol in 1976. FSQ was sentenced to a $170 fine and a six month disqualification. The Children’s Guardian conceded that given the age and type of offence, this conviction is “not directly relevant” to whether FSQ poses a risk to the safety of children.

87. The only other incident referred to in these proceedings was on 3 October 2013, when Police attended FSQ’s house in the early hours of the morning. The COPS record states that FSQ and his 26 year old son were engaged in a “verbal argument which resulted in each other pushing and shoving one another”. FSQ is identified by Police as the victim. FSQ’s son returned home “from a night of drinking” and FSQ told Police he and his son got into “a heated argument” about the dishes. FSQ told Police his son lives with depression and bipolar disorder. Police noted that there were no signs of any property damage or injuries to both parties and FSQ declined to make a statement and told Police he did not want an Apprehended Violence Order taken out against his son. Police described FSQ’s son as “visibly effected [sic] under the influence of either alcohol or drugs”. Police stated he “started rambling about [FSQ] being a paedophile”. FSQ’s son was taken to stay overnight at a local hotel “and calm down”.

Applicant’s submissions

88. Mr Wilson said that the facts of this case are not substantially in contest, other than the age or apparent age of the child in the images and whether there were two, three or forty-three such images.

89. Mr Wilson submitted that the fact his client was given a section 9 bond for the conviction reflected a lenient sentence as there was never a real prospect of FSQ receiving a section 10 bond for such an offence. The Tribunal should consider that sentence as a “guidepost” of the objective seriousness of the offending.

90. Mr Wilson submitted that FSQ had taken steps to address his depression. He had seen the psychologist and engaged in a number of sessions before he was sentenced and continued with sessions after that, including as part of the conditions of his bond.

91. Mr Wilson drew our attention to the pre-sentence report prepared for FSQ’s criminal proceedings and dated 1 April 2005. We note that report states that:

[FSQ] appeared genuinely remorseful and seemed to have a better understanding in regard to the impact his actions may have on the demand of children that are displayed on the internet.

…

[FSQ] has been impressive in his contact with [Probation and Parole], presenting as being open and forthright, while also willing to accept responsibility for the offence. More importantly, he has already taken some action in regard to addressing the direct and indirect issues relating to the offence namely his depression and employment.

92. Mr Wilson submitted that there have been no further issues in respect of FSQ in the years following his sentencing. He said this was proof that his client had been rehabilitated.

93. Mr Wilson argued that the child pornography offence is the only evidence before us of risk to children. He submitted that what the Tribunal needed to determine was whether a risk of similar offending exists now.

94. Mr Wilson suggested that the issue about how many images there were which contained child pornography was best addressed by looking at the contemporaneous documents. The Police Facts Sheet refers to two images. The report extracted from the Computerised Operational Policing System (COPS) stated:

[Officers from State Electronic Evidence Branch] examined the exhibits and retrieved a sample of 43 images from the hard drive depicting images of females believed to be under the age of 16 years. The SEEB officers have recovered two images that had been downloaded onto the hard drive and have since been sent to the recycle bin. These images depict a young female.

…

Police examined the accused computer hard drive, a number of pornographic images were discovered. Some of the images depict females under the age of sixteen. In particular two images depict a a [sic] young female believed to be well under the age of 16.

95. Mr Wilson pointed out that FSQ was sentenced on the basis of the two images. He acknowledged that it was not always easy to determine a person’s age in an image, but submitted that it would be difficult to determine the age of the child in the two images due to a lack of precision in the language “well under 16”.

96. Mr Wilson acknowledged that child pornography involves child abuse and when an individual accesses this material they are part of a market. His client sought out pornographic material as a consequence of a major depressive episode. The two child pornography images were part of a larger pool of images. If there had been a larger cache of child abuse material it would indicate FSQ had a sexual interest in children.

97. Mr Wilson said it was unclear whether the reference by Dr Nielssen to three images was a typographical or other error.

98. Mr Wilson challenged the accuracy of the COPS narrative which refers to “43 images from the hard drive depicting images of females believed to be under the age of 16 years.” He submitted that there was no direct evidence supporting this assertion and the COPS narrative was made at an early stage of the investigation. He submitted that use of the words “believed to be” shows that the narrative was not definitive. He pointed out that the assertion that there were 43 images was not repeated in the Facts Sheet and also the Agreed Facts and if there was evidence of a further 43 images of child pornography identified in the ensuing Police investigation, then the Applicant would have been changed in relation to those images.

99. Mr Wilson submitted that the Children’s Guardian had not put any alternative case about the root cause of FSQ’s offending or relied on any expert evidence of his own. Some details differed between what was contained in the psychologist’s report and the evidence of Dr Nielssen. Mr Wilson submitted that there can be differences of opinion but on the issue that counts both experts agreed, that is that FSQ had a very low risk of reoffending.

100. Mr Wilson referred to the incident on 3 October 2013 where FSQ was involved in an argument with his son and Police were called (refer to [86] above). He submitted that this incident did not involve any child and FSQ’s son was heavily intoxicated. He submitted that FSQ’s son referring to FSQ as a “paedophile” adds nothing.

101. Mr Wilson suggested that the Children’s Guardian was adopting a punitive approach as 19 years have passed since FSQ’s conviction. Mr Wilson submitted that a reasonable person would allow FSQ to have direct unsupervised contact with his or her child because a reasonable person would take into consideration the nature of the offending. There were two images which FSQ obtained in a context of a serious depressive episode. FSQ considered that he had deleted those images and he did not retain them for ongoing gratification. FSQ entered a plea of guilty and engaged in treatment with the psychologist. FSQ’s period of supervision by Probation and Parole ended early in January 2007. There was approximately 29 months remaining on the bond.

102. Mr Wilson argued that it would be in the public interest for the Tribunal to make the enabling order. He argued there was a public interest in a member of the community engaging in their community through activities including voluntary and charitable work.

Respondent’s submissions

103. Ms Kelleher submitted that FSQ had a sexual interest in children and that he was prepared to act on that interest. She said this was demonstrated by the conviction for possession of child pornography and the other evidence before the Tribunal.

104. Ms Kelleher argued that FSQ had not rebutted the presumption that he is presumed to pose a risk to the safety of children. She said the evidence was not clear as to what the age of this child was in the two images. FSQ thought the child was 13 or 14 years old but gave oral evidence that he could not recall the images. Dr Nielssen records that FSQ stated there was some argument in court about whether the child was under 16 years. The Police original Facts Sheet described the child as being “well under the age of 16”. The psychologist report refers to FSQ “collecting” images including eventually “pre-pubescent girls”. The report in the local paper referred to “two sexually-explicit images of a girl aged between five and eight”. FSQ’s evidence was that the police prosecutor said that the child was eight years old. She said it was open to the Tribunal to find that the child in the image was very young.

105. Ms Kelleher submitted that FSQ disagreed that he collected images of pre-pubescent girls, contrary to what the psychologist recorded FSQ as having told him. Ms Kelleher submitted that the psychologist’s report was the more reliable evidence as it was closer in time and therefore more contemporaneous to the events. She submitted this raised a question about FSQ’s truthfulness as she argued FSQ in fact did specifically seek out child pornography.

106. Ms Kelleher said that FSQ did not experience low mood because he was in between jobs. In fact, he was employed at a local council when the offending occurred.

107. Ms Kelleher said that if the Tribunal made a finding that FSQ sought the child pornography out as he was experiencing a depressive episode, the Tribunal ought be concerned about what would happen if FSQ experienced a similar episode in the future and whether that would increase his risk.

108. Ms Kelleher pointed out differences between the report of the psychologist and the report and evidence of Dr Nielssen. They differed as to the age of the victim. The Applicant himself said he thought the girl in the images was 13 or 14 years old. Ms Kelleher argued that to suggest, as FSQ did to Dr Nielssen as recorded in his report, that there was argument as to whether the girl was under 16 is “disingenuous”. She said that there were also differences in the mental health history recorded by both report-writers, with the psychologist identifying a lengthy history of depressive episodes. The writers also differed in what they said FSQ told them about seeking out child pornography. FSQ told Dr Nielssen that he did not specifically look for child abuse material. However, FSQ told the psychologist that he collected images out of an “obsessive curiosity” with pornography of all types, including images of “pre-pubescent girls”. She submitted that FSQ had a sexual interest in children and wanted to see pornographic images of children and actively sought those images out.

103. Ms Kelleher submitted that Dr Nielssen’s report should be treated with some caution and Dr Nielssen could have asked more detailed questions when he conducted his assessment of FSQ. She argued that the psychologist report was more contemporaneous. She said it was open to the Tribunal on that evidence to find that FSQ did in fact collect images of pre-pubescent girls.

104. Ms Kelleher submitted that the sentence imposed by the Local Court was a lengthy section 9 bond of four years. She said that the legislation has since changed and the equivalent sentence today would be a community correction order, although the maximum term of such orders is three years. She said the fact a four year bond was given reflects the objective seriousness of the offence and said that $5,000 was a significant fine.

105. Ms Kelleher said that there were some difficulties as the Police COPS narrative said there were 43 images “depicting images of females believed to be under the age of 16 years”.
     The Facts Sheet referred to two images of a girl “believed to be well under the age of 16”. The article in the local paper referred to images of a girl aged between five and eight years. Ms Kelleher rejected the argument that if there were 43 images of children that FSQ would have been charged with those counts, as there might be other explanations such as those images were in the temporary files on the computer and only viewed but not retained. Mr Wilson submitted this was an unfair submission as it had not been raised directly with the Applicant.

106. In written submissions Ms Kelleher said that there were “some” images discovered which depicted “females under the age of sixteen” and that there were two images that depicted a young female “believed to be well under the age of 16”. These images had been downloaded on 9 and 10 June 2004 and sent to the recycle bin on 5 August 2004. She argued that it would be open to the Tribunal to find that the child in the two images was “a very young child”.

107. Ms Kelleher said that the period of 19 years since the offending was a long time but that it was arguable that FSQ’s risk to children existed but had not materialised over that period. She pointed out that the test for risk to the safety of children is not “probable” or “likely” but “real and appreciable” (refer to [134] and [135] below).

108. Ms Kelleher submitted that a reasonable person would not allow his or her children to have direct unsupervised contact with FSQ. The reasonable person would take into account the 19 year gap since the offending and the expert’s opinion that FSQ was of low risk but would ultimately be concerned because FSQ’s conviction indicated he has a sexual interest in children.

109. Ms Kelleher said that the paramount consideration is the safety and welfare of children and it would therefore not be in the public interest that FSQ be granted a clearance given his conduct in possessing sexualised images of children and his sexual interest and curiosity in those images.

Consideration

Preliminary comments

116. The possession of child pornography is criminal conduct and although it may not involve direct contact with victims, it is harmful to children because it involves the abuse and exploitation of children. As Acting District Court Judge and Principal Member the Honourable G Mullane said in BMP v Children’s Guardian [2015] NSWCATAD 201, the possession of child pornography has serious consequences for the child or children depicted in child pornography (at [21]):

It is the purchasers and users of child pornography that fund the industry and thereby the exploitation of the children depicted and any serious long term adverse consequences for such children. 

Findings of fact

117. On the evidence before us we make the following factual findings.

118. We are satisfied that on 9 and 10 June 2004 FSQ downloaded two images onto his computer. These two images were of the same female and that female was under the age of 16 years and naked in the image. FSQ sent these two images to the recycle bin on his computer on 5 August 2004.

119. In determining whether or not we find as a matter of fact that FSQ had more than two pornographic images of children under the age of 16 in his possession, we considered the comments made by his Honour Justice Beech-Jones of the Supreme Court observed in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 at [29]:

It suffices to state that NCAT would be well advised to have regard to [Briginshaw’s admonitions] 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…

120. The Tribunal is not bound by the rules of evidence in this proceeding: refer to section 38(2) of the Civil and Administrative Tribunal Act 2013. However, it is permissible for the Tribunal to use section 140 of the Evidence Act 1995 and the principle enunciated in cases such as Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 as a guide. Those cases stand for the proposition that a court should not lightly make a finding that on the balance of probabilities a party to civil litigation has been guilty of criminal conduct. The tribunal must feel a level of “actual persuasion” and cannot reach a state of mind of “reasonable satisfaction” that the allegation has been made out independently of the “nature and consequence of the fact or facts to be proved” (refer to Dixon J in Briginshaw at 361-362).

121. We reject the suggestion that there were more than two images of children under 16 years. Dr Nielssen referred to three girls in three images in his report. We are satisfied that this was an error. We find the history taken by Dr Nielssen from FSQ occurred in an appointment many years after the events giving rise the charge.

122. The Police COPS narrative refers to “a sample of 43 images from [FSQ’s] hard drive depicting images of females believed to be under the age of 16 years”. We reject any finding that there were 43 child pornography images. We are persuaded by the Applicant’s submission that the initial COPS entry was made at an early stage of the Police investigation. There is no direct evidence supporting the assertion that there were any additional images of children under the age of 16 years. The assertion about a further 43 images is not repeated in the Fact Sheet. We are positively satisfied on the evidence before us and that there were no other images of children under the age of 16 years on FSQ’s computer and we so find.

123. We do not find ourselves in the situation described in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 at [30]-[33] where:

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.

124. Rather, we are “affirmatively satisfied”, to use the wording of his Honour Justice Beech-Jones in BKE that there were no additional child pornography images.

125. We accept FSQ’s account that when he viewed the images he realised they were child pornography. We also accept his evidence that “to the best of [his] recollection” the image showed a girl approximately of 13 to 14 years of age. There is no other direct and reliable evidence about the age of the child and we accepted the credibility of this evidence as we found FSQ to be a frank and unguarded witness who was fully prepared to accept responsibility for his actions.

126. We reject the assertion of the Respondent that it is open to us to find that the images were of “a very young child”. We accept that the child was clearly under 16 as that provided the prosecution with a case.

127. We reject the account in the local paper that the child in the images was aged 5 to 8 years old. A news story in a local paper is not probative in our view, as it is entirely unclear where the writer obtained this information and to what degree it was checked. Referring again to the principles in Briginshaw as a guide, “reasonable satisfaction should not be reached by inexact proofs, indefinite testimony, or indirect references” (refer to Dixon J in Briginshaw at 361-362).

128. The Respondent placed some reliance on a reference in the psychologist’s report that FSQ had “collected pictures involving old people, fat people, coloured people, dwarfs etc. and eventually, images of pre-pubescent girls”. There is no link between this statement and any direct reference to the images the subject of the charges. It provides no basis in our view for a factual finding about the age of the girl in those images.

129. We considered the expert evidence of the psychologist and Dr Nielssen. We accept that FSQ’s access and viewing of pornography occurred in the context of an untreated depressive episode. We reject the assertion of the Respondent that FSQ has a sexual interest or attraction to children and we so find.

130. We find that FSQ sought out a range of material and not child pornography, in particular. We reject a finding that FSQ specifically sought out child pornography and we are affirmatively satisfied we should reject such a finding as it is unsupported by the evidence. There is no evidence from the website names FSQ used that these contained images of children and the Respondent did not make that argument. We accept the opinion of Dr Nielssen that if child pornography was all FSQ had collected, there would be an indication that FSQ had a sexual interest in children.

131. We find that FSQ’s desire to use pornography ceased once his depression was effectively treated. We find that FSQ received treatment with anti-depressant medication around the time of the offence for approximately three years and ceased that medication under the supervision of his doctor. We find that FSQ continued treatment with his psychologist for a period of approximately six to nine months after his criminal matter was finalised. We accept that there has not been a subsequent episode of depression.

132. We find that the incident involving FSQ’s son on 3 October 2013 (referred to at [86]) adds nothing to the matters which we are obliged to consider. His son was an adult at the time and the fact that the two had a heated argument and engaged in pushing and shoving each other does not weigh into the matters which we must consider to determine whether or not FSQ is a risk to the safety of children. The fact his son referred to FSQ as a “paedophile” also does not assist us in any way as there is no context to the use of that term and we cannot glean anything from its use.

133. We consider FSQ’s driving with a prescribed concentration of alcohol offence 1976 to be of no relevance to the question before us.

Rebutting the statutory presumption: Has FSQ proved that he does not pose a risk to the safety of children?

134. We accept the submission of the Respondent that the correct test for the Tribunal to consider in determining whether to grant an enabling order is whether the Tribunal is positively satisfied that FSQ does not pose a risk to the safety of children. FSQ has the onus of rebutting the statutory presumption that that he poses a risk to the safety of children: see EOLv Children’s Guardian [2021] NSWCATAD 146 at [18] and BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 at [25].

135. The concept of “risk” to the safety of children has been considered by the Supreme Court in Commission forChildren and Young People v V [2002] NSWSC 949. What is being examined 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” and that this would exclude “fanciful or theoretical risks”: at [42].

136. The meaning of risk to the safety of children as being “real and appreciable” risk is now enshrined in section 5B of the Child Protection (Working with Children) Act 2012.

137. In determining the application for an enabling order, we must consider the factors set out in section 30(1) of the Child Protection (Working with Children) Act 2012. We address each in turn.

(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

138. The possession of child pornography is a serious offence. The maximum penalty available at the time for a breach of section 578B(2) of the Crimes Act 1900 was two years’ imprisonment. We accept Ms Kelleher’s submission that legislative changes in 2005 resulted in an increased penalty to 10 years’ imprisonment for the equivalent offence.

139. We find that the offending conduct to be at the lower end of seriousness for the offence because of the small number of images and the fact that a bond was imposed, albeit a bond for the period of four years.

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

140. The offending occurred in 2004, some 19 years prior to the hearing of this proceeding. There is no other conduct that gives rise to concern since that time.

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

141. FSQ was 46 years old at the time of offending and was 65 years old at the time of the hearing of this proceeding.

(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

142. There was one victim in the two images and she was clearly under 16 years old and approximately 13 or 14 years of age. Other than her age, there is no evidence about the vulnerability of the victim.

143. In written submissions Mr Wilson argued that the age of the child in the images is not relevant to the gravity of the offending. He argued it is child pornography and the Child Protection (Working with Children) Act 2012 is concerned with all risks to children irrespective of their age. We reject this argument as we are required to consider the age of any victim under this provision.

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

144. There is approximately 32 to 33 years difference between FSQ and the victim in the images.

145. There was no relationship between FSQ and the victim.

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

146. FSQ knew the victim in the image was a child under 16 years.

(g)  the person’s present age

147. FSQ was 65 at the time of hearing of this proceeding.

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

148. The only matters on FSQ’s criminal history are the child pornography conviction and a conviction for driving with a prescribed concentration of alcohol in 1976.

149. The seriousness of the possess child pornography offence is addressed under (a) at [137] above.

150. The driving conviction resulted in a $170 fine and a six month disqualification. The Children’s Guardian conceded that given the age and type of offence, this conviction is “not directly relevant” to whether FSQ poses a risk to the safety of children. We have found that this conviction is not relevant to the question before us in this proceeding.

151. We have also found that the incident involving FSQ’s son on 3 October 2013 (referred to at [86]) adds nothing to the matters which we are obliged to consider. Refer to our consideration of this incident above at [131].

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

152. We discuss the risk of repetition below under ‘Assessing the expert evidence as to risk’ from [160].

153. The impact on children of a person subscribing to or accessing and possessing child pornography is as described under ‘Preliminary comments’ above at [115].

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

154. There is no order of a court or tribunal in force in respect of FSQ.

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

155. We have considered FSQ’s affidavit which is summarised above under ’FSQ’s written evidence’ from [36] above. FSQ states that has not been the subject of any complaints, investigations or criminal charges since the disqualifying offence.

156. We have considered Dr Nielssen’s report which is also summarised above under ‘Evidence of Dr Nielssen’. Dr Nielssen’s opinion was that FSQ has no sexual interest in children and there is low risk of repetition of similar conduct and there were no features of FSQ’s clinical history or presentation which indicate he is a risk to the safety of children.

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

157. The Respondent advised the Tribunal that no such information was obtained under section 36A.

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

158. The Respondent submits and it is not in dispute that the websites subscribed to by FSQ brought him to the attention of Police Operation Auxin, which was a Police operation designed to detect persons involved in the possession and distribution of child pornography.

159. The fact that FSQ came to the attention of Police through Operation Auxin does not advance the Respondent’s case as the mere fact of being drawn into such an Operation does not ground any factual finding that what FSQ searched for was child pornography or that he has a sexual interest in children. We have explained the evidence we considered to base our findings in respect of those matters.

160. The Respondent also points to a CD-Rom seized in the search classified as Refused Classification as depicted a person who is or is likely to be under sixteen in a way likely to cause offence to the reasonable person. It is not clear what was on this CR-Rom and no evidence was led about that. We cannot consider this evidence and it was not put in any way to FSQ during these proceedings.

Assessing the expert evidence as to risk

161. We concluded that FSQ does not pose a real and appreciable risk to children and he has succeeded in rebutting the statutory presumption that he is a risk to children.

162. Some of the factors that led us to that determination were:

1. The downloading and viewing of child pornography by FSQ should be viewed in context. We accept the expert evidence that this conduct occurred when FSQ was experiencing an episode of clinical depression.

2. We have found that FSQ’s desire to view pornography ended once the depression was treated and he has not experienced an episode of depression since.

3. FSQ’s depression responded well to treatment and FSQ took anti-depressant medication for about three years, ceasing the medication under medical supervision.

4. FSQ continued psychological treatment for a period of six to nine months following the finalisation of the criminal proceedings.

5. We are satisfied that FSQ does not have a sexual interest in children.

6. Some 19 years has passed since the disqualifying offence. This is a significant period of time. There has been no other conduct of concern since.

7. We accept the opinions of both experts, although we prefer to opinion of Dr Nielssen on the issue of the inapplicability of actuarial instruments to estimate the probability of sexual offending, given that FSQ did not commit a “contact sexual offence”.

163. We accept the opinion of Dr Nielssen that FSQ poses no real or appreciable risk to children. We reject the argument of the Respondent that such opinions are entirely based on self-reporting, as it falls to the expert to assess not only what the person tells them, but to consider any background material and to apply their expertise to how the person presents and the observations they make of the person. A high degree of skill was employed by the psychologist and Dr Nielssen in reaching an opinion based on all of these aspects.

163. We accept Dr Nielssen’s evidence that the following factors are relevant to the risk of committing any further offence:

• the absence of any pattern of general offending

• the absence of evidence of a specific attraction to female children

• the absence of a substance use disorder or a psychiatric disorder associated with impaired social judgement and inhibition

• the pro-social attitudes elicited during Dr Nielssen’s interview with FSQ

165. We do not rely on Dr Nielssen’s observation that the risk of sexual offending declines with age and there was a marked drop after the age of 60 years old. This does not assist us to determine whether or not FSQ is himself a risk to the safety of children.

166. We accept the assessment of Dr Nielssen that there are no features of FSQ’s clinical history or presentation that indicated a real or appreciable risk to children.

167. When considering the section 30 criteria and the assessment we made of the expert evidence we are satisfied that FSQ does not pose a risk to the safety of children.

Should the Tribunal exercise the discretion to make an enabling order?

168. Having found that FSQ poses no risk to the safety of children, we decided in the circumstances to exercise our discretion under section 28(1) of the Child Protection (Working with Children) Act 2012 to grant the enabling order and declare that FSQ is not to be treated as a disqualified person.

Should the Tribunal order the Respondent to grant FSQ a clearance?

169. Even if we are satisfied that the Applicant poses no risk to the safety of children and the enabling order should be made, there is a further discretion in s.28(6) of the Child Protection (Working with Children) Act 2012. That provision states that the Tribunal “may” order the Children’s Guardian to grant the clearance.

170. We considered the further matters we must be satisfied of which are set out in section 30(1A) of the Child Protection (Working with Children) Act 2012. We may not make an order which has the effect of enabling FSQ to work with children unless we are satisfied of these two matters.

(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

171. The decision of his Honour Justice Davies of the NSW Supreme Court in Office of the Children’s Guardian v EQE [2022] NSWSC 871 at [51]-[52] gives guidance as to the reasonable person test. The Court follows the test in VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 at [36] where the Victorian Civil and Administrative Tribunal considered a similar provision in the Victorian legislation:

This sub-clause [cl 102(2)] and its companion sub-section in the Working With Children Act [s 13(3)] requires the application of an objective standard based upon the views of a reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.

172. The reasonable person test is an objective standard. The reasonable person would acquaint themselves with all the evidence and submissions that are set out above. An appropriately balanced view about whether or not FSQ has rehabilitated would be applied.

173. The relevant facts considered by the reasonable person would include the facts as found by us above, including that FSQ pleaded guilty and was convicted of the offence of possess child pornography, the sentence imposed and the fact that there was no other conduct of concern for approximately 19 years since. The reasonable person would consider the context of the offending conduct, that is that the conduct occurred when FSQ experienced an episode of clinical depression and once the depression was treated effectively FSQ had no desire to access pornography of any kind. The fact that FSQ does not have a sexual interest in children and has not experienced depression since the time of the offending conduct would also be considered. The expert evidence that FSQ is not a risk to children would be another aspect of what the reasonable person took into account.

174. Based on these facts, we find that 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.

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

175. We agree with the submission of the Respondent that the meaning and interpretation given to public interest must be in light of the paramount consideration in section 4, namely:

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

176. FSQ seeks a working with children check clearance so he can participate in church, charitable and musical society activities as a volunteer. The Respondent acknowledged that there is a public interest in persons who do not pose a risk to children being able to participate in volunteer and other activities. We agree that the Applicant’s own interest in participating in his own hobbies or activities that both he and his wife enjoy together does not form part of the public interest.

177. The concept of public interest in a broad one and the power and responsibility to determine whether the issue of the clearance is in the public interest has been vested by Parliament in the Tribunal: refer to Office of the Children’s Guardian v EQE [2022] NSWSC 871 at [56]-[57].

178. It is arguable that a right of a person to engage in community affairs can be considered part of the public interest: see EQE at [57], where the Court refers to the decision of PJR v Secretary to the Department of Justice [2006] VCAT 2455.

179. We assessed the public interest in granting FSQ a clearance against the paramount consideration of the Child Protection (Working with Children) Act 2012 and the objects of the Act to protect children by requiring those engaged in child-related work to have working with children check clearances (refer to section 3), matters which are central to the public interest.

180. The Court in EQE (at [58]) cited this passage from ECQ v The Children’s Guardian [2021] NSWCATAD 217 with approval:

[45]   When assessing the public interest, priority should be given to the broader interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY’s case [CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262] at [75]. At the same time, the Tribunal ought to also have some regard to the rehabilitation of offenders: ZZ v Secretary to the Department of Justice [2013] VSC 267 at [202] and take into consideration the right of a person to engage in work and in community affairs and to have contact with children where they possess the appropriate skills and experience: CYY’s case at [75].

181. Volunteering and participation in community activities can confer a public benefit. In the present case, in circumstances where we have found that FSQ does not pose a real and appreciable risk to children, we are satisfied that it would be in the public interest for the Tribunal to make the order that the Children’s Guardian to grant the clearance.

Conclusion

182. For the reasons set out above, we make the enabling order and we order that the Children’s Guardian to grant FSQ a working with children check clearance.

ORDERS

1. The Tribunal declares that FSQ is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of possess child pornography of which he was convicted by the Local Court on 7 June 2005.

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant FSQ a working with children check clearance.

**********

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: 11 October 2024