Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EII v Children's Guardian [2021] NSWCATAD 4 Hearing dates: 22 December 2020 Date of orders: 8 January 2021 Decision date: 08 January 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member M Bolt, General Member Decision: The decision of the Children's Guardian made on 27 April 2020 is set aside and in substitution a decision is made that the Children's Guardian grant a Working with Children Check clearance to the applicant. Catchwords: ADMINISTRATIVE LAW – refusal of working with children check clearance – applicant charged with sexual offences as a teenager - acquitted of all charges – factors to be considered – correct and preferable decision Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Crimes Act 1900 (NSW) Cases Cited: BKE v Office of the Children's Guardian [2015] NSWSC 523 DAI v Children's Guardian [2018] NSWCATAD 308 Texts Cited: None Cited Category: Principal judgment Parties: EII (Applicant) Children's Guardian (Respondent) Representation: Counsel: V Hartstein (Respondent) Solicitors: Barraclough Jones & Associates (Applicant) Crown Solicitor (Respondent) File Number(s): 2020/00144144 Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Reasons for decision 1. The applicant EII is a male of 20 years of age. 2. On 1 January 2015, he was charged with two counts of indecently assaulting a person under 16 years of age; one count of sexual intercourse with a person under 10 years and one count of attempt sexual intercourse with a person under 10 years. An interim Apprehended Violence Order (AVO) was enforced to prevent EII's contact with the complainant. 3. The matter was heard in the District Court in 2017 where the charges were amended to two counts of indecently assaulting a person under 16 years of age; three counts of sexual intercourse with a person under 10 years and one count of attempt sexual intercourse with a person under 10 years. The matter was heard by a jury which returned a not guilty verdict on 15 February 2017. 4. The applicant applied to the respondent for a Working with Children check clearance on 14 February 2018 under the Child Protection (Working with Children) Act 2012 ("the CPWWC Act"). The Children's Guardian placed an interim bar on the applicant while a risk assessment was conducted. The clearance was refused pursuant to s18(2) on 27 April 2020 because the Children's Guardian was satisfied that EII posed a real and appreciable risk to the safety of children. 5. The applicant commenced proceedings in this Tribunal on 11 May 2020 seeking a review of that decision under s 27 of the CPWWC Act. 6. The hearing was held on 22 December 2020. The applicant and an expert witness gave evidence. At the conclusion of the hearing of the evidence after a short adjournment we made orders setting aside the respondent's decision and granting a clearance to the applicant. These are the written reasons for the orders which were made. Relevant legislation 1. The object of the CPWWC Act is in s 3 which provides: "3 Object of Act The object of this Act is to protect children— (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances." 1. Section 4 provides: "4 Safety, welfare and well-being of children to be paramount consideration 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." 1. Section 5B provides: "5B Meaning of "risk to the safety of children" A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children." 1. The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. 2. Section 27 provides: "27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. … (4) An applicant must fully disclose to the Tribunal any matters relevant to the application. … (6) (Repealed) (7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section. (8) The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person's employer. (9) A stay order is an order under section 60 of the Administrative Decisions Review Act 1997 that stays or otherwise affects the operation of a decision that is subject to review by the Tribunal under this section. (10) This section does not otherwise affect the operation of Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997." 1. Section 30 provides: "30 Determination of applications and other matters The Tribunal must consider the following in determining an application under this Part— (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that— (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal. (3) (Repealed)". 1. As this is an administrative review of the Children's Guardian's decision to refuse to grant a clearance, s 63 of the Administrative Decisions Review Act 1997 applies. This provides: "63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." Evidence 1. The material before the Tribunal was: 1. The applicant's statement dated 18 August 2020. 2. A psychological assessment report prepared by Ms Katie Martens, Forensic Psychologist. 3. Documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997, including correspondence between the parties regarding EII's application; documents obtained by the Children's Guardian under s 31 of the CPWWC Act, and transcript of day 3 of the hearing of the applicant's trial on 15 February 2017. 4. Respondent's evidence in reply containing documents produced under summons by Ms Martens. 5. Further documents filed by the respondent containing transcripts of Days 1 and 2 of the applicant's trial and documents produced under summons by the NSW Police and the NSW Director of Public Prosecutions. Evidence of conduct 1. It was not in dispute that apart from the criminal charges described above, the applicant has no criminal history. The offences were alleged to have occurred at the home of the applicant's father, where he was living temporarily. The alleged victim was his half-sister, who was 8 years old at the time. The offences were alleged to have occurred between July and November 2015 when the applicant was 15 years old. 2. The applicant denied committing the offences. He commenced a Bachelor of Medical Radiation Science in 2018. He is required to complete practical placements as part of his studies and requested the clearance for this reason. He has deferred his University studies until this matter is resolved. 3. The applicant stated that he had assisted with sport coaching younger children while a teenager and there were no complaints about his conduct. 4. According to the police facts sheet the applicant and his half-sister were living in the same house at the time of the alleged offences. She said the offences occurred in her bedroom or the bedroom of the accused at the family home. She alleged that the offences occurred in the following circumstances. 1. The victim and the applicant were sitting on the lounge playing Playstation when the applicant rubbed the victim's vagina on the outside of her clothing. 2. The victim and the applicant were in the victim's bedroom while their parents were out, they undressed and the applicant attempted to insert his penis into the victim's vagina. 3. The victim and the applicant were in the bedroom, the applicant moved his penis back and forth between the buttocks and vagina of the victim. 4. The victim and the applicant were in a bedroom fully clothed. The applicant kissed the victim's breasts under her clothing. 5. In a bedroom at the family residence, the victim was lying on the bed and the applicant removed her pants, and moved his tongue around the inside of her vagina. 6. The applicant then inserted his fingers into her vagina and moved them around asking "do you like that". 7. In a bedroom at the family residence the applicant inserted his fingers into her vagina and moved them around. 8. In a bedroom at the family residence, while the mother of the victim was in the kitchen cooking dinner the applicant licked and sucked the victim's vagina. 1. In her police interviews the victim said she was scared of the applicant and also scared that she would get into trouble with her mother because she had watched pornography on her ipad with her cousin, who was the same age. 2. Family and Community Services (FACS) records indicated that FACS received reports that the half-sister told her father that she had viewed a porn site on her Ipad and he told her not to go to that site any more. She also said that the applicant had said to her "Its ok if we have sex". Later she told him that she and the applicant "had sex". When her father asked "What is sex?" she replied "humping". She at first said her clothes were on but later said that they were off. 3. The father reported that he spoke to the applicant with the victim present and the applicant denied touching her and became upset. He said that the victim had said to her that "It's OK if we have sex." 4. His daughter was complaining of having pains in her stomach. According to the FACS report the daughter made a number of disclosures of what she had seen on the pornographic website as well as about touching her genital area. She had also said she felt like killing herself. 5. The applicant exercised his right to silence when questioned by police but he did give evidence at the trial. 6. His evidence at trial was that he would bicker with his half-sister but otherwise they had a good relationship. Prior to when they lived in the same house he would see her on every second weekend and one weekday. He said they were only left in the house without a parent if his step mother went to the local shops. This would only be for about ten minutes and only happened two or three times. This was supported by the evidence of the victim's mother at trial. 7. He denied committing any of the conduct with which he was charged. He said that he did not know for certain what she was watching on the Ipad until his father told him. 8. In addressing the jury the concern that the victim showed about her use of the Ipad became an issue as to whether she was reporting what occurred between herself and the applicant or reporting what she viewed on the Ipad. 9. Also during the trial the victim at one point appeared to retract her version of events. At other times she could not recall details of events such as when they occurred, whether her parents were at home and where they occurred. This however could be explained by her age. 10. At the hearing in this Tribunal the applicant said that he did not show his half-sister how to access pornography on the Ipad. He believed that his sister associated him with it because she was trying to avoid punishment. Psychological risk assessment 1. Ms Katie Martens assessed EII on 17 July 2002 via a semi-structured interview. She is a registered psychologist with a Masters in Forensic Psychology and has worked in forensic psychology since 2008, also having experience with adolescents engaging in sexually harmful behaviours. She considered relevant material provided to her including the transcripts of the trial. EII completed a Personality Assessment Inventory (PAI). While she said that the results of the PAI may not accurately depict the entirety of his experience, they showed difficulties with sleep disturbance and loss of energy which could be indicative of depressed mood. However EII denied this at interview. It also suggested a tendency towards being adventurous and impulsive, that he negatively evaluated himself and was particularly self-critical. 2. She considered it was possible that he had experienced depressed mood but did not currently present with symptoms that would warrant diagnosis of clinical psychopathology. 3. She conducted a risk assessment to examine EII's potential to reoffend. She stated that risk assessment with regard to EII was complicated as there was a realistic possibility that he had not engaged in sexual harm. Risk assessment is based on the premise that the behaviour being assessed has occurred at least once. In addition in this case the alleged behaviour should be assessed as the behaviour of a juvenile as he was aged 15 at the time. 4. Ms Marten's evidence was: 1. A relatively small percentage of adolescents commit sexual offences and the base rate for sexual recidivism is low. Only 5% of adolescents who have engaged in sexually harmful behaviour continue to do so following detection or sanction. 2. Adolescent sexual offending was more likely to occur between siblings. 3. The vast majority of adolescents do not reoffend sexually. Most adolescents who have engaged in sexually abusive behaviour do not require intensive intervention. Where an adolescent had offended against a sibling only, it was more likely to be an isolated event. 4. The risk of sexual reoffending reduces significantly for every five years that an individual is in the community offence-free. 5. For these reasons, the predictive weight of the charges of 2015 in relation to current risk are minimal. 6. He did not present with factors typically associated with an increased likelihood of sexual offending. 7. If EII had engaged in the alleged offences, it was her opinion that he presented a low risk of reoffending sexually and if was very unlikely that he would engage in sexually harmful behaviour as an adult. Issues for determination 1. A person whose application for a clearance has been refused may apply to this Tribunal for administrative review of the decision. In determining the review, the Tribunal must bear in mind the objects of the Act and the paramount consideration. It must also consider the matters in s 30. The Tribunal is to decide what the correct and preferable decision is having regard to the material before it. 2. The respondent originally neither consented to nor opposed an order being granted. During the hearing, at the conclusion of the evidence the respondent indicated it did not oppose the application being granted. The factors to be considered under s 30 The seriousness of the offences or any matters that caused a refusal of a clearance 1. The alleged offences as outlined above were serious in nature. Any person who has sexual intercourse with a child who is under the age of 10 years is guilty of an offence under s 66A of the Crimes Act 1900 which carries a maximum penalty of imprisonment for life. Attempting sexual intercourse with a child under the age of 10 years carries a maximum sentence of 25 years (s 66B). Indecent assault (former s 66L) carried a maximum sentence of 5 years. We note that the applicant was acquitted of all offences and the AVO was withdrawn. The period of time since those offences or matters occurred and the conduct of the person since they occurred 1. The offences were alleged to have taken place in 2015. Since that time there have been no offences or misconduct on the part of the applicant. The age of the person at the time the offences or matters occurred 1. The applicant was 15 years old at the time. 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 1. The alleged victim was 8 years old at the time. The difference in age between the victim and the person and the relationship (if any) between the victim and the person 1. There was a seven year difference in their ages. Whether the person knew, or could reasonably have known, that the victim was a child 1. The applicant knew that the alleged victim was a child as she was his half-sister. The person's present age 1. The applicant is currently 20 years old. The seriousness of the person's criminal history and the conduct of the person since the matters occurred 1. The applicant has no criminal history and there are no negative connotations on his conduct. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 1. Assuming for this purpose that the applicant had committed the alleged offences, in the circumstances the risk of any such repeated conduct was viewed as very unlikely by Ms Martens for the reasons stated above. The age of the applicant at the date of the alleged offences is an important factor. It is also relevant that the alleged offences were against a sibling which, if they occurred, makes a reoccurrence more unlikely. 2. We are conscious that some of the information which Ms Martens relied upon in her report was self reported by the applicant. However we gave weight to the thoroughness of her report and her experience with adolescent sexual offenders. Overall we consider that the risk of repetition is low. By the serious nature of the conduct, should there be any such repetition the impact on the child would be severe. Any order of a court or tribunal that is in force in relation to the person 1. There are no orders in force. Any information given by the applicant in, or in relation to, the application 1. The applicant has stated that he needs a clearance in order to complete his University studies. Any relevant information in relation to the person that was obtained in accordance with section 36A 1. This is not applicable. The factors under s 30(1A) of the Act 1. Under s 30(1A) of the CPWWC Act the Tribunal may not make an order which has the effect of enabling a person to work with children in accordance with the Act unless the Tribunal is satisfied 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, and it is in the public interest to make the order. 2. The Tribunal has held that the first part of the test is an objective one. In DAI v Children's Guardian [2018] NSWCATAD 308 it was held (at [91]): "In order to properly consider this test, a "reasonable person" would need to know about the disqualifying offence, the circumstances surrounding the offence, the applicant's entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him." 1. The applicant was acquitted of the offences because the prosecution could not establish the commission of the offences beyond a reasonable doubt. There is no presumption that the applicant poses a risk to children which the applicant must displace. 2. In these proceedings the Tribunal must decide what is the correct and preferable decision having regard to the material before it. The Tribunal's jurisdiction is protective and the Tribunal should have regard to the paramount consideration which is the safety, welfare and wellbeing of children and the need to protect them from child abuse (s 4). 3. In situations where allegations have not been proven to the criminal standard, the Tribunal may still conclude that the circumstances around a particular incident or course of conduct means that the risk of abuse has not been disproven (BKE v Office of the Children's Guardian [2015] NSWSC 523). If there is a lingering doubt or suspicion remaining, this should count against the applicant, although it would not necessarily be fatal to the application. 4. This is a situation where the applicant was charged but acquitted of sexual offences against his half-sister when both were juveniles; the applicant being 15 years old and his half-sister 8 years old. There have been no other charges or concerns about his conduct. The circumstances of the allegations were such that there could be doubts about the child's evidence. They were related to her concerns about getting into trouble for viewing pornography and the opportunities for the various alleged instances to have occurred in the family home seemed slim. This combined with the pyschologist's risk assessment led us to be satisfied that a reasonable person knowing all the relevant information, would allow his or her child to have direct contact with the applicant which was not directly supervised by another person while the applicant was engaged in any child-related work. 5. Having regard to the applicant's age both at the time of the alleged offences and now (having developed from an adolescent to an adult), his desire to undertake studies and obtain employment, and personal history, we were also satisfied that it is in the public interest to make an order granting a clearance. 6. Accordingly we determined that the correct and preferable decision was to set aside the respondent's decision and grant a clearance to the applicant. Orders 1. The decision of the Children's Guardian made on 27 April 2020 is set aside and in substitution a decision is made that the Children's Guardian grant a Working with Children Check clearance to the applicant. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 January 2021