Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FJL v The Children's Guardian [2023] NSWCATAD 65 Hearing dates: 30 November 2022 and 24 February 2023 Date of orders: 21 March 2023 Decision date: 21 March 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: A Starke, Senior Member K Stubbs, General Member Decision: (1) The decision of the Children's Guardian dated 26 September 2022 to refuse to grant the applicant a working with children check clearance is affirmed. (2) The decision of the Children's Guardian dated 11 November 2021 to impose an interim bar on the applicant is affirmed. Catchwords: ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — Risk assessment by respondent due to Schedule 1 matters — Applicant charged but not convicted of various sexual assault offences — Whether the applicant poses a risk to the safety of children — Relevance of vulnerability of victims to assessment of risk 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) Criminal Code Act 1899 (Qld) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BHY v Children's Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 111 BKE v Office of Children's Guardian [2015] NSWSC 523 Briginshaw v Briginshaw (1938) 60 CLR 336 CHB v Children's Guardian [2016] NSWCATAD 214 Children's Guardian v CKF [2017] NSWSC 893 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Commissioner for Children and Young People v IK [2005] NSWSC 1136 CRG v Children's Guardian [2017] NSWCATAD 295 CTE v Children's Guardian [2018] NSWCATAD 28 CXZ v Children's Guardian [2020] NSWCA 338 CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 DAI v Children's Guardian [2017] NSWCATAD 308 Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 DYH v Public Guardian [2021] NSWCATAD 136 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 McDonald v Guardianship and Administration Board [1993] VR 521 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Smith v Commissioner of Police [2014] NSWCATAD 184 Tilley v Children's Guardian [2017] NSWCA 174 VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 YG & GG v Minister for Community Services [2002] NSWCA 247 ZZ v Secretary, Department of Justice [2013] VSC 267 Texts Cited: None cited Category: Principal judgment Parties: FJL (Applicant) Children's Guardian (Respondent) Representation: Counsel: A Zheng (Respondent) Solicitors: Applicant (Self-represented) Crown Solicitor (Respondent) File Number(s): 2022/00136879 Publication restriction: With the exception of expert witnesses and officers of government agencies, the disclosure of the name of the applicant or any complainant or alleged victim mentioned in these proceedings is prohibited. This order was made on 16 June 2022 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. Introduction 1. This is an application for administrative review of two matters. The application initially sought administrative review under s 27(3) of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act") of the decision of the Children's Guardian on 11 November 2021 to impose an interim bar on the applicant pursuant to s 17 of the Act ("Interim Bar Decision"). By consent, and by the Tribunal's Order made on 13 October 2022, the application was amended to also seek administrative review pursuant to s 27(1) of the Act of the decision of the Children's Guardian made on 26 September 2022 to refuse to grant a working with children check clearance to the applicant on the grounds that he poses a risk to the safety of children ("Refusal Decision"). 2. For completeness, in terms of the procedural history of this matter, we note that following the issue of its Refusal Decision, the Interim Bar ceased to have effect and the respondent sought to have that part of the amended application seeking administrative review of the Interim Bar Decision dismissed. The Tribunal heard the application for dismissal on 27 October 2022 and handed down its decision on that date. Senior Member Mulvey found that the application for review of the Interim Bar Decision was not lacking in substance, and was not misconceived or frivolous. He found that there is utility and a practical effect in having the Tribunal consider the application to review the Interim Bar Decision. Pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"), the Tribunal decided the application for review of the Interim Bar Decision should not be dismissed, and ordered accordingly. 3. The applicant had applied for clearance under s 13 of the Act on 21 October 2021. Upon receiving that application, the Children's Guardian undertook certain checks and identified that criminal proceedings had been commenced against the applicant (refer to clause 1(1)(b) of Schedule 1 of the Act). The fact that the applicant had been charged, but not convicted, of charges which fell into clause 1 of Schedule 2 of the Act triggered the risk assessment requirement. 4. The Children's Guardian determined that the record of criminal proceedings commenced against the applicant indicated there may be a risk to the safety of children if he engaged in child-related work, and thus determined that the applicant was subject to an interim bar under s 17(1) of the Act while the assessment took place (the Interim Bar Decision). 5. After completing its risk assessment, the Children's Guardian notified the applicant in writing on 26 September 2022 that pursuant to s 18(2) of the Act his application for clearance was refused because the Children's Guardian was satisfied that he posed a risk to the safety of children. 6. The interim bar imposed upon the applicant ceased to have any operative effect on 26 September 2022 when the respondent issued its Refusal Decision. 7. The respondent opposed the application for administrative review and sought orders to have the Refusal Decision and the Interim Bar Decision affirmed. 8. The applicant was not convicted with respect to any of the charges against him. He maintained that he was innocent, and a victim of false allegations. He objected to the Interim Bar Decision and the Refusal Decision, arguing that he presents no risk to the safety of children, that a reasonable person would allow their child to have direct contact with him (without being directly supervised by another person), and that it is in the public interest to grant him a clearance. 9. In undertaking this administrative review, there is no presumption that the applicant poses a risk to the safety of children. Neither party bears the onus of proof. However, the applicant has a statutory mandatory obligation under s 27(4) of the Act to fully disclose to the Tribunal any matters relevant to the application. 10. On the evidence before us, we have decided that the correct and preferable decision is to affirm the Refusal Decision and the Interim Bar Decision, for the following reasons. Prohibition order 1. Due to the sensitive nature of these proceedings and to protect against the identity of an alleged victim being disclosed, an order was made on 16 June 2022 pursuant to s 64(1)(a) of the NCAT Act that the disclosure of the name of the applicant or any complainant or alleged victim is prohibited. To give effect to this order, the pseudonym 'FJL' has been used for the applicant's name. Precise dates on which criminal proceedings took place have not been disclosed, to protect the identity of the applicant and any complainant or alleged victim. Likewise, precise geographic locations have not been disclosed. Material and evidence before the Tribunal 1. The following material was filed on behalf of the applicant: 1. Application for administrative review filed on 12 May 2021 annexing a copy of the respondent's Interim Bar Decision, which application was subsequently amended by consent to also include an application for review of the Refusal Decision; 2. Submissions dated 29 June 2022 responding to the respondent's written outline of submissions in relation to the Interim Bar Decision ("Written Submissions"). 1. The following material was filed on behalf of the respondent: 1. Documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 on 16 June 2022 (marked "Exhibit R1"); 2. Further documents filed by the respondent on 29 June 2022 (marked "Exhibit R2"); 3. Supplementary documents filed by the respondent on 18 August 2022 (marked "Exhibit R3"); 4. Additional documents filed on 9 November 2022 (marked "Exhibit R4"); 5. Further supplementary documents filed on 22 November 2022 (marked "Exhibit R5"); 6. Submissions – Refusal Decision filed on 22 November 2022; 7. Further additional documents filed on 31 January 2023 (marked "Exhibit R6"). Oral evidence 1. The applicant gave oral evidence and was cross-examined during the hearing. Oral submissions 1. Oral submissions were made by the applicant and on behalf of the respondent. Background and sequence of events resulting in the Refusal Decision 1. The applicant is 34 years of age and was admitted as a lawyer of the Supreme Court of New South Wales in 2015. His oral evidence was that he has a current practising certificate, that he is admitted to the High Court of Australia, and that he is the principal and sole practitioner in an incorporated legal practice. He said that his area of speciality is general commercial law. 2. According to the applicant's Written Submission, he is now in a stable, committed relationship, lives with his partner aged 32 and is an uncle to a baby niece. 3. Also according to his Written Submission, the applicant has pursued interests in language (French and Russian), music (piano and guitar), art, philosophy, history, business, economics, politics and travel (over 20 countries). He has obtained his pilot's licence and is a qualified chef. 4. As noted above, the applicant applied for clearance under s 13 of the Act on 21 October 2021. 5. The applicant sought clearance in anticipation of future work and volunteer work. His oral evidence at the hearing was that he felt compelled to give back to the community and that his employment prospects were heavily restricted without having a clearance. His Written Submission to the Tribunal, stated that he had ambitions to undertake a philanthropic endeavour aimed at helping troubled youths find direction in life and their career. 6. The respondent's notes in relation to the application for clearance recorded that the applicant had applied for a clearance in the context of the education sector as, at the time, he was seeking to become legal counsel for a high school. 7. Upon receiving the application for clearance and identifying that criminal proceedings had been commenced against the applicant, the Children's Guardian was obliged to undertake a risk assessment, guided by the provisions of s 15(4) of the Act, so as to determine whether the applicant posed a risk to the safety of children. Charges and proceedings precipitating the respondent's risk assessment 1. The charges laid against the applicant concerned allegations made by three separate complainants about his conduct and behaviour in three separate incidents occurring in 2008, 2014 and 2017. The charges are described in more detail under the heading "Description of the trigger offences" in these reasons. 2. Criminal proceedings took place in relation to each allegation over a period from 2009 to 2020 and concerned charges of: 1. 2 counts of rape under s 349(1) of the Criminal Code Act 1899 (Qld) following an incident alleged to have occurred in April 2008, with the applicant being found not guilty in the District Court in Queensland in November 2009 ("first trigger offence"); 2. two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW) ("the Crimes Act") and three counts of assault with act of indecency under s 61L of the Crimes Act following an incident alleged to have occurred in December 2014 ("second trigger offence"). He was committed for hearing three times. The first and second jury trials resulted in 'hung juries' and the applicant was not convicted. In light of the previous 'hung jury' results, the matter did not proceed to a third trial. 3. two counts of sexual intercourse without consent under s 61I of the Crimes Act following an incident alleged to have occurred in May 2017, with the applicant being found not guilty in the Downing Centre District Court in September 2018 ("third trigger offence"). In relation to the alleged incident, the applicant was also charged with two counts of aggravated sexual assault – deprive liberty under s 61J of the Crimes Act. Those charges were subsequently withdrawn. Respondent's notification of interim bar and risk assessment 1. The applicant was notified in writing of the interim bar and risk assessment on 11 November 2021 and was invited to provide further information to inform the risk assessment. 2. The Interim Bar Decision advised the applicant (via the "Frequently Asked Questions" section) that, when undertaking an assessment, the Children's Guardian does not limit its consideration to offences involving children because some offences or behaviours have the potential to impact upon children in the community or home. 3. The applicant provided a submission dated 1 December 2021 to the Children's Guardian in support of his application for clearance, setting out his reasons for requiring a clearance. Respondent's refusal to grant a clearance 1. The applicant was notified on 22 August 2022 that the Children's Guardian proposed to refuse his application for clearance and he was given a further opportunity to submit further information for consideration. The applicant elected to not provide further information. 2. The Refusal Decision issued on 26 September 2022 set out the reasons why, after completion of the risk assessment, the Children's Guardian was satisfied that the applicant poses a risk to the safety of children and refused to grant a clearance. Description of the trigger offences First trigger offence 1. At the time of the first trigger offence, the complainant was slightly older than the applicant, having turned 21 around two months before the incident. The applicant had only just turned 19. The complainant and applicant were work colleagues. 2. The material before this Tribunal about the first trigger offence is sparse. No transcript of proceedings or witness statements were produced. A report made by Queensland police contains a summary of both the complainant's account and the defendant's account of the incident. However, no statement directly made by either the complainant or the defendant around the time of the alleged incident was put before this Tribunal. The police summary stated that a friend corroborated the complainant's version of what occurred. A statement from a medical practitioner who examined the complainant in the afternoon on the same day of the alleged incident corroborated the complainant's account insofar as it confirmed the allegation that FJL had performed vaginal penetration on her with his digits and penis. The medical statement produced is, however, incomplete. 3. The complainant's version as set out in the police summary is that on the day in question, she had drinks with friends after work and then went to a nightclub. FJL attended both the drinks and the nightclub. At some point in time, after 1.50am, the complainant went to her room. FJL subsequently entered her room and sat on her bed. The complainant told police she felt uncomfortable as she had started undressing when FJL walked in. He then left before she went to bed alone. Later, though the precise time is not noted, the complainant woke from her sleep to find someone lying close behind her in her bed. While still half asleep, the complainant felt someone touching her vagina and breathing heavily, and then she felt the person remove her underwear and penetrate her vaginally with his penis. She rolled over and saw that the person was FJL. The complainant sat up, wrapped her doona around her and immediately left the room. She went to the room of a friend and waited for him until 9.30am. That friend then took the complainant to the nursing station. The complainant stated that at no time did she consent to the sexual acts with FJL. 4. According to the police summary, the applicant said he had been drinking with the complainant and friends. At some point in time, he was in the complainant's room and left to change into a pair of boxers. He then went back to the complainant's room and climbed into bed with her. The detail around this development and the reason why he ended up in the complainant's bed is not explained in the police summary. He told police he fell asleep and when he awoke his hand was adjacent to her vagina. He started touching her vagina and digitally penetrated her with his finger before penetrating her with his penis and ejaculating. 5. The fact that the sexual activity occurred is not in question. The issue is the question of consent. The applicant said that he and the complainant did not say a word to each other, and he thought the complainant knew it was him. On his version of what took place, the complainant was pushing back into him and looked over her shoulder at him. The police summary states that the applicant acknowledged that it was possible "the complainant was too drunk and sleepy to consent to sex or know that it was him". Second trigger offence 1. At the time of the second trigger offence, the applicant was 26 and the complainant had turned 19 around two months before meeting the applicant. They had briefly engaged in online messaging before meeting for the first time late at night. 2. The material put before this Tribunal relevantly included a transcript of the complainant's recorded interview with police on the day following the incident during a 'walk-through' of the area where the offence was alleged to have occurred; the complainant's witness statement made two days after the incident; a transcript of the police interview with JFL recorded around two weeks after the alleged incident; an undated written statement made by JFL in relation to the offence; statements of evidence given by the complainant's mother and stepbrother and various police officers; the Forensic Lab Summary of an examination of the complainant and the expert certificate of the medical practitioner who examined the complainant; the police Facts Sheet; transcripts of the first trial in the Penrith District Court during March 2020 (without transcript of the summing up on the final hearing day); and transcripts of the second trial in the Katoomba District Court during December 2020. 3. According to the police narrative, the complainant and the applicant met on an online dating App in November 2014. On 30 November 2014 they exchanged mobile phone numbers and the applicant suggested that they meet as he said he was living nearby. The complainant asked for a photo of him, and he asked for a "sexy pic" from her which she refused to give. The next day, they agreed to meet after the complainant had been to the gym, and have ice cream at McDonalds. The applicant drove to the complainant's house at around 10.30pm. The complainant entered the applicant's car and, after the idea of having ice cream was generally abandoned, he drove to a car parking area near a river. They engaged in sexual acts which included the complainant manually rubbing the applicant's penis and the applicant digitally penetrating the complainant's vagina. After the sexual encounter, the applicant drove the complainant home. 4. Again, the fact that the sexual acts occurred is not in question. However, the complainant's version of events is that the applicant chose the location for them to chat after deciding not to go for ice cream and that she was coerced into engaging in the sexual acts with the applicant after he threatened to leave her at the river car park with no means of getting home. The applicant contended that the complainant dictated where they went and that the sexual acts were not only consensual but were in fact instigated by the complainant. Third trigger offence 1. At the time of the alleged third trigger offence, the applicant was 29 and the complainant had turned 19 on the day of the alleged offence. They had not previously met (online or in person) and so were strangers when they encountered each other for the first time late at night, at around 11pm or midnight, on a street in close vicinity to The Rocks area in Sydney. 2. The material produced before this Tribunal included the Crown case statement which contained a summary of the complainant's account of the incident and a summary of JFL's statement to police; the Crown closing address; the defence dot points; transcript of the trial in the Downing Centre District Court in September 2018 and the draft transcript of the trial judge's summing up to the jury. There is no written statement of the complainant however she gave evidence at the criminal hearing which took place approximately 17 months after the alleged incident. The applicant did not give evidence at the trial and was not cross-examined. While he participated in a recorded interview with police, neither the recording nor the transcript of the interview is before this Tribunal. 3. The complainant's evidence in the criminal trial was that she had been drinking with her friends before proceeding to a well-known hotel in The Rocks at around 10pm. She was refused entry to the hotel because of her level of intoxication, however her friends were admitted. Whilst walking around the general area of The Rocks, the complainant met the applicant and asked if he knew where the closest bus stop was. The applicant invited her to his home where it was alleged he grabbed her arm and pulled her into his house. The applicant then proceeded to have intercourse with her. The complainant attempted to leave at which point the applicant threw her back on the bed and engaged in penile/vaginal intercourse with her again. After the second episode of sexual intercourse, the complainant ran out of the house in fear. She became lost, called her friends and sent a screenshot to them of her location. When she met up with her friends, she claimed that she had been raped. 4. The complainant's friends gave evidence at the hearing, describing her distressed state when they located her. 5. The applicant asserted that the complainant approached him and started a conversation. He said she appeared to him to be sober, having walked around and listened to music for hours after being refused entry to a hotel. He asserted that he and the complainant engaged in consensual sexual intercourse. On his version of events, he politely asked her to leave his residence after they had sex, whereupon she became irate and stormed out, slamming the door. The Children's Guardian's Refusal Decision 1. The Children's Guardian regards persistent sexual offending towards vulnerable people as behaviour that poses a risk to the safety of children. The Children's Guardian noted in its Refusal Decision that child-related employment frequently includes circumstances where children are in the care of an adult who is significantly older than them and the child is generally less physically and cognitively able. 2. Its reasoning for finding that the applicant poses a risk to the safety of children is broadly summarised below: 1. due to the volume and similarity of complaints by three separate women over 9 years (from 2008 to 2017) and notwithstanding the applicant was not convicted, it is reasonably likely that the applicant engaged in the inappropriate behaviours alleged; 2. the similarity of complaints indicated a concerning and escalating pattern of sexually deviant behaviour by the applicant to engage with young women for the purpose of sexual contact; 3. over the period of 9 years, the age difference between the complainants and the applicant increased; 4. each of the complainants was vulnerable in their respective situations; 5. there was no evidence that the applicant had sought support to address the behaviours complained of or to develop strategies to prevent their recurrence; 6. there was no information to show that the applicant had insight into the impact of his alleged behaviour upon any of the complainants; 7. the applicant's engagement with psychological support was to assist with his own wellbeing, rather than to address the alleged behaviours; 8. the applicant's unwillingness to address the alleged past conduct or express remorse for any of the incidents support the concern that his behaviour will be repeated. Applicable legislation and legal principles Protective jurisdiction of the Act 1. The protective jurisdiction of the Act is plainly evident from its stated object as set out in s 3: 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. The paramount consideration in the operation of the Act is set out in s 4: 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. Having regard to that paramount consideration, the jurisdiction of the Tribunal under s 27 of the Act is protective, and not punitive, in nature: DAI v Children's Guardian [2017] NSWCATAD 308 at [8] (DAI); BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] (BJB); AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34] (AYU); Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The object of the Act is not to impose additional punishment on a person such as the applicant, but to eliminate possible risks to children: CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 (CYY) at [26]; AYU at [34]. The task for the Tribunal in determining the "correct and preferable" decision 1. The Tribunal must determine the "correct and preferable" decision (whether the applicant poses a real and appreciable risk to the safety of children) with regard to the material before it, including material that may not have been before the respondent, and the applicable law: s 63(1) of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act"); YG & GG v Minister for Community Services [2002] NSWCA 247 at [25], per Hodgson JA (with whom Foster and Brownie A-JJA agreed); applied in BHY v Children's Guardian [2015] NSWCATAD 91 at [14]. 2. Subsection 63(2) of the ADR Act allows the Tribunal, for the purpose of determining an application, to 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, understanding the effect of ss 63(1) and 63(2) of the ADR Act, the Tribunal must not simply "stand in the shoes" of an administrator. As explained in DYH v Public Guardian [2021] NSWCATAD 136 at [21], the Tribunal must conduct its review without any presumption as to the correctness of an administrator's decision: "The effect of these two subsections is sometimes characterised as the Tribunal being required to "stand in the shoes" of the administrator who made the decision. But that is not entirely accurate. I must conduct this review without any presumption as to the correctness of the decision: McDonald v Guardianship and Administration Board [1993] VR 521 at [530] and I am required to decide what the correct and preferable decision is having regard to the material before me. It is clear that that may include material which postdates the making of the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25], Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 at 77." 1. The Tribunal may make orders that include an order to affirm the Refusal Decision or vary it, or set it aside and make a decision in substitution, or set it aside and remit the matter to the respondent for reconsideration: s 63(3) of the ADR Act. With respect to the Interim Bar Decision, the Tribunal can set it aside and make a new decision, or affirm or vary it. 2. In determining the "correct and preferable" decision with respect to the Refusal Decision, the Tribunal's task is to decide whether the applicant poses a risk to the safety of children: s 18(2) of the Act. 3. In determining the "correct and preferable" decision with respect to the Interim Bar Decision, the Tribunal's task is to decide whether it is likely that the applicant poses a risk to the safety of children: s 17(2) of the Act. Definition of "children" and the meaning of "risk to the safety of children" 1. "Children" is defined in s 5(1) of the Act to mean "persons under the age of 18 years". 2. The meaning of "risk to the safety of children" is defined in s 5B of the Act to mean a "real and appreciable risk to the safety of children." The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]: "One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word 'risk' with the words that follow, namely 'to the safety of children'…" 1. His Honour's consideration of the meaning of risk was cited with approval in a number of cases before the Tribunal and the NSW Supreme Court: CTE v Children's Guardian [2018] NSWCATAD 28 at [30]; BKE v Office of Children's Guardian [2015] NSWSC 523 (BKE) at [26] and AYU at [39]. Ultimately, the Tribunal must consider whether a clearance, if granted, will create a "real and not fanciful" risk to the safety of children: CXZ v Children's Guardian [2020] NSWCA 338 (CXZ) per Basten JA at [26]. Child-related work requires a WWCC clearance 1. The meaning of "child-related work" is set out in s 6 of the Act. Work that is referred to in s 6(2) of the Act that involves direct contact by a worker with a child or children and that contact is a usual part of and more than incidental to the work is defined as "child-related work" for the purposes of the Act. Working as an in-house lawyer in the education sector or in a volunteer capacity with sporting or recreational bodies as the applicant has indicated he desires to do, clearly involves "child-related work", and would require him to have a clearance. Requirement for the Children's Guardian to be satisfied that a person is not a risk to the safety of children 1. Under s 18(2) of the Act, the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 of the Act unless it is satisfied that the person poses a risk to the safety of children. Mandatory risk assessment triggered by Schedule 1 matters 1. A person is subject to an assessment requirement under the Act if any of the matters specified in Schedule 1 of the Act apply to the person: s 14 of the Act. In this matter, the applicant was charged with the offences discussed above and accordingly, it was necessary for the Children's Guardian to undertake a risk assessment, guided by the provisions of s 15(4) of the Act, to determine whether the applicant posed a risk to the safety of children. 2. Further, under s 15(4A) of the Act, the Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless it is satisfied that the 'reasonable person' and 'public interest' tests are met: (a) 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, and (b) it is in the public interest to make the determination. Neither party bears an onus of proof in these proceedings 1. Neither the applicant nor the respondent bears an onus of proof in relation to the application: BJB at [32]. The approach to fact finding and the assessment of risk 1. In recognition of the protective jurisdiction of the Act and the paramount consideration being the safety, welfare and well-being of children, the Tribunal is bound to follow the decision in BKE at [33] when assessing risk: "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." 1. The standard to which the Tribunal must be satisfied before making a positive finding in relation to an allegation is the civil standard, that is on the balance of probabilities, and not the criminal standard: Office of the Children's Guardian v CFW [2016] NSWSC 1406 (CFW) at [14]-[17], subject to the need to have regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). The Briginshaw principle can broadly be described as a standard of satisfaction to be reached where serious allegations are concerned. Put simply, serious allegations with serious consequences require more compelling evidence for the decision maker to reach the necessary state of reasonable satisfaction that the facts in dispute are more likely than not to exist. 2. The approach to assessing risk based on unproven allegations as explained in BKE at [33] was approved in CXZ per Simpson AJA at [57]: "The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. [emphasis in original] If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children." 1. Thus, relying upon the analysis in CXZ at [51], many cases will not lend themselves to definitive factual determination. Where an allegation is neither "well founded" nor "groundless", the Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations, the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ at [53]. 2. The protective jurisdiction of the Act was emphasised in CXZ per Simpson AJA at [58]: "It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children." 1. A positive finding by the Tribunal that alleged conduct has taken place will generally be determinative of an application: CFW at [14]-[15], per Justice Harrison: "The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless"." 1. Where the tribunal is unable to make a positive finding, if there is nonetheless a "lingering doubt or suspicion" which remains then such doubt or suspicion does not count against an applicant for a clearance: Children's Guardian v CKF [2017] NSWSC 893 (CKF) at [56], per Davies J. Equally, such doubt or suspicion is not fatal. Rather, it is simply a matter to be considered when all of the evidence is weighed up in assessing whether the applicant poses a risk to the safety of children: CKF at [56]. 2. In determining the application, the Tribunal is required to consider "the totality of the evidence": BKE at [28] citing The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the "cumulative effect" of the matters before it: CYY at [69]-[71]. Mandatory criteria for determining an application 1. In determining this application, the Tribunal must consider the matters set out in s 30(1) as set out below: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part— (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. 1. In addition, if the Tribunal is considering making an order enabling an applicant to work with children, it must then consider the two-part test set out in s 30(1A) of the Act: (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that— (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. First limb of the two-part test under s 30(1A)(a) - the "reasonable person" test 1. The first limb of the two-part test is known as the "reasonable person" test. It requires the application of an objective standard based upon the views of the "reasonable person". It assumes that the "reasonable person" is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children's Guardian [2016] NSWCATAD 214 at [127]; CYY at [26]. 2. The legislation in Victoria contains provisions similar to those in s 30(1A) of the Act. In VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 at [36] (VQB), the Tribunal held that an objective test was called for by the legislation: "… 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." 1. The reasonable person approach taken in VQB was endorsed in NSW in CRG v Children's Guardian [2017] NSWCATAD 295 at [85] and DAI at [90]. In DAI at [91], the Tribunal said: "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." Second limb of the two-part test under s 30(1)(b) - the "public interest" test 1. The second limb of the two-part test is referred to as the "public interest" test. The notion of "public interest" was addressed by the High Court of Australia in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 in which French CJ, Gummow and Crennan JJ said at [20]: "The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question." 1. Accordingly, in proceedings under the Act, the "public interest" must be considered in light of the paramount purpose of the Act, namely, to ensure the protection of children from sexual or physical harm. 2. When applying the public interest test, the Victorian Supreme Court has endorsed a broad and not a narrow approach: ZZ v Secretary Department of Justice [2013] VSC 267 (ZZ) per Bell J at [205]. While emphasising the main purpose of the Victorian legislation (equivalent to the NSW legislation) is the protection of children from harm, the decision in ZZ at [202] also acknowledged the relevance and importance of rehabilitating offenders and their right to work. The private interests of an applicant such as their right to work in their chosen area of employment are also a factor to be taken into consideration insofar as those private interests also have a broader community benefit as per Bell J at [203]: "In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others." 1. The concept of public interest has been determined by the Tribunal on the basis of giving priority to the broad interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY at [75]. 2. If the Tribunal is not satisfied that an applicant has met either of the first or second limbs in the two-part test, it is precluded from making an order enabling the applicant to work with children. The hearing – Submissions and evidence given under cross-examination The applicant's case 1. In his submission dated 1 December 2021 to the Children's Guardian, the applicant acknowledged that he understood why his situation required further scrutiny. 2. Nonetheless, the applicant's fundamental position was that not having been convicted in criminal proceedings means that the allegations against him were false. He denied all allegations against him and asserted that all sexual activity in connection with the incidents in 2008, 2014 and 2017 was consensual. 3. The applicant argued that none of the complainants were 18 or younger than 18 and that there is no allegation against him pertaining to children. As a consequence, he argued there is no basis for finding he is a risk to the safety of children. 4. The applicant's hypotheses with respect to the motivation of each complainant are that: 1. the complainant in the 2008 incident was seeking to hide an infidelity since she had a boyfriend at the time she engaged in sexual activity with the applicant; 2. the complainant in the 2014 incident was angry with the applicant because he told her that he had no intention of seeing her again; and 3. the complainant in the 2017 incident was upset because she had been abandoned by her friends earlier in the evening and the applicant had asked her to leave almost immediately after the sex concluded which offended her. 1. The applicant submitted that he is not a risk to children and he is the type of person that the reasonable person would want around their children. 2. The applicant also submitted that it is in the public interest that he be permitted to work with children, noting the importance of rehabilitation and the right to work. 3. The applicant asserted that the 'punishment' of not being granted a clearance rivalled what he had gone through in criminal proceedings, with missed opportunities for employment. He said that he may want to engage in activities such as coaching his children's team or volunteering in the canteen for soccer events or applying for employment opportunities but the requirement for a clearance meant that he had missed opportunities. 4. The applicant said that he was overwhelmed by the volume of material before the Tribunal which he also described as being selective and designed to confuse and obfuscate. He submitted that the respondent had presented incomplete evidence which was highly prejudicial to him. 5. The applicant said that he saw himself as a victim but that he still had the strength and dignity to 'avenge' what he considers to be damage caused to him through the allegations and charges laid against him. By this, the Tribunal understood that the applicant was not seeking to inflict harm on any complainant or the respondent, but was seeking to clear his name and prove himself to be right. He said that he had deliberately not responded to the respondent because he felt attacked and disrespected by what he described as the respondent's "adverse action" in refusing to grant him a clearance. The respondent's case 1. In the respondent's submission: 1. there is no basis to conclude that the allegations regarding the first trigger offence were groundless and the Tribunal cannot exclude the possibility that the offence occurred; 2. the Tribunal should find, on the balance of probabilities, that the second trigger offence occurred as alleged; 3. notwithstanding minor inconsistencies in the evidence, it is more likely than not on the balance of probabilities that the sexual encounter with respect to the third trigger offence was not consensual, and the Tribunal should find that the offence occurred. Further, the respondent argued that whilst it is not necessary for the Tribunal to be positively satisfied that the offence occurred, it cannot exclude the possibility that the offence occurred. 1. The respondent submitted that the applicant poses a real and appreciable risk to the safety of children on the grounds that: 1. on the balance of probabilities, the 2014 and 2017 incidents occurred and the applicant raped or sexually assaulted two girls who had only very recently turned 19 and were vulnerable in the circumstances; 2. even if not positively satisfied that the three trigger offences occurred as alleged, the possibility that the three offences occurred cannot be excluded, and this indicates a pattern of inappropriate behaviour which is likely to have severe consequences if it were repeated in the future involving a child; 3. each of the alleged offences involved sex with a young woman who was in an objectively vulnerable position, and given those factors the applicant's conduct indicates that he is a risk to the safety of children; 4. the applicant has not reflected on his conduct and has shown no insight into his behaviour; 5. the period of time since the third trigger offence occurred is not significant; and 6. more recently, a NSW police report (considered below in relation to ss 30(1)(b) and 30(1)(h) with respect to the applicant's conduct since the trigger offences occurred), implicates the applicant in an alleged incident in March 2022. This, it is submitted on behalf of the respondent, can be relied upon as another report of aggressive conduct in the context of a sexual relationship. 1. Further, the respondent contended that the Tribunal could not be satisfied that the applicant satisfies either the reasonable person or public interest test, and therefore he should not be granted a clearance. 2. With respect to the applicant's criticism that the respondent had 'cherry-picked' the material filed in these proceedings, the respondent pointed out that the applicant had not identified any evidence that he asserted was missing and should have been put before this Tribunal. Evidence in cross-examination First trigger offence 1. With respect to the first trigger offence, the applicant described the environment in which he had been living and working as one of excessive drinking and a rampant 'hook up' culture. To his mind, there was "nothing unusual" about the activity that took place on the night in question. He said that he had known the complainant for a couple of months. He was unable to state how tall the complainant was, saying that "most women are smaller than me", and he could not recall her face since he had "pushed the memory away". 2. The applicant acknowledged that both the complainant and he were intoxicated. When directed to the first paragraph on page 539 of Exhibit R3, he said "I recall we went in and went to bed". In response to the question "You had sex with her?", the applicant said that the complainant was gyrating against him and they then had sex. When directed again to the first paragraph on page 539 of Exhibit R3, he rejected the description of events in the police summary. The applicant's evidence under cross-examination was that on the day the police came to speak with him he was asleep, disoriented, confused and scared, and had no opportunity to seek advice. 3. When questioned about whether he spoke with the complainant to check whether she consented to the sexual activity, his response was that there was an element of assumption on both parts and that, because of her physical actions, he had already assumed that she consented. When asked whether he recalled that she walked out with a doona wrapped around her, his answer was that at the time he had only recently started engaging in sexual activity and said that she had sighed in disappointment and left the room. 4. When asked whether he accepted that the complainant was vulnerable, being drunk and sleepy, the applicant rejected that notion, saying that other factors demonstrated that she was not vulnerable. In response to the question "Are you a victim?", he answered "yes". 5. When it was put to the applicant that the complainant was prepared to undergo cross-examination in the criminal trial and that it had been traumatic for her, his evidence was that while the complainant went through the ordeal of being cross-examined, she "got out" of cheating on her boyfriend by lying about what had occurred, secured a promotion (to a position that the applicant wanted for himself) and even received a gift basket. He said that he did not feel any sympathy for her and that he only felt resentment. Second trigger offence 1. Under cross-examination, the applicant said that he had lived all his life in a district which happened to be in close proximity to where the complainant was living in another district. The applicant's evidence was that whilst he had grown up in the area not far from where the complainant was residing, he had no occasion to spend time in her district. 2. His evidence was that, at her insistence, their first meeting was late at night although they had initially planned to meet during the day and have ice cream. He said that the complainant directed him where to go after the decision to abandon having ice cream was made. He asserted that he did not know the area where she was directing him to drive and that "she picked the place and specifically directed me to it." 3. He said they had issues while he was driving and that he had realised she was not the person for him. When asked whether he had said that he couldn't be bothered taking her home, he denied telling her to find her own way home. He then said that even if he had, she had other options such as a taxi, Uber or friends. His evidence was that she had "backed me into the situation" and that "she orchestrated the entire situation". 4. In cross-examination, the applicant asserted that the complainant was not the vulnerable person, but that he was. 5. When it was put to the applicant that when he met the second complainant, he had already been accused of rape and found himself in another situation, he asserted that she was not the vulnerable one, but he was vulnerable because she can say anything she wants. 6. When asked whether the sexual encounter was consensual, the applicant answered that it had never crossed his mind. He then said that he was certain she had consented. When asked how he knew she had consented, he responded that the complainant was upset because he had rejected her. 7. When asked whether he accepted that the complainant was vulnerable, the applicant said that she was younger, smaller than him, not driving and new to the area but that based on what transpired between them she was not vulnerable. His evidence was that he did not take advantage of the complainant. Third trigger offence 1. The applicant's evidence in cross-examination was that the complainant did not appear to be intoxicated although he knew she had been drinking with friends. He said she was not lost and he assumed she knew where she was going. He said he thought she was in her late 20's and invited her to his home for a nightcap. He asserted that they had sex once. 2. It was put to the applicant that when he met the third complainant, two other people had accused him of rape/sexual assault. His response was that those previous accusations were false. 3. The applicant rejected the proposition that the third complainant was scared, calling that a "fabrication" and a "fiction". He added that he could not empathise or sympathise. 4. His evidence was that after having sex he told the complainant that he had to be up early with friends to help them move residence. She was offended, got up "in a huff" and left. 5. In response to the proposition that the vulnerability factors of the complainant included that she was younger, smaller, and in an isolated location with no friends nearby, the applicant answered that the vulnerability was mutual and that the only differentiating factor was that he is bigger in stature. Consideration Paramount consideration 1. In deciding the application, the paramount consideration is the safety, welfare and well-being of children and, in particular, protecting them from child abuse. Procedural fairness issue 1. For completeness, before proceeding to the mandatory considerations, we address the applicant's assertion that the material before us was incomplete and had been 'cherry-picked'. At the same time, the applicant said he felt overwhelmed by the volume of material filed in these proceedings. However, he did not identify any specific evidence which he objected to and did not provide any other evidence that he considers may be relevant to deciding his application. 2. Having regard to orders and directions variously made on 16 June 2022, 30 June 2022, 25 August, 2022, 13 October 2022 and 30 November 2022, the applicant was given every opportunity to familiarise himself with the documentation and to file evidence and submissions in these proceedings. He elected to not file such material and specifically requested the Tribunal to make orders that he be given a very short time of 24 hours after provision of the respondent's material due to his views that he did not want to put on any more evidence (refer to Note 10 in the orders made on 13 October 2022). The Tribunal did not make such an order, but gave the applicant 7 days to file material after the respondent's filing of evidence and submissions. 3. During the hearing, it was apparent that the applicant had not familiarised himself with the one-page police report about the 2022 Hotel Incident. Accordingly, he was given time during the hearing to acquaint himself with the contents of that report, give his evidence on that particular alleged incident and make any submission he wished to make in relation to it. 4. We are satisfied that the applicant had a reasonable time to prepare his application and prepare for the hearing. He was given an adequate opportunity to put his case and test the case against him. We therefore do not accept the applicant's broad and unsupported assertion. We are satisfied that he was afforded due process in the proceedings before us. Mandatory considerations in s 30(1)(a)-(k) of the Act 1. In determining the application, we are obliged to consider the evidence under each of the headings in s 30(1)(a)-(k) of the Act. 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: s 30(1)(a) 1. The offences for which applicant was charged and tried, but not convicted, were sexual in nature. They involved sexual assault/rape charges concerning three separate complainants in 2008, 2014 and 2017. In each case, the sexual acts were not in dispute, however the issue was the lack of consent by each complainant. The offences fall within Schedule 2 of the Act and are serious offences: 1. In relation to the incident in 2008, the applicant was charged with two counts of rape under s 349(1) of the Criminal Code (Qld). Had the offences been committed in New South Wales, they would have constituted offences under s 61I of the Crimes Act 1900 (NSW) for sexual assault, carrying a maximum sentence of 14 years imprisonment. 2. In relation to the 2014 incident, the applicant was charged with three counts of assault with act of indecency under s 61L of the Crimes Act 1900 (NSW) and two counts of sexual intercourse without consent under s 61I of that Act. The applicant was not arrested and charged until almost four years after the allegations were made, on 30 August 2018. The first jury trial in the Penrith District Court resulted in a not guilty verdict in September 2020. It appears from correspondence from the Director of Public Prosecutions to the Children's Guardian in June 2022 that the jury could not agree (a 'hung jury'). The second trial in the Katoomba District Court resulted in the jury not reaching agreement (again, a 'hung jury') and being discharged in December 2020. The applicant was committed for a third trial in the Penrith District Court in 2021, however the Crown decided not to pursue a further retrial in light of the earlier 'hung jury' results. 3. In relation to the 2017 incident, the applicant was charged with two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW) and two counts (subsequently withdrawn) of aggravated assault – deprive liberty under s 61J of that Act. The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b) 1. The first incident occurred 14 years ago, the second incident occurred 9 years ago and the third incident was 5 years ago. 2. Since the trigger offences, no other charges have been laid against the applicant. However, the applicant was identified as a "person of interest" in a NSW police report concerning an incident involving property damage in a room at a large luxury hotel in Sydney in March 2022 ("the 2022 Hotel Incident"). The report states that a 29 year old female (referred to in the report as "the P/N") had met the applicant on a dating website, had dinner with him and then proceeded to the P/N's hotel room where they engaged in sexual intercourse. The P/N informed police that she and the applicant had both consumed large amounts of alcohol. For reasons unknown to the P/N, the applicant became agitated after the sexual activity and threw a bottle of wine at the TV, destroying it. The report records that the applicant stormed out of the hotel room and was observed to exit the main entrance of the hotel at around 11.55pm. The police attended at the applicant's known address however there was no response and the police were unable to talk with the applicant. It appears that no further investigation was undertaken and compensation for the damage in the hotel room was sought from the P/N's credit card. 3. In cross-examination before this Tribunal, the applicant said he had no recollection of the incident. He unequivocally denied that he was involved. He rejected the proposition that the P/N had identified him to police as the person in the hotel room and the person who caused the property damage. He said that, at the time, he was residing in another hotel in the city and would have had no cause to go to the hotel where the incident occurred. The age of the person at the time the offences or matters occurred: s 30(1)(c) 1. In respect of each of the three incidents the applicant was: 1. 19 years old when the 2008 incident occurred; 2. 26 years old when the 2014 incident occurred; and 3. 29 years old when the 2017 incident occurred in May 2017. 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: s 30(1)(d) 1. The complainant in the 2008 incident was 21 years old. Both the applicant and the complainant had been drinking and the applicant knew that the complainant was under the influence of alcohol and was therefore vulnerable. The applicant acknowledged to police that "the complainant was too drunk and sleepy to consent to sex or know that it was him" and was aware that her decision-making was impaired by alcohol at the time. 2. The complainant in the 2014 incident had only recently turned 19 and was 7 years younger than the applicant. The sexual acts occurred late at night in a secluded location in circumstances where the complainant was not familiar with the area, having recently moved from Melbourne. The complainant did not drive a car and had very limited options for making her way home other than by relying upon the applicant to drive her. Additionally, the applicant knew that the complainant was suffering with a medical condition (thrush) that made sexual activity embarrassing and possibly painful for her. 3. The complainant in the 2017 incident had only turned 19 on the day of her encounter with the applicant, and was 10 years younger than him. She was heavily under the influence of alcohol, lost late at night, and alone after having been separated from her friends. She asked the applicant for assistance to find the nearest bus stop. 4. All three complainants were objectively vulnerable. With respect to the 2014 and 2017 incidents, the age difference between the applicant and each of the complainants who had only just turned 19 was such as to exacerbate their vulnerability in a situation where an older male engaged in sexual activity with them. The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(e) 1. With respect to the 2008 incident, the victim was two years older than the applicant and they were work colleagues. 2. With respect to the 2014 incident, the age difference was 7 years and the applicant and the victim had engaged in online communications and a telephone call before meeting in person for the first time shortly before the sexual acts occurred. 3. With respect to the 2017 incident, the age difference was 10 years and the applicant and the victim were strangers, having encountered each other on the street late at night before he invited her to his home where the sexual activity occurred. 4. Given the nature and brevity of the applicant's relationships with each of the complainants, his behaviour appears to be sexually opportunistic. Whether the person knew, or could reasonably have known, that the victim was a child: s 30(f) 1. None of the complainants were 18 or under 18, however the victims in the 2014 and 2017 incidents had only recently turned 19 and so were teenagers. The applicant knew the age of the victim in the 2014 incident, but made no attempt to ascertain the age of the victim in the 2017 incident or whether she was an adult. The person's present age: s 30(1)(g) 1. The applicant is currently 34 years of age. The seriousness of the person's criminal history and the conduct of the person since the matters occurred: s 30(1)(h) 1. The seriousness of the applicant's criminal history was discussed above in relation to s 30(1)(a) of the Act. 2. The conduct of the applicant since the matters occurred is recorded in a police report concerning the 2022 Hotel Incident where it was alleged the applicant was physically aggressive in the context of sexual activity, as discussed above in relation to s 30(1)(b) of the Act. 3. Otherwise, prior to the trigger offences, the applicant had never been charged or convicted of any offence. There is no record against him of domestic violence. 4. There have been no further criminal charges laid against the applicant. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i) 1. Over the period of time during which the incidents occurred, from 2008 to 2017, the allegations of sexual assault, together with vulnerability in each of the complainants and an element of coercion in the 2014 and 2017 incidents, demonstrate a repetitive pattern of conduct. 2. With respect to each of the 2014 and 2017 incidents, the complainants had only recently turned 19. The applicant was aware that the complainant with respect to the second trigger offence had only turned 19 two months before he met her. He was 26 but told her that he was in his early 20s. The complainant in the 2017 incident had in fact only turned 19 on the day of the encounter with the applicant and he did not take any steps to ascertain her age or be satisfied as to whether she was an adult. Those complainants were close enough to 18, to cause concern that the applicant has a history of engaging in sexual encounters with girls who are young, in their teens. Whilst he matured in age from 2008 to 2017 to the age of 29, the age of the complainants remained young. The applicant's past opportunistic sexual conduct with teenagers indicates that he poses a risk to the safety of females in their mid-to-late teens. 3. If any of the sexual offences had involved children, the applicant's conduct would have had a significant detrimental effect upon them. 4. There is no expert psychological assessment before us to assist in determining whether the applicant poses a risk to the safety of children. There is no psychological evidence before this Tribunal to address the likelihood of the applicant repeating the conduct which resulted in the charges made against him. 5. In his submission dated 1 December 2021 to the Children's Guardian, the applicant stated that he believed it was a good thing that "those members of society trusted with the care of our children are properly vetted." To his credit, the applicant also stated: "More widely, I believe that vigilance and education are important to helping keep our children safe. Not only parents, but caregivers and the wider community should be aware of what to look out for and be prepared to take action." 1. In closing submissions, the applicant conceded that the charges against him deserved closer examination by the respondent. However, whilst the applicant stated in his submission that he respects the process, he emphatically stated "but I do not concede once (sic) ounce of wrong doing." In his view, he had suffered the trauma of having "lightning" strike "more than once", in being falsely accused on three occasions. The analogy made between lightning strikes and the allegations against him is dismissive of the applicant's behaviour in each of the incidents. It suggests that he believes the false allegations bear no relationship whatsoever to his behaviour or conduct in each of the situations. It demonstrates that he has no insight into his behaviour or the relationship between his behaviour and the resulting allegations made against him. The applicant appears to have not reflected upon whether his behaviour called for an examination of what was happening in his life at the time of the incidents. In response to the question: "What was happening in your life at the time of the records?", he responded "The records are based on false allegations and so there is no further comment to be offered." 2. The applicant's lack of insight into his behaviour and the effect of his behaviour on the three victims is further demonstrated in his response to the Children's Guardian's enquiry into whether he had attended any rehabilitative courses or programs or taken action to help address his behaviour. His response was that there was no action for him to take: "… the records are based on false allegations. There was no need to undertake any action. The appropriate action to take would be to continue on as if they never occurred." 1. When asked whether he had sought professional treatment or support from a professional, the applicant said that he had sought psychological support at one point in time to assist him in dealing with stress and frustration as well as what he described as an "overwhelming sense of unfairness" that allegations had been made against him. It appears that his work with a psychologist dealt with the applicant's perceived victimisation. 2. The evidence before us demonstrates that the applicant has no insight into the trauma caused to each of the three victims, and no empathy towards them. Indeed, his evidence under cross-examination was that he felt no empathy towards the first complainant, and that he only felt resentment. 3. In response to the Tribunal's query as to whether he had put any strategies in place to avoid repetition (of his previous conduct), the applicant said that he has eliminated alcohol, is home by 9 or 10pm, wakes up early, and that his career is prospering. He also said that he is no longer a young adult seeking to interact with casual sexual encounters for self validation and that he is now "more sincere" and in a long term relationship. He said that he is now able to see another person's perspective based on their perception which is "real" to them, and that he is now more mindful as an adult of his position and power upon others. 4. He said that whilst he has had "hundreds of thousands of interactions", he has had to reconcile "how this has happened", however he couched it in terms of there being a pattern of "putting myself in vulnerable positions". Again, this demonstrates that the applicant is only reflective from the perspective that he sees himself as the victim of false allegations. 5. In light of the above, we find there is a moderate to high risk that the applicant will repeat the conduct that was the subject of the three trigger offences. Since there is no expert psychological evidence before us, we are not in a position to form the view that the risk of repetition has reduced. Indeed, whilst we do not make a finding that the applicant was involved in the 2022 Hotel Incident, the possibility that he was involved (because his name was given to police and it is an uncommon name) indicates a repetitive pattern of inappropriate behaviour and turbulence in the context of a sexual encounter. 6. If the applicant repeated his alleged inappropriate behaviours towards a child, in particular a female in her mid-to-late teens, it is likely that the victim would suffer severe and enduring sexual, emotional and psychological harm. Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1) 1. The Tribunal understands there are no other orders of a court or tribunal in force in relation to the applicant to be taken into consideration. Any information given by the applicant in, or in relation to, the application: s 30(1)(j) 1. The applicant asserted in closing submissions that he had people in his life to support him through the process of his application for clearance, that children were left in his care and he is not perceived to be a risk to children. However, the applicant did not provide any personal or professional references to support his application. Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1) 1. The Tribunal understands there is no other relevant information in relation to the applicant obtained in accordance with s 36A of the Act (exchange of information to bodies in other jurisdictions) to be taken into consideration. Any other matters that the Children's Guardian considers necessary: s 30(1)(k) 1. Not relevant. Findings and relevance to the assessment of risk 1. When assessing whether a person poses a risk to the safety of children, the standard to which the Tribunal must be satisfied that an allegation has been made is the civil standard, that is the balance of probabilities, and not the criminal standard, subject to having regard to the Briginshaw principle, before making a positive finding in favour of the allegations. 2. The risk that the applicant poses to the safety of children does not diminish with the number of separate, independent allegations against him even where he has not been convicted. This approach is consistent with that observed by Basten JA in Tilley v Children's Guardian [2017] NSWCA 174 at [35]: "The fact that there were a series of allegations of sexual misconduct, over a period of years, in different locations and from apparently entirely independent victims, is material upon which the Children's Guardian or the Tribunal were entitled to act. It is not logical to suggest that the risk declines with the number of independent though unproved allegations of similar misconduct." 1. Accordingly, when assessing whether the applicant poses a risk to the safety of children, it is appropriate for the Tribunal to give weight to the fact that the applicant has been charged for similar sexual offences on three different occasions with three different and unrelated women, in circumstances where all of them were vulnerable and two of them were teenagers who had only just turned 19. 2. The applicant's key contention that because he was not convicted, the allegations are false, is fundamentally flawed. 'No conviction' verdicts in criminal trials do not mean that the allegations were false. It means that the allegations were not proved to the criminal standard, that is, beyond reasonable doubt. As correctly pointed out in written submissions for the respondent, the decision in CXZ addresses the applicant's erroneous contention. Simpson AJA observed at [58] that the Act prefers the risk of possible injustice to an applicant (that he may be refused a clearance even if innocent of the allegations, because the possibility of risk cannot be excluded) to risk to the safety of children. 3. Moreover, in evaluating the evidence before us, it is not necessary for this Tribunal to find that the offences occurred. It is sufficient to conclude that the allegations are not manifestly groundless before proceeding to consider whether, based on the allegations, the applicant poses a risk to the safety of children. Findings in respect of the trigger offences 1. We make the following findings in respect of the trigger offences. The first trigger offence 1. The evidence filed in these proceedings concerning the first trigger offence is scant. The applicant's evidence under cross-examination before this Tribunal, that "we went in and went to bed", suggested that he and the complainant went to bed at the same time, as a mutual decision. His version to police about the sequence of events was that the complainant went to bed and the applicant later climbed into her bed, behind her. If the applicant's statement to police was accurate, his conduct could be viewed as sexually opportunistic. We regard the applicant's oral evidence in these proceedings as possibly an attempt to deflect away from, or diminish, his conduct. 2. On the totality of the evidence before us, it is not possible to conclude that the offence occurred. However, we cannot exclude that the complainant's allegation (that she did not consent to the sexual activity) was manifestly groundless. 3. Of significance, the applicant's evidence in these proceedings clearly demonstrated his ongoing resentment towards the complainant and his rejection of any assertion that she was vulnerable by virtue of being drunk and asleep at the time of the incident. This evidence is a matter that we take into account in assessing the applicant's attitude towards vulnerable persons and his judgment. The second trigger offence 1. At the time of the second trigger offence, the complainant had only just turned 19. Her recorded interview and written statement were both made within the first two days of the incident. She had only a very brief history of online messaging and a telephone call with the applicant before meeting him for the first time, that occasion being the night of the incident. She had no contact with him after the incident other than a phone call and text message to him the next morning to say she was going to the police. 2. We are faced with two conflicting versions of what occurred. On balance, acknowledging a number of minor inconsistencies in the evidence, we prefer the complainant's version of what took place for the following reasons: 1. by the time the complainant gave evidence under cross-examination in March and then in December 2020, more than six years had elapsed. Despite the passage of time, the complainant did not retract the allegations. Instead, she maintained her account of the incident. Her recorded interview and her written statement, both made within the first two days following the incident, were detailed. Her version of what occurred was tested twice under cross-examination by the applicant's defence counsel. She demonstrated a clear and detailed recollection of the incident, consistent with her interview and statement; 2. the complainant did not have a driving licence and had never been to the river before meeting the applicant, whereas the applicant by his own admission grew up in the area. It is more likely that, having grown up in the area, he knew the general environs and knew about the river lookout. Because he had a driving licence and access to a vehicle, it is likely that he knew how to get to the river. His evidence under cross-examination in these proceedings that "she backed me into the situation" and "orchestrated the entire situation" is not credible. His version of events, that he drove to the river under the control and specific direction of the complainant, is not plausible. 3. the complainant telephoned her stepbrother the next morning to tell him what had occurred and the stepbrother provided a generally corroborating statement about that phone call and was cross-examined in both the Penrith and Katoomba hearings; 4. the applicant's version of events, in particular that the sexual activity was consensual and in fact instigated by the complainant, is not plausible in circumstances where she was suffering the embarrassment as well as the pain and discomfort of thrush. A person who is suffering from that condition is more likely to want to avoid, and not instigate, sexual activity. It is more likely than not that her version of what occurred is true; 5. in light of the brevity of the relationship, the applicant's hypothesis that the complainant was motivated to make the allegations against him because she was angry and felt rejected when he told her that he had no intention of seeing her again, is not plausible. It is more plausible and more likely that the complainant made, and maintained, the allegation that she was coerced into sexual activity with the applicant because she was confused and scared when he told her he did not feel like taking her home, she was suffering thrush with accompanying discomfort and pain at the time and she was in an isolated location late at night with little or no mobile phone reception and no easy alternative means of making her way home. 1. On the balance of probabilities, we find the offence occurred as alleged. We give this matter significant weight in assessing his risk. 2. The applicant's evidence in these proceedings was that he was the vulnerable person, and not the complainant. He acknowledged that she was smaller than him but rejected the proposition that she was vulnerable in any respect. This failure to recognise the vulnerability of the complainant is a matter that we take into account in assessing the applicant's risk to the safety of children. The third trigger offence 1. On the day of the third trigger offence, the complainant had just reached the age of 19. 2. Again, we have two conflicting versions of what occurred. We agree with the respondent's submission that a number of minor inconsistencies in the complainant's evidence do not render her account entirely unreliable or fabricated. On balance, we prefer the complainant's version of what took place for the following reasons: 1. she was distressed to the point of hysteria immediately after the encounter, indicating that her distress was genuine and not fabricated; 2. her level of distress and hysteria was corroborated by her friends and an attending police officer, with one of her friends giving evidence under cross-examination in the criminal trial that the complainant was "hysterically crying and yelling" that the applicant had raped her; 3. after leaving the applicant's residence and meeting up again with her friends, she immediately claimed she had been raped, even though for the purpose of reporting the matter to police, she could not identify the applicant or where he lived; 4. her evidence in cross-examination in the criminal trial was that she did not want to report the rape to police because she was scared that the applicant could hurt her again if he found out; 5. when located by her friends, she was observed to be wearing her clothes back to front which suggests a state of panic when leaving the applicant's house; 6. her level of intoxication was such that she had been refused entry to a hotel some time between 10pm and midnight and medical evidence showed that her blood alcohol level at 4.25am (some 4 or 5 hours after meeting the applicant) was 0.127gm per 100ml (more than double the legal limit of 0.05 for drivers). This suggests the complainant may have been too drunk at the time of her encounter with the applicant to consent to having sex. It also contradicts the applicant's assertion that the complainant appeared to be sober; 7. the applicant's hypothesis, that the complainant was motivated to make the allegations against him because she was angry and felt rejected when he told her to leave his house after the sex had concluded, is not plausible having regard to the transient nature of their relationship. 1. On the evidence before us, whilst we do not make a positive finding that the incident occurred, we cannot exclude the possibility that it occurred. 2. We find that the complainant was objectively vulnerable because she was visibly drunk, alone and lost late at night, and this should have been obvious to the applicant. She was also 10 years younger than the applicant and smaller than him. He did not make enquiries to satisfy himself that she was an adult. In giving evidence in these proceedings, the applicant said he could not empathise or sympathise with the complainant. He rejected the proposition that she was scared, claiming it to be a fiction. His evidence was that any vulnerability was mutual. This inability to recognise vulnerability in a person or their circumstances is relevant to our assessment of the applicant's risk to the safety of children. The 2022 Hotel Incident 1. The applicant denied any involvement in the 2022 Hotel Incident. We do not place weight on the applicant's contention that it made no sense for him to be at the hotel in question because he was then living in another hotel in the city. There is insufficient evidence before us to positively conclude that the applicant was the person whom the P/N identified to police as being involved in the incident. However, because the P/N identified the applicant by his full name which is somewhat uncommon, we are left with the possibility that the applicant was the person involved and that he engaged in aggressive behaviour in the context of sexual activity. To be clear, there is no allegation that the sexual activity was not consensual. There is no allegation that the incident involved children. 2. The concern we have is that the applicant gave evidence that he has reformed his external circumstances and no longer seeks self-validation through casual encounters, and that he has all but eliminated alcohol. We make no moral judgment about these matters. We have concerns that heavy alcohol consumption and aggressive or violent behaviour by the applicant in the context of sexual activity indicates that the mitigating factors he asserted were in place are not effective. 3. We regard the unproved allegation as a matter to be considered when weighing up all the evidence to assess whether the applicant poses a risk to the safety of children. Overall assessment of risk 1. Our assessment of the applicant's risk to the safety of children is based on the totality of the evidence and the cumulative effect of the matters before us. 2. Our findings in relation to the trigger offences are relevant to our assessment of the applicant's risk towards the safety of children because each of the complainants was objectively vulnerable and the applicant's evidence before this Tribunal has clearly demonstrated his unequivocal rejection of that possibility. Since children are inherently vulnerable by virtue of their immature development across various spectra (including physical, emotional, psychological and cognitive spectra) vis-a-vis an adult, and we accept that repeated sexual offending towards vulnerable people is behaviour that poses a risk to the safety of children, the applicant's inability to recognise vulnerability in a person or their circumstances is a critical consideration in our assessment of whether he poses a risk to the safety of children. 3. Our positive finding in relation to the 2014 incident has had a decisive impact upon our determination. 4. We are not satisfied that the applicant has reflected upon his behaviour associated with the trigger offences or that he has insight into his behaviour and the relationship it bears to the allegations made against him. 5. We are satisfied that the applicant has no empathy for the trauma suffered by each of the three complainants. We are satisfied that the applicant has failed to demonstrate his capacity to recognise vulnerable characteristics in other persons and adjust his behaviour accordingly. 6. The applicant has not provided an expert psychological assessment or any personal or professional references to support his submissions that he has matured and made changes to his lifestyle. We are therefore not satisfied that there are any or any sufficient protective factors in place to mitigate against the risk of the applicant engaging in repetitive inappropriate behaviours in the context of sexual activity with females in their mid-to-late teens. 7. We therefore conclude, on the cumulative evidence before us, that the applicant poses a real and appreciable risk to the safety of children. Conclusion 1. For the reasons set out above, the Tribunal is satisfied on the cumulative evidence before it and on the balance of probabilities that the applicant poses a real and appreciable risk to the safety of children. 2. The Tribunal is also satisfied that on the evidence before it and on the balance of probabilities, it is likely that the applicant poses a risk to the safety of children. Accordingly, we find that the Interim Bar Decision was justified. 3. It is therefore not necessary to consider the reasonable person and public interest tests in ss 30(1A)(a) and 30(1A)(b) of the Act. Orders 1. The decision of the Children's Guardian dated 26 September 2022 to refuse to grant the applicant a working with children check clearance is affirmed. 2. The decision of the Children's Guardian dated 11 November 2021 to impose an interim bar on the applicant is affirmed. ********** 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: 21 March 2023