FZG v Children's Guardian

[2025] NSWCATAD 21

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FZG V Children’s Guardian [2025] NSWCATAD 21

Hearing dates:

23 May 2024

Date of orders:

17 January 2025

Decision date:

17 January 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Mobbs, Senior Member
J Herberte, General Member

Decision:

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

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – application for an enabling order –applicant is a disqualified person having been convicted of a disqualifying offence (sexual touching) – insight– whether applicant has displaced the statutory presumption that he poses a risk to the safety of children.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

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

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

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

M v M (1988) 166 CLR 69,

Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:

None

Category:

Principal judgment

Parties:

FZG (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
Opara and Singh Lawyers Pty Ltd (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2023/00285426

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts the disclosure of the name of the Applicant, the victim and any witness in any criminal proceedings, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. The Applicant in these proceedings is referred to as “FZG”. FZG is the Applicant’s pseudonym used in accordance with the order made by the Tribunal pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)(the NCAT Act).

2. The Applicant was granted a working with children’s check clearance (Clearance) on 4 March 2020.

3. On 29 October 2022, the Applicant was charged with an offence of sexually touching another person without consent. He was subsequently convicted in relation to that offence on 22 February 2023.

4. On 31 October 2022, the Applicant’s Clearance was cancelled by the Children’s Guardian (the Respondent) on the basis that the Applicant was a disqualified person.

5. On 6 September 2023, the Applicant filed an application with the Tribunal, together with a bundle of documentary material and written submissions from Mr Opara, his legal representative. In effect, the Applicant seeks a finding by the Tribunal that he does not pose a risk to children and that he be granted an enabling order pursuant to s 28 of the Child Protection (Working with Children) Act 2012 (NSW) (the Act).

6. The Respondent opposes the application for an enabling order.

Non-publication order

7. The Tribunal made an order prohibiting the disclosure of the name of the Applicant pursuant to s 64(1)(a) of the NCAT Act. The Tribunal is satisfied that in the circumstances of this case, that it is desirable to prohibit the disclosure of the name of the Applicant’s victim in any proceedings relating to the offence; the name of any witness; and to any evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, pursuant to s 64(1)(a) of the NCAT Act.

8. It is noted that for the purposes of s 64 of the NCAT Act, 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.

Jurisdiction of the Tribunal

9. Section 28 of the Act provides that applications may be made to the Tribunal for enabling orders under the Act. The Tribunal is satisfied that it has jurisdiction to hear and determine the Applicant’s application in this matter.

Legislation

10. The object of the Act is to protect children by requiring people to hold a Clearance if they engage in child-related work: see ss 3 and 28(1) of the Act. The safety, welfare, and well-being of children and, in particular, protecting them from abuse, are the paramount considerations under the Act: s 4 of the Act.

11. 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 Respondent for the relevant clearance. A breach of s 8(1) is an offence.

12. Section 18(1)(a) of the Act provides the Respondent must not grant a Clearance to “disqualified persons”, which is relevantly defined to include:

(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,

13. Clause 1(1)(e) of Schedule 2 to the Act specifies an offence under s 61KC of the Crimes Act 1900 (NSW). Section 61KC of the Crimes Act relevantly provides:

61KC   Sexual touching

Any person (the accused person) who without the consent of another person (the complainant) and knowing that the complainant does not consent intentionally—

1. sexually touches the complainant, or

…

is guilty of an offence.

Maximum penalty—Imprisonment for 5 years.

14. Section 28 of the Act permits the Tribunal to make an enabling order and relevantly provides:

(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.

…

(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.

15. Section 30(1) of the Act sets out the considerations the Tribunal must take into account when deciding whether to grant an enabling order.

16. Section 30(1A) prohibits the Tribunal from making an enabling order unless 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.

Proceedings on 21 March 2024

17. The matter was initially listed for hearing on 21 March 2024. However, on that day there was no appearance by the Applicant or Mr Opara when the matter was called at 10 am. Ms Bromwich, who appeared on behalf of the Respondent at the hearing, indicated that her instructing solicitor had just telephoned Mr Opara, who had advised that he required an audio visual link (AVL) in order to participate in the proceedings.

18. The Tribunal then made contact with Mr Opara on his mobile telephone, and he advised that his office was being renovated and that he would require some time to be ready for the hearing. He then requested that the matter be adjourned until the following day. Mr Opara confirmed that the Applicant had previously been advised of the hearing date and that submissions had been provided on his behalf. The matter was stood down for a short period of time to allow him to contact the Applicant and to obtain an AVL from the Registry to join the hearing.

19. When the matter resumed, the Applicant and Mr Opara appeared by way of AVL. Mr Opara confirmed that he had not spoken with the Applicant since sending him details of the hearing date. He apologised and indicated that his office was being renovated and that he did not have the file. He again asked if the matter could be heard the following day.

20. Ms Bromwich indicated that she had instructions to consent to the Applicant’s request for an adjournment. She also noted that the most recent information in relation to the Applicant came from the Magistrate’s remarks when sentencing him in February 2023. Ms Bromwich indicated that whilst no statement had been filed on behalf of the Applicant, it had been assumed that he would give evidence at the hearing, and that the Respondent would not have objected to him doing so. She then foreshadowed that in the absence of further evidence from the Applicant, the Respondent would submit that the Tribunal could not make the enabling order sought by the Applicant.

21. The Tribunal indicated that it would not be possible to hear the matter the following day and instead adjourned the matter to for hearing on 23 May 2024, having first clarified with the Applicant that this caused no prejudice to him in relation to his student visa. Orders, including directions, were made to allow for the filing and service of further evidence and submissions by the parties.

The hearing

22. The matter was heard by the Tribunal on 23 May 2024.

Applicant’s material

23. The Applicant relied on the bundle of documentary evidence attached to his application. This material included three letters of support for the Applicant, each dated from December 2022 and addressed to the Magistrate; the Applicant’s Criminal History - Bail Report; the Court Attendance Notice relating to his criminal charge and the Police Facts Sheet for that offence (Facts Sheet); the Reason for Bail Decision; the Sentencing Assessment Report dated 16 February 2022; a Certificate of Completion dated June 2023 for the Applicant relating to six sessions of General Counselling; and a letter dated 20 February 2023 from the NSW Court Chaplains Association addressed to the Presiding Magistrate confirming that the Applicant had successfully completed six weeks of the eight week Positive Lifestyle Program.

24. In addition, the Applicant relied on a Certificate of Service for work undertaken by the Applicant from 3 October 2022 to 28 November 2022 and a letter confirming his employment with a different employer from 11 May 2022 to 23 April 2023. Although it appeared that these documents had not previously been given to the Respondent, no objection was taken to their tender.

25. Although the Applicant had not provided a statement, no objection was made to the Applicant giving oral evidence at the hearing, which he did, and he was subsequently cross-examined by Ms Bromwich.

26. The Applicant relied on written submissions dated 22 January 2024 and oral submissions were made on his behalf by Mr Opara at the hearing.

Respondent’s material

27. The Respondent relied on three separate bundles of documentary evidence in these proceedings.

28. The Respondent also relied on written submissions dated 21 February 2024 and Ms Bromwich made oral submissions at the hearing.

Issues arising from the oral submissions at the hearing

29. During closing submissions, there was disagreement between the parties as to the exact form of the evidence given by the Applicant during his cross-examination. Given that the evidence and oral submissions in the proceedings had concluded, further orders, including directions, were made by the Tribunal for the Respondent to obtain a copy of the sound recording of the cross-examination of the Applicant. The parties were also provided with an opportunity to make submissions on certain of the evidence given by the Applicant in his cross-examination and to make submissions in relation to the Tribunal’s proposal to dispense with a further hearing on this issue.

30. Supplementary submissions dated 14 June 2024 were received from the Applicant on 17 June 2024 (Respondent’s supplementary submissions) that included a transcription of the relevant evidence given by the Applicant during his cross-examination. Supplementary/Additional Written Submissions were received from the Applicant on 8 July 2024 (Applicant’s supplementary submissions).

31. Having regard to the submissions and the material before the Tribunal, the Tribunal makes an order pursuant to s 50(2) of the NCAT Act dispensing with a further hearing on this issue. Further consideration will be given to the Applicant’s evidence in cross-examination below.

The Applicant’s position

32. It was submitted on behalf of the Applicant, that he is a person of good character; that the criminal offence is a one-off offence; is out of character for the Applicant; and that he had pleaded guilty to the offence and is truly remorseful in relation to his conduct. The Tribunal was urged to grant the enabling order to allow the Applicant to resume work as a carer or in the health care sector as he has insight into his offending, has demonstrated remorse; has not committed any other offences and does not present any risk to the community.

The Respondent’s position

33. The Respondent submitted that the Tribunal ought:

1. not be satisfied that the Applicant has displaced the presumption that he poses a real and appreciable risk to the safety of children;

2. to find that a reasonable person would not permit the Applicant to have direct, unsupervised contact with their child in the course of any child-related work; and

3. to find that it is not in the public interest to make the enabling order.

34. Accordingly, it was submitted that the Application should be dismissed as it would not be appropriate for the Tribunal to make an enabling order under s 28 of the Act or to grant the Applicant a Clearance.

Consideration

Background

35. The Applicant is currently aged 27 years old and has been in Australia on a student visa since 2019. At the time of the hearing, he was sharing an apartment with a male friend and whilst he had previously studied social work, he gave evidence that he had changed to studying sports management following the criminal matter and discussions with his education provider. The Applicant had previously worked in a number of casual roles as a support worker in disability services and at the time of the hearing, he continued to work to support himself and pay for his studies. No evidence was before the Tribunal in relation to any difficulties that the Applicant had in relation to finding work.

The Disqualifying Offence

36. On 22 February 2023, the Applicant having pleaded guilty in the Local Court to the offence of sexually touch another person without consent under s 61KC(a) of the Crimes Act, was convicted of that offence, and pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW), was sentenced to a term of imprisonment of 18 months to be served by way of intensive correction in the community, subject to a number of conditions. The Intensive Correction Order commenced on 22 February 2023 and expired on 21 August 2024.

37. The sentencing Magistrate, with the Applicant’s consent, also made a Judicial Apprehended Violence Order (AVO) that the Applicant not approach or contact the victim for a period of 12 months commencing on 22 February 2023.

38. It was not disputed that as a consequence of the Applicant’s conviction for the offence under s 61KC(a) (Disqualifying Offence), that the Applicant is a disqualified person under the Act and the Tribunal is satisfied that this is the case.

Circumstances of the Disqualifying Offence

39. The material before the Tribunal included the Facts Sheet on which the Applicant was sentenced for the Disqualifying Offence, together with a transcript of the sentence proceedings, including the Magistrate’s remarks on sentence (Remarks on Sentence). The transcript indicates that the Facts Sheet was handed up to the Magistrate, without objection. Mr Opara, who appeared for the Applicant in these proceedings also appeared on the Applicant’s behalf in the criminal proceedings for the Disqualifying Offence.

40. In sentencing the Applicant, the Magistrate made a number of specific references to the Facts Sheet. It was accepted by the Magistrate that the victim thought she was the Applicant’s friend and that on 27 October 2022, the Applicant persuaded her to go up to his place after dinner. The Facts Sheet refers to the victim having told the Applicant that the “meet up” was for nothing more than just being friends. After dinner, the Applicant asked the victim to sit on his lap, and the victim said “no.” The Applicant then stood up and tried to kiss the victim, who pushed him away.

41. The victim, with the understanding that they were going to a games arcade got into the Applicant’s car, and the Applicant instead drove her to his apartment. The victim immediately messaged a friend (a witness in the criminal proceedings), stating “Might need you to come get me, he’s brought me to his house even though I didn’t want to, feeling uncomfortable.” The Facts Sheet states that the Applicant was persistent and wanted the victim to go upstairs and she eventually did so.

42. Inside his apartment, the Magistrate found that the Applicant tried to kiss the victim, with the kiss ending up on the side of her face. He then tried to have her drink some wine, but she refused, and the Applicant then placed his arm around her shoulders. The Applicant told the victim to relax and spoke to her about chilling out for a bit before he would take her home. The Applicant then used his right hand and firmly touched the victim on her breast. She was in shock because of that, and immediately grabbed the Applicant’s arm with her hand and tried to pull his hand away. The Applicant then grabbed her hand whilst continuing to have his other hand on her breast.

43. The Applicant spoke to her and told her to relax. The victim then said that the Applicant was not respecting her boundaries and that “this is not what I want.” The Applicant said, “I hear you” and the victim responded by saying, “You’re not hearing me.” The Applicant then removed his hand from her breast but remained with his arm around her shoulders. The Magistrate continued on to say that the Applicant then placed his hand down the victim’s dress, touching her skin, and started to firmly squeeze her breast. The victim told the Applicant to stop and tried to pull his hand away but was prevented by him.

44. The Magistrate made reference to the Facts Sheet which stated that the Applicant started to breathe heavily, to kiss the victim’s neck and to bite it. The victim told him to stop and pushed him to get him off her. The Applicant then moved his arm, stopped kissing the victim, and kneeled on the floor in front of her.

45. The Magistrate said that the Applicant did not stop there and moved both of his hands quickly towards the victim’s breasts and grabbed her dress and bra, pulled them down, revealing her breasts. The Magistrate said the Applicant moved towards the victim and started kissing, sucking, and biting one of the victim’s breasts at the same time as fondling the other, and this went on for about three minutes. The victim again attempted to push the Applicant away, but the Applicant took hold of her hands so that she could not do that. The victim was scared and frightened and told the Applicant that she was feeling uncomfortable and wanted to leave. She said it louder and this caused the Applicant to stand up and stop.

46. The victim then saw some messages on her phone and told the Applicant she was going to be picked up by a friend. The Applicant then tried to stop her from leaving, putting himself in between herself and the front door. The victim then left and made an immediate complaint to her friend. The Magistrate referred to the Facts Sheet that later that night the Applicant sent her a text stating “I’ve been stupid. Please, I’m really sorry” and later “Honestly, I ‘expletive’ up.”

39. The Facts Sheet records that shortly afterwards, the victim reported the matter to police. On 29 October 2022, the Applicant presented himself to police and was charged with the Disqualifying Offence.

40. The Sentencing Assessment Report was prepared for the criminal proceedings and notes that the Applicant accepted the Facts Sheet and verbalised that he had “overstepped boundaries” with the victim. It was further noted that “Despite knowing the laws of consent, [the Applicant] justified his offending by thinking he had already formed a connection with the victim from previous social interactions.”

41. Under the heading, “Risk assessment” it was recorded that the Applicant had been assessed as a “Low” risk of reoffending, but that Community Corrections had overridden his overall risk of reoffending to “T2/Medium as indicated by the completion of the STATIC 99R”. The Report also referred to third party concerns regarding the Applicant’s history of depression and suicidal ideations.

42. The Sentencing Assessment Report made recommendations including:

• A supervision plan including a referral to a Corrective Services psychologist to undertake further assessment of dynamic risks and provide recommendations regarding appropriate intervention to address the sexual nature of the Applicant’s offending behaviour; and

• The completion of cognitive behaviour therapy-based intervention exercises to target interpersonal relationships, impulsivity, encourage pro-social lifestyle choices and encourage self-awareness of thoughts and feelings.

51. In his Remarks on Sentence, the Magistrate made the following observations:

• That the Disqualifying Offence involved “sexual touching of a high order” and that the Applicant had committed an act of violence by continuing to force himself on the victim whilst she was fighting him off.

• That the offence fell into at least the mid-range of objective seriousness.

• That the offending crossed the threshold in s 5(1) of the Crimes (Sentencing and Procedure) Act. That section provides that a Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

52. The Magistrate accepted that there was some evidence of contrition and remorse from the Applicant and referred to the Applicant’s letter to him in which the Applicant had written that he had “mistakenly touched [the victim]” and “mistakenly misjudged the situation.” The Magistrate found that there was no mistake and no misjudgement and that all that the Applicant was thinking about were his own sexual needs and nothing about the woman. The Magistrate found that the Applicant’s expression of his contrition and remorse was “entirely inadequate” and did not demonstrate a real understanding of the gravity of what the Applicant had done. A copy of the letter from the Applicant to the Magistrate was not before the Tribunal.

53. The Magistrate accepted however, that there was other evidence of contrition and remorse by the Applicant in the Sentencing Assessment Report.

Applicant’s evidence before the Tribunal

54. The Applicant gave evidence before the Tribunal and was cross-examined. He confirmed that he had not committed any other criminal offences, either in Australia or his country of origin. He stated that he deeply regretted what had happened and that the incident was always at the back of his mind, and that he tried to become a better person and wanted to set an example for his siblings.

55. The Applicant gave evidence that his sister lived overseas and that she was the first person that he had told about the Disqualifying Offence and that he had told her everything. The Applicant said that he used to take care of his sister’s children when she went to work and referred to his family upbringing in a strong Catholic family.

56. The Applicant also referred to playing football and helping to coach younger children. He referred to undergoing counselling and undertaking the Positive Lifestyle Programme and that as a result, he was able to control himself more and that similar incidents were “definitely” not going to happen. In the past, the Applicant said, he had considered becoming a priest but now believed he could serve in a different way, and that he would like to help children, particularly in his country of origin. His plea to the Tribunal was that he be given a second chance.

57. The Applicant said that the counselling he had undertaken more fully helped him to understand the importance of “consent” in sexual interactions. He conceded in cross-examination that he had understood the concept of consent at the time of the commission of the Disqualifying Offence and accepted that the victim had verbally told him to him stop, and that she had repeated this several times. When Ms Bromwich asked why he did not stop, the Applicant said that he took full responsibility and that he did not understand why he did what he did.

Issue arising from cross-examination

58. In cross examination, the Applicant gave evidence relating to his conduct after he knelt on the floor in front of the victim. This conduct is set out in the Facts Sheet and as set out above, was the subject of specific findings by the Magistrate in the Remarks on Sentence.

59. During closing submissions before the Tribunal, there was disagreement between the parties as to the exact form of the evidence given by the Applicant. The Respondent submitted that it appeared on the Applicant’s evidence in cross-examination that he was denying some of the most serious parts of the Disqualifying Offence. In his submissions in reply, the Applicant’s legal representative disagreed that this was the case and submitted that the Applicant had pleaded guilty to the Disqualifying Offence, and that without objection from the Applicant, the Magistrate had sentenced him on the basis of the Facts Sheet.

60. As referred to previously, submissions were subsequently received from both parties.

61. The Respondent’s supplementary submissions referred to the Respondent having obtained the sound recording of the Applicant’s cross-examination and provided a transcription of the relevant portions of the evidence, including the following questions by Ms Bromwich and answers by the Applicant:

“Question: …I don’t think I need to go into a lot of detail about this next bit, but what it says is that [the victim] said “You are not respecting my boundaries, this is not what I want”, and it was after she said this that you placed your hand down her dress, uh, between her bra and breast, that you started kissing and biting her neck, uh, and that, and then you kneeled in front of the floor, uh, in front of her, but then you were trying to pull, then you were pull-grabbing her dress and bra and pulling them down.

Answer: No. That wasn’t, that wasn’t what was happening, I knelt down in front of her cos at that point I think, um our friend was already downstairs, …I was trying to beg her, cos I could see on her face she was already upset…I don’t want her to leave whilst being upset, ... it was why I knelt down, begging her, not trying to pull her skirt, probably she got the perspective wrong in that aspect.

Q: So is it your evidence that you pled guilty to something that wasn’t true?

A: …I pleaded guilty cos, I, don’t want to go down the line of trying to defend myself of an action I did which I’m not proud of.

I saw all the fact sheet…I said, no, I’m going to plead guilty regardless of whatever is on the fact sheet because at that point…I was disappointed in myself first…because I know I have something which is out of the line, something which, yeah, something which I would never do. That’s why I pleaded guilty to everything. I don’t want to seem I’m trying to defend of my action. I don’t want to defend anything, I just want to openly plead guilty. Yes, whatever has been said there, I agree to everything. I want to take the full fall for it.

Q: So, if I understand you correctly, your evidence is, the conduct you were found guilty of, um, you can’t really speak to any of it because your evidence today is that that’s not actually what happened. Is that a fair summary?

A: I would, I would say some of it like the ones you mentioned after me kneeling down and stated that I was trying to pull her skirt which in my side, that wasn’t was what happening, I saw it but…like I said, I to me then , I think it was nothing, I don’t feel it’s right for me to try and defend myself at that point in time…So, I just want to take the fall and plead guilty to the action….I will plead guilty to whatever has been levelled against me.”

62. In the Applicant’s supplementary submissions, his legal representative did not contest the transcription of the Applicant’s evidence, that relevantly included the above, and submitted that the “inconsistency and the purported or alleged lack of insight which the respondent solicitor seeks to find in the applicant’s evidence at the tribunal is grossly unfounded…”

63. The Tribunal is satisfied that the Applicant gave evidence during cross-examination as set out above.

Does the Applicant pose a risk to the safety of children?

64. The Tribunal’s approach to fact finding was set out in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523, after discussing M v M (1988) 166 CLR 69, as (at [33]):

Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

65. This approach was confirmed by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 at [34]-[35].

66. The Tribunal begins by presuming the Applicant poses a risk to the safety of children and the Applicant must then prove he does not pose a risk to the safety of children: see s 28(7). Section 5B of the Act defines risk to the safety of children to be “a real and appreciable risk”. If the Applicant does not discharge his onus, the Tribunal cannot grant an enabling order.

67. An enabling order cannot be subject to conditions and the grant of such an order would permit the Applicant to potentially engage in a range of child related work. As a consequence, the assessment of risk the Tribunal is to perform is to be considered in the context of all relevant child related work.

Consideration of s 30(1) criteria

(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

68. The Tribunal finds that the Disqualifying Offence is at least in the middle of the range of objective seriousness, and this is consistent with the view taken by the Magistrate in sentencing the Applicant for the offence.

69. The Tribunal has had regard to the findings of the Magistrate in sentencing the Applicant and accepts the following:

• That the Applicant used force against the victim to get his way and that his conduct can be characterised as “deplorable behaviour”.

• Whilst there was only one Disqualifying Offence, it involved a series of acts against the victim and in circumstances where all of the Applicant’s conduct was non-consensual and constituted an “act of violence”.

• That the Magistrate was satisfied that, notwithstanding the Applicant’s prior good record, the Applicant’s conduct in relation to the Disqualifying Offence crossed the s 5 threshold, and required a gaol sentence to be imposed, albeit in the form of an Intensive Correction Order.

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

70. The Disqualifying Offence occurred on 27 October 2022, approximately two years and three months ago. The Tribunal is satisfied that there is no evidence of any other inappropriate conduct by the Applicant since that time. However, this must be balanced against the Applicant’s Intensive Correction Order in relation to the offence having only expired on 21 August 2024, less than five months ago.

71. Whilst the Applicant relied on three letters of support in these proceedings, each of these letters dated from December 2022, just two months after the commission of the Disqualifying Offence and were relied upon in relation to the sentencing of the Applicant in February 2023.

72. Whilst orders, including directions, were made by this Tribunal on 21 March 2024 to allow the Applicant the opportunity to file further material or evidence in these proceedings, no recent character evidence was adduced on his behalf, and no updates to the letters of support were provided. On this basis, no weight can be given to the letters of support in relation to the Applicant’s conduct after December 2022 and there was no further character evidence available for the subsequent period.

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

73. The Applicant was aged 25 at the time of the Disqualifying Offence.

(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,

74. The victim was aged 21 at the time of the commission of the Disqualifying Offence.

75. The Tribunal accepts the Respondent’s submission, that whilst there were no inherent features in the relationship between the victim and the Applicant such that the victim was particularly vulnerable to the Applicant, the circumstances of the offence indicate that the Applicant took advantage of the situation to perpetuate the offence, including driving the Applicant to his home instead of to the agreed destination, and once inside his home, using force to prevent the victim’s attempts to resist him.

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

76. The Applicant was four years older than the victim at the time of the offence. The two had known each other prior to the commission of the Disqualifying Offence. There is reference in the Sentencing Assessment Report that the Applicant justified his offending by thinking he had already formed a connection with the victim from previous social interactions and a submission was made during the sentencing proceedings that the victim was a young girl that the Applicant had been going out with. The Magistrate found that the victim thought that she and the Applicant were “friends”.

77. In cross-examination before the Tribunal, the Applicant made reference to his belief that there had been “intimacy before” between himself and the victim. When asked what this involved, he said that they had had a few drinks and just talked. Following further questions from Ms Bromwich, the Applicant acknowledged that there was nothing romantic between him and the victim and that he had crossed the line with her.

78. In submissions made on behalf of the Applicant, numerous references were made to the “mistake” made by the Applicant in relation to the commission of the Disqualifying Offence. The Tribunal has regard to the finding of the Magistrate that there was no mistake by the Applicant. It is evident that there was no romantic relationship between the Applicant and the victim, and the Applicant knew that she was not consenting to his actions, and tried to initiate sexual contact with her, notwithstanding her protests and attempts to resist. As found by the Magistrate, the victim thought she was a friend of the Applicant, and the Applicant betrayed that trust.

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

79. Both the Applicant and the victim were adults within the meaning of the Act. It was conceded on behalf of the Respondent that there is no evidence to suggest that the Applicant at any time thought that the victim was, or might be, a child and this is accepted by the Tribunal.

(g) the person’s present age,

80. The Applicant is currently aged 27. It was conceded by the Respondent that the Applicant is relatively young and potentially capable of reform and rehabilitation, and this is accepted by the Tribunal.

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

81. Other than the Disqualifying Offence, the Applicant has no criminal history in either Australia or in his country of origin. As referred to above, the Disqualifying Offence is at least in the middle of the range of objective seriousness. The Applicant has not committed any further offences since the Disqualifying Offence, including any traffic offences.

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

82. As previously referred to, the Sentencing Assessment Report indicated that Community Corrections overrode the Applicant’s overall risk of reoffending from “Low” risk and as of 16 February 2022, the Applicant’s overall risk of reoffending was assessed as “T2/Medium”. The Report indicated that if the Court made a supervised order, Community Corrections would supervise the Applicant at the “T2/Medium” supervision level of the Service Delivery Standards and that a supervision plan would be implement that included referral of the Applicant to a Corrective Services psychologist and the completion of cognitive behavioural therapy-based intervention exercises.

83. Having regard to the Applicant’s evidence, the Tribunal is not satisfied that following the imposition of the Intensive Correction Order that the Applicant was referred to a Corrective Services psychologist or that any dynamic risk assessments were undertaken. Similarly, the Tribunal is not satisfied that the Applicant undertook or completed any cognitive behavioural therapy-based intervention exercises as recommended in the Sentencing Assessment Report.

84. The Tribunal accepts that the Applicant successfully completed six weeks of an eight-week Positive Lifestyle Program, and that this was taken into account by the Magistrate in sentencing the Applicant for the Disqualifying Offence. There is also a reference in the letter from the NSW Court Chaplains Association that the Applicant had engaged with a psychologist around the time of being charge in order to assist him though that period. However, no report was before the Tribunal in relation to that engagement.

85. It is also accepted by the Tribunal that the Applicant completed six sessions of General Counselling in June 2023 as evidenced by the Certificate of Completion provided by him. However, no report or further records were provided in relation to that counselling.

86. The Applicant’s evidence was that as a result of his participation in the courses he had undertaken he was able to control himself more and that similar incidents were “definitely” not going to happen again. He stated that he now had a better understanding of the importance of consent. This however must be viewed in the context of the Magistrate’s finding that there was nothing in the Facts Sheet for the Disqualifying Offence that would suggest that there was any issue about consent and that the victim had made it very clear that she was not consenting to the Applicant’s actions.

87. Further, the Applicant gave evidence that he had understood the nature of consent at the time of the commission of the Disqualifying Offence and acknowledged that the victim had told him several times that she was not consenting. When asked in cross-examination why he had committed the offence, the Applicant was unable to provide reasons and said that he did not understand why he did what he did.

82. The Applicant clearly accepted culpability for the commission of the Disqualifying Offence through his early plea of guilty before the Court and his acceptance of the Facts Sheet at his sentence. However, it appears from his evidence in cross-examination that he believes that the victim misconstrued his actions after he knelt on the ground in front of her and he gave evidence that he was not pulling her skirt at this time but begging her as she knew she was upset. The Tribunal accepts the specific findings made by the Magistrate about this part of the Applicant’s conduct, which includes further sexual touching of the victim by the Applicant and acts of force against her.

83. It is difficult for the Tribunal to reconcile this portion of the Applicant’s evidence with the other evidence before us, particularly when the Applicant went on to give further evidence that there was nothing in the Facts Sheet that he did not agree with. However, in circumstances where at the time of the Tribunal hearing, the Applicant was unable to verbalise the reasons for his offending behaviour, and appeared not to accept all of the specific findings by the Magistrate, it would seem that that the Applicant continues to lack insight into his offending behaviour and has not yet accepted full responsibility for all of his conduct.

84. The above matters, taken together with the previous assessment carried out by Corrective Services, leads the Tribunal to find that the risk of the Applicant reoffending remains a real risk. Further, given the relatively limited time since the commission of the Disqualifying Offence and in the absence of the Applicant having undertaken the interventions recommended the Sentencing Assessment Report, it cannot be discounted that the risk of the Applicant reoffending remains at a medium level.

85. Whilst the Disqualifying Offence was committed against an adult, the Applicant’s conduct was opportunistic and involved force and a breach of trust, without regard to the Applicant’s personal boundaries and where he was aware that the victim was not consenting. Should such conduct witnessed by children, it would have a significant impact on them.

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

92. The AVO expired on 21 February 2024. The Intensive Correction Order imposed on the Applicant was current as at the hearing date, and expired on 21 August 2024, less than five months ago.

93. Consequently, no orders are currently in force in relation to the Applicant.

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

94. The Tribunal has had regard to the documentary material provided in this matter, together with the Applicant’s evidence in the proceedings.

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

95. It was conceded by the Respondent that the Applicant provided the Respondent’s legal representative with a full and frank response to the letter of enquiry. The Tribunal accepts this and has had regard to all of the material obtained.

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

96. None were identified.

Conclusion

97. Having regard to the s 30 criteria and all of the available evidence and material, the Tribunal accepts that the Applicant pleaded guilty to the Disqualifying Offence and is remorseful of his offending conduct. Whilst the Applicant has not committed any other offences and there is no evidence of any other bad or inappropriate conduct by the Applicant, either before or after the Disqualifying Offence, the Tribunal has found for the reasons outlined above that there is a real risk of the Applicant reoffending.

98. The Tribunal is satisfied that the Applicant’s offending did not relate to children and there is no evidence whatsoever of any inappropriate conduct by him relating to children. However, the circumstances of the Disqualifying Offence; the relatively short period of time since the commission of that offence and the expiration of the Applicant’s Intensive Correction Order; coupled with the findings in relation to the Applicant’s risk of reoffending, results in the Tribunal not being satisfied that the Applicant has displaced the presumption under s 28(7) of the Act that he poses a risk to the safety of children.

99. Accordingly, for the reasons set out above, the Tribunal is satisfied that the Applicant does pose a risk to the safety of children and that such risk is real and appreciable.

100. In light of this finding, it is not necessary for the Tribunal to consider the matters in s 30(1A) of the Act. However, it is noted that that even if the Tribunal had been satisfied that the Applicant had displaced the statutory presumption and made a positive finding that the Applicant did not currently pose a risk to the safety of children, the Tribunal would not have been satisfied of the matters in s 30(1A) of the Act.

101. In light of the circumstances of the Disqualifying Offence, in particular the forceful and sexual nature of the offending, coupled with the Applicant’s lack of insight and the relative recency of the offending conduct, the Tribunal would not have been satisfied that a reasonable person would allow his or her child to have direct contact with the Applicant that was not directly supervised by another person while the Applicant was engaged in any child-related work.

102. For the reasons set out above, it follows that the Applicant’s application for an enabling order must be refused.

ORDER

103. The application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 is refused.

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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: 17 January 2025