Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CGZ v Children's Guardian [2016] NSWCATAD 220 Hearing dates: 8 June 2016 Date of orders: 06 October 2016 Decision date: 06 October 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Hitter, Senior Member B Field, General Member Decision: The decision of the Respondent to refuse a Working with Children Clearance is affirmed. Catchwords: ADMINISTRATIVE LAW – whether the applicant poses a risk to the safety of children – 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) Evidence Act 1995 NSW Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children's Guardian (no 2) 2014 NSWCAT 164 BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 BQE v Children's Guardian [2015] NSWCATAD 89 CJT v Office of Children's Guardian [2016] NSWSC 738 Commissioner for Children and Young People v IK [2005] NSWSC 1136 Commission for Children and Young People v FZ NSWCA 111 Commissioner for Children and Young People v V [2002] NSWSC 949 Category: Principal judgment Parties: CGZ (Applicant) Children's Guardian (Respondent) Representation: Counsel: V Hartstein (Respondent) Solicitors: De Brennan Tomlinson Pearce (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1510733 Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION Introduction 1. The Applicant referred to as "CGZ" is a 41 year old man born in Togo (West Africa). He migrated to Australia about 16 years ago to pursue educational and work opportunities. He and his female partner recently had their first child. 2. The Applicant was charged with committing an Assault with Act of Indecency (the offence) against an adult female following an incident (the incident) at her workplace in August 2013. The Applicant was convicted of this offence in the Local Court in June 2014 and was sentenced to a three year (Section 9) Bond. In November 2014, the Applicant was acquitted on appeal in the District Court of NSW. 3. In July 2014, the Applicant applied for a Working with Children Check (WWCC) clearance nominating clubs and other bodies as his employment sector but was deemed a disqualified person under the Child Protection (Working with Children) Act 2012 (the Act). In April 2015, following the acquittal in the District Court, the Applicant lodged a further application for a WWCC clearance. Although the Applicant was acquitted, the offence is listed in Schedule 1 of the Act and required the Respondent to conduct a risk assessment: the Act, s 15. 4. Section 18(2) of the Act provides that the Respondent must grant a WWCC clearance to a person who is subject to a risk assessment unless it is satisfied that the person poses a risk to the safety of children. On 6 November 2015, the Respondent notified the Applicant that his application for a WWCC clearance was refused because he was found to pose a risk to the safety of children. The Applicant seeks a review of that decision pursuant to section 27 of the Act. 5. This is a merits review and there is no obligation on the Applicant to show that the Respondent was wrong in refusing a WWCC Clearance: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88. The Applicant does however point to errors he believes the Respondent made in processing his application for a WWCC clearance as well as presenting material to the Tribunal in support of his contention that he does not pose a risk to the safety of children. 6. The reasons given by the Respondent for refusing a WWCC clearance included that the offence related to allegations of a sexual nature. Also that "the information provided by the applicant indicates that the applicant has minimal insight in relation to his trigger offence. Several conversations were had with the applicant regarding the risk assessment process, however to date; the applicant appears unable to comprehend the seriousness of the allegations that were made. The applicant presents with a preoccupation on how he does not believe he should be subject to a risk assessment and has made threats towards OCG staff". The Respondent concluded that "the applicant's trigger offence is recent and relates to allegations of a sexual nature. The applicant poses a risk to the safety of children". 7. The Tribunal must determine what is the "correct and preferable" decision having regard to the material before it, including material which may not have been before the Respondent: Administrative Decisions Review Act 1997 (NSW), s 63 (1). The Applicant has a duty to disclose any relevant matters to his application for a WWCC clearance: the Act, s 27. 8. The Tribunal may affirm, vary, set aside or make a decision in substitution for the decision under review. 9. An order was made under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or broadcast of the name of the Applicant without leave of the Tribunal. The object of the Act 1. The object of the Act is to protect children by requiring persons engaged in child-related work to have WWCC clearances: the Act, s 3 and s 8. Section 4 of the Act provides that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. Children is defined as persons under the age of 18 years: the Act, s 5. 2. The Tribunal must determine whether the Applicant poses a risk to the safety of children having regard to the factors set out in section 30 (1) of the Act. The word "risk" in the Act is construed to mean a risk that is "real and appreciable". In BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Beech-Jones J cited with approval at [26] the following by Young CJ in Commissioner for Children and Young People v V [2002] NSWSC 949 concerning the word "risk" in the now repealed Child Protection (Prohibited Employment) Act 1998 (NSW): What one is looking for is whether, in all of the circumstances, there is a real and appreciable risk in the sense of a risk that is greater that the risk of any adult preying on children. One, however, must link the word 'risk' with the words that follow, namely, 'to the safety of children': at [42] 1. The Tribunal has followed this meaning of risk: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69; BFC v The Children's Guardian [2014] NSWCATAD 90; BFX v Children's Guardian [2014] NSWCATAD 115 and BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. The Tribunal's jurisdiction under the Act is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. 2. The burden of proof in these proceedings is on the balance or probabilities. Guidance is provided by section 140 (2) of the Evidence Act 1995 (NSW), which establishes that where a court is required to make a decision based on the balance of probabilities, it may take into account the nature of the course of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged. The material before the Tribunal 1. The Tribunal was provided with the following material to consider in determining this application: 1. Bundles of section 58 documents filed by the Respondent on 13 May 2016, 9 February 2016, and 16 December 2015; 2. Respondent's written outline of submissions dated 9 February 2016; 3. Respondent's Supplementary Submissions dated 30 May 2016; 4. Statement of CGZ dated 29 January 2016; 5. Expert Report from psychologist Sam Borenstein dated 29 January 2016; 6. Reference from the Applicant's partner (LC) dated 29 January 2016; 7. Professional reference from TA dated 16 December 2016; 8. Applicant's outline of submissions dated 16 February 2016; 9. Character reference from UA dated 16 December 2015; 10. Certificate of Recognition from a former employer of the Applicant; and 11. Letter from a former employer of the Applicant. 1. A Hearing was held in Sydney where the Applicant was present and he was the only person to give oral evidence. Both parties were legally represented. 2. The Applicant's solicitor sought to exclude certain material contained in the Respondent's section 58 documents on the basis of it being prejudicial to the Applicant and not relevant to the proceedings before the Tribunal. Respondent's counsel opposed the exclusion of any of this material arguing it was relevant and formed part of the material on which the Respondent based its determination to refuse a WWCC clearance. 3. The Tribunal determined that to the extent that material might be unsupported and untested, if considered relevant it can be accorded the appropriate weight. The Tribunal proceeded to consider all the material presented to it on this basis. The offence 1. The offence arose from a complaint made by a woman in her thirties working in the cosmetics section of a large department store. The Applicant purchased certain cosmetic products, which entitled him to a treatment (the treatment). The appointment was allocated to the complainant, who had over 10 years' experience as a practitioner of such treatments. 2. The complainant asked the Applicant to wear a disposable gown and explained how to put it on. The Applicant asked why he needed to wear a gown and she said it was for hygiene purposes. He was instructed to remove his shirt and given the option of keeping his trousers on or off. He was left in the treatment room and told once he had the gown on, to get underneath the "doona" on the treatment bed. When the complainant returned to the treatment room the Applicant had taken off his shirt and his trousers and was standing in his socks and underpants, holding the gown in his hand saying he needed help to put it on. The complainant told him that she couldn't do that, but gave him further instructions. He put the gown on and the treatment commenced. 3. The complainant said that during the treatment the Applicant took his arms out from underneath the doona and reached behind his head and with his hands made contact with the sides of her body near her breasts. She asked him what he was doing and pushed his hands away. He said he was stretching. She told him to put his arms back underneath the doona. She said the Applicant asked her personal questions such as where she lived and who she lived with. She answered some questions but gave a different location of where she lived because she was troubled by what had happened earlier. A short time later he again reached behind him but she had been keeping her distance and he only reached her upper arms. She gave him an ultimatum to stop doing that or the treatment would stop. He told her to continue. She put an eye mask on him as required when massaging hands and arms and the Applicant said he wanted to take it off so he could look at her while she was talking to him. He took off the eye mask and looked at her and said "wow" and was biting his lip and making noises which she interpreted as having a sexual tone. It made her feel uncomfortable and she wanted to finish the treatment as quickly as she could. When she was packing up, he got up and stood facing her, which made her take a step back. The Applicant moved towards her and she had her back against the wall. She said she feared for her safety and froze. The Applicant grabbed her hips and pulled her to him and pushed their genitals together. He slapped her right buttock and she could feel his genitals against her. She said "what are you doing, you can't do that". He said "What? I didn't do anything". The Applicant let her go and pointed to his groin and she saw that he had an erection. The complainant went to leave the treatment room but the Applicant told her to stay. She was scared and did what he asked and stayed until he got dressed. They walked back to the counter together. She completed the transaction and gave him a card and asked him to call if he had any questions about the products. She said she was trying to keep up the normal appearance of such transactions. 4. The complainant said it was just before closing time and she looked for a security guard but could not immediately find one so got her things and left. On her way home she sent a text message to a friend saying she had been assaulted at work. She went to a police station on her way home to make a complaint. That evening when she got home she spoke to the counter manager on the phone and told her she had been assaulted by the Applicant. The Applicant's evidence 1. The Applicant maintained throughout the criminal proceedings that he did not assault the complainant. The Applicant said he had treatments of this kind in the past. His evidence in the Local Court was that he put on the gown, but the complainant said it was not on properly (p170 s 58 documents) so she reached out to fix it. He said he was wearing a singlet, skins or tights and red and white boxer shorts. 2. He said she put eye pads on him at the beginning of the treatment. He said he found her to be "very conversational" including guessing correctly his star sign. He said that the complainant pulled his arms out from underneath the doona in order to massage them. He denied reaching behind him to touch her. He denied biting his lip at any stage while the complainant was massaging him. He denied pushing up against her and slapping her buttocks and pushing their genitals together. He denied pointing to an erection or that he had one at any time during the treatment. He said at no stage did he think the complainant was uncomfortable during the course of the treatment (p176 s 58 documents). 3. In the Local Court the Applicant initially said that at the end of the treatment he put his clothes back on and met her back at the counter (p173 s 58 documents). However he later agreed that they walked back together with the Complainant walking a few steps in front of him. At the counter he said they discussed cosmetic products and she invited him to contact them if he had any questions and said they would be in contact with him about further treatment. The Applicant said that the complainant used the third person saying something like "we will be in touch with you". 4. The Applicant's evidence to the Tribunal varied in some aspects to the evidence he gave in the Local Court. In the Local Court he said he had the gown on when the complainant came back into the treatment room and she reached out to fix it because it was not on properly. At the Hearing it was suggested to him by Respondent's counsel that he didn't have the gown on when the complainant came back into the treatment room and did not have his trousers on when he asked the complainant for help to put the gown on. The Applicant said he did not have his trousers on because he was wearing skins or tights over the top of his underpants. He said he needed help to put the gown on because he was unfamiliar with that particular style of gown. 5. Respondent's counsel asked if he had been wearing a t-shirt or singlet, would it have been tucked into his underpants and he replied "possibly". He could recall at the Hearing if he was wearing a singlet or t-shirt. Under cross examination in the Local Court the Applicant said that his singlet was "all tucked in". The Learned Magistrate asked the Applicant whether his boxer shorts could have been seen under his skins. He replied "Well you could see the red band because I had my singlet all tucked in, it's quite possible to see through the – the – the skin pants" (p179 s 58 documents). The Applicant said to the Tribunal he could not remember the colour of the underpants he was wearing. 6. During cross examination of the complainant in the Local Court, the Applicant's solicitor put the following proposition to her: "I'm suggesting to you now that [the Applicant] was wearing brief underpants, boxer shorts underneath those he was wearing skin tights with black socks underneath…". The complainant answered "I don't remember him wearing tights" (p144 s 58 documents). The complainant said he was wearing just white underpants and black socks. Respondent's counsel asked the Applicant why he did not correct his solicitor in relation to the proposition put to the complainant that his underpants were on top of his tights and not underneath. He said he didn't say anything because it sounded funny to him like a "comedy", that is to wear underpants over the top of tights. 7. Whether the Applicant wore skins or tights on top of his underpants or underneath them, and whether these tights were transparent or see-through, is relevant because the complainant gives a very detailed description of the Applicant's underpants in her evidence. She said he was wearing tight white boxer shorts. The Applicant told the Tribunal the tights had a red stripe down the side. In the Local Court the Applicant said that his boxer shorts had a red stripe down the side and the tights were see-through or transparent. At the Hearing the Applicant said it was obvious that he was wearing tights or skins. 8. The Applicant's solicitor submitted that what the Applicant was wearing is not relevant and to the extent that there are any discrepancies in the Applicant's evidence about what he was wearing, this can be explained by the lapse of time and does not mean there is an intention to mislead. 9. The Applicant's evidence at the Hearing about what he wearing was factually inconsistent with the evidence he gave in the Local Court. The Tribunal found these inconsistencies troubling, particularly as the evidence the Applicant gave in the Local Court was given only about 2 years ago, and the alleged offence took place about 3 years ago. The Tribunal did not form a view about whether these inconsistencies amounted to an intention to mislead. However the Tribunal found the Applicant's account of what he was wearing and what he said had occurred in relation to the alleged offence to not be persuasive. The criminal proceedings 1. The prosecution tendered a witness statement from a woman (NA), the friend who the complainant sent text messages to on her way home. It includes transcripts of these text messages, which say "give me a minute pls I just got assaulted at work and I need to make a couple of calls". NA said "I tried calling her a number of times before being able to speak to [the complainant]. She was clearly scared and very upset and crying whilst speaking to me. We spoke on the phone for a bit where she told me some things. She described to me what happened". The complainant's counter manager also provided a witness statement. The complainant sent her a message that night which said "I'm very upset; you have no idea what that man [name] did to me". They also spoke on the phone and the complainant told her she had been assaulted by the Applicant. 2. The Learned Magistrate said in her findings that, "I am absolutely convinced that [the complainant] was telling the truth… she was able to give a great amount of detail about where she had been and what had happened and in my view, her account was very consistent. I have some concerns. As I have said, I recognise that it is a difficult matter to defend. But in circumstances where I have absolutely no doubt about the honesty and reliability of [the complainant]". 3. During cross examination the Learned Magistrate asked the Applicant whether he was sure about his evidence that he walked back to the counter separately and not together with the complainant. He said he was sure. The Learned Magistrate, acknowledging that the timing of certain events was in issue, referred to "Exhibit 2", which was a CCTV image of him walking together with the complainant. In response the Applicant said "Okay, my understand (sic) of walking with her was if for example she waited for me to get ready, so we walked out of the room together. She was ahead of me a few – a few feet". He was asked if he was confident this was at the end of the treatment and not the start and he said that he was. 4. The Learned Magistrate said in her findings that "in circumstances where I am of the view that [the Applicant] is not telling the truth with respect to time and not telling the truth with respect to how the parties left the treatment at the end of the session. He did not give the prosecutor the opportunity to really ask him questions about it. He just simply answered "that's not correct" without in fact looking into his memory and trying to respond to things appropriately. I am satisfied beyond a reasonable doubt that the assault with act of indecency as alleged by [the complainant] has been proven". 5. The Applicant tendered an affidavit in the District Court, which refers to some of the evidence he gave in the Local Court. It referred to questions asked by the Learned Magistrate about what transpired with the complainant after the treatment. The Applicant said "During cross examination by the Magistrate, I remembered that I was mistaken when I said that I met [the complainant] back at the counter after the treatment. In fact, [the complainant] and I did walk back to the [product] counter together after the treatment, but not side-by-side. This was a correction from my earlier evidence". The Applicant confirmed in his affidavit that the complainant walked a few steps ahead of him back to the counter. The Applicant also referred to the Learned Magistrate asking him about the image contained in Exhibit 2. He said his evidence about him agreeing that the image showed them to be walking back from the counter was misunderstood, and that this image was of them walking to the treatment room (and not from the treatment room). 6. The Applicant's solicitor tendered an Affidavit in the District Court which said that he had misunderstood the Applicant's instructions that the image contained in Exhibit 2 was of them after the treatment when it was an image of them before the treatment. 7. The District Court appeal addressed the Learned Magistrate's adverse findings of the Applicant's evidence of timing and whether the image contained in Exhibit 2 was of them going to or leaving the treatment room, as well as the manner in which he answered questions under cross examination. His Honour had all the transcripts of evidence and all the material presented by the prosecution and defence. The Applicant also gave oral evidence before His Honour and his Counsel made detailed submissions in relation to his grasp of the English language, the timing of events before and after the treatment, and the nature of the conversations between the Applicant and complainant. The Applicant's submissions referred to the complainant conceding that she had the opportunity to leave the treatment room and that it was unusual to give out a card with her first name on it and invite the Applicant to call given what she said had happened during the treatment. His Honour said "I find that a most amazing piece of evidence. I must say human experience of course varies a lot and human beings act in mysterious ways but I have never struck before someone in my life who claimed to have been sexually assaulted who'd calmly complete a purchase and hand out a business card with a telephone number on it. That seems very strange to me". 8. His Honour ultimately concluded that in "my opinion the appellant's version is just as probable as that of the complainant's. There is nothing to choose between them. There are some things that go to support her version. She did make the complaint fairly soon afterwards, she did go to a police station. To support his version of events that occurred after this treatment up at the counter she sold him these products and gave him her business card. I am unable to choose between the two versions, I am unable to be satisfied beyond a reasonable doubt, therefore I set aside the conviction and I find the appellant not guilty". 9. The Applicant maintained throughout the criminal proceedings that he had been unjustly accused. Evidence was provided of his good character and it was submitted that the offence was not consistent with the perception of him by the people who provided references to the Court. 10. The Learned Magistrate was however satisfied beyond a reasonable doubt that the offence had occurred. This is not determinative in these proceedings but it does suggest the prosecution case was strong. It is also pertinent that His Honour was not satisfied that the offence was proven beyond reasonable doubt because His Honour said he could not "choose" between the two versions. The standard of proof to be applied by this Tribunal is the lesser standard of on the balance of probabilities. 11. The Tribunal was persuaded by the complainant's evidence in the Local Court. Her evidence was detailed and consistent. The Tribunal was not troubled about how she dealt with the Applicant at the counter because of the circumstances she found herself in. She was in her workplace and she said she was scared of the Applicant. The Tribunal considered her explanation that she was trying to keep up normal appearances as plausible in these circumstances. She told a friend she had been assaulted and reported it to the Police and her manager very shortly after it had occurred. The Tribunal is satisfied that the complainant was scared and distressed by what had occurred during the treatment. Workplace complaints about the Applicant 1. In the course of the Respondent conducting a risk assessment, information was received from two former employers of the Applicant. The Applicant worked for these employers as an employment advisor. The Applicant worked for one employer for a period of about 5 months and no complaints or concerns were noted. The Applicant worked for the other employer for a period of about 18 months. This employer said a review of the Applicant's file revealed complaints or concerns raised by clients and by a colleague, however no requests were made for them to be formally investigated. This employer provided copies of emails and a file note containing information about the complaints. They describe the Applicant being rude to clients and the complaint from a colleague was about comments allegedly made by the Applicant that could be considered derogatory to women. These complaints were essentially of a minor nature, were never investigated, and were afforded little or no weight. Of more concern is a file note made by an employee, which contained an allegation made by a client that the Applicant had sexually assaulted her. It says the Applicant invited her to attend a Church service with him on Christmas Eve in 2013. The file note says that the alleged assault caused bruises to her arms and that the client was slurring her words and looked dishevelled. She was invited to return to discuss the allegations another time, however she never did so and nothing further eventuated. The Applicant accepted that this complaint was made but he denied anything untoward occurred with this client. 2. The Applicant's solicitor submitted that these complaints should be given minimal weight if any, given that they were never investigated and no findings were made in relation to any of them. Furthermore, they should be considered in the context of positive comments made about the Applicant in the workplace. 3. The Applicant provided a Certificate (undated) of Recognition for "1 year of loyal and dedicated service" and a letter dated August 2014 advising him that a salary review undertaken across the organisation resulted in an increase to the Applicant's salary based on business performance and internal and external market comparisons". The Applicant's solicitor submitted that if there were any concerns about the Applicant's conduct, he would not have been given this Certificate or given a pay rise. This could be the case but apart from the material provided by this employer which contained information about these workplace complaints, none of the references or any other material provided by this employer refers to these workplace complaints or the employer's attitude towards them. There was no direct evidence before the Tribunal about whether these workplace complaints were a concern to the employer or not. 4. A "Personal and Professional Recommendation" dated November 2015 was provided by a man (MG) who worked with the Applicant and held a senior role in the organisation where the complaints were made. It states that the Applicant has his "strongest possible recommendation" but he does not refer to any knowledge of either the offence or the workplace complaints. A reference from TA dated December 2015, says he has known the Applicant in both a professional and personal capacity, and hired him on two occasions as an employment advisor. He says that he is familiar with the offence and has never known the Applicant to behave inappropriately towards "children or vulnerable individuals". He also makes no reference to workplace complaints made against the Applicant. 5. "UA" has known the Applicant for 9 years in a personal capacity and provided a reference dated December 2015 that refers to the offence and that the Applicant has spent time UA's children and has never seen him demonstrate inappropriate behaviour towards children. 6. SB asked the Applicant about workplace complaints and noted in his report that the workplace complaints were not of a "sexual nature". The Applicant told SB that the complaints were "generic" in keeping with working with clients who are distressed and stressed generally. Respondent's counsel asked the Applicant why he did not tell SB about the allegation of sexual assault made by one of his clients. The Applicant agreed this allegation was not "generic" but he considered it to be "outside the workplace" so he did not tell SB about it. 7. The Tribunal found this explanation troubling. The purpose of SB's report was to assess the Applicant with reference to any risk he might pose to the safety of children following being charged of an offence that was of a sexual nature. Failing to disclose that an allegation of sexual assault had been made by one of his clients in recent history leaves open the suggestion made by the Respondent that it was a deliberate omission in order to present himself in a more favourable light with respect to SB's assessment of him for these proceedings. This also raises questions in the context of the Applicant's duty to fully disclose any matter relevant to his application (s 27, the Act). 8. Whilst the Tribunal did not make a formal finding in relation to whether the Applicant deliberately withheld this information from SB in order to present himself in a more favourable light, or did not meet his duty to fully disclose any relevant matters, the omission was seen as part of the Applicant's overall approach to the risk assessment which is dealt with in more detail below. Applicant's approach to the risk assessment 1. The Respondent asked the Applicant for information about the offence in the course of conducting the risk assessment. The Applicant said that the matter had been "finalised in court and he did not want to answer any questions regarding this. He informed that if we required information we should look at the court information". The Respondent advised him that the court documents had been requested and the only information available at the time was from the police report of the incident, which did not provide his account of events. There is a file note which refers to the Applicant to have become "angry and informed that he was not prepared to answer any questions about the offence" (s 58 documents). 2. The Respondent notified the Applicant that part of the risk assessment process included obtaining information about his employment history and obtaining references from employers. The Applicant told the Respondent that he would not provide employer references and did not wish for past employers to know about the allegations. Despite an assurance that former employers would not be given details of the allegations, including being shown the template that is used to request this information, the Applicant maintained he would not provide this information and instead offered to provide a character reference from his partner and one from his friend. 3. SB asked the Applicant why he did not cooperate with the risk assessment. The report states that the Applicant "felt he was being asked to provide information not relevant, and perceived, rightly or wrongly, he was being victimised". SB concluded that the Applicant's frustration and anger in relation to his dealings with the Respondent, whom he perceives as having a "lack of competence" and "negligence" in managing his case, is "likely residual to the wrongful allegation which he eventually successfully defended in the District Court". SB suggested that the Applicant "feels the risk assessment was not necessary as the matter was dealt with by the District Court". He quotes the Applicant to have said "they kept wanting to go over it. I don't go over that stuff. I don't want to give details to previous employers". SB reports that "I do not believe [the Applicant's] attitude to the Office of the Children's Guardian should in any way be interpreted as him attempting to hid or diminish responsibility towards those in his care". 4. The Applicant's solicitor submitted that the Applicant's approach to the risk assessment should be seen in the context of the errors he says the Respondent made in conducting the risk assessment, which included not having all the relevant evidence, not properly balancing the evidence that was available, and not notifying the Applicant's current employer that he could continue to work as an employment advisor as long as he did not deal with clients under the age of 18 years. If the Respondent made errors in the course of conducting the risk assessment, this can provide a reasonable basis for the Applicant's frustration with the process. However the Respondent was obliged to determine whether the Applicant posed a risk to the safety of children and the s 58 documents reveal that the Respondent appropriately offered the Applicant opportunities to provide material in support of his application for a WWCC clearance. 5. The Respondent acknowledged that the Applicant was acquitted of the offence but noted "to date, the applicant has provided minimal information to the OCG and has demonstrated poor insight into the seriousness of the alleged offence". Also that the Applicant "has routinely expressed his frustration in having to participate in the risk assessment and has on numerous occasions, informed that he does not understand why he is subject to a risk assessment". 6. The Applicant said in his statement that it "was not the case that I was not prepared to speak about this. It was simply the case that I made it clear on a number of occasions to the OCG that I did not want to relive every moment of what had been a stressful incident given that the details about the incident could be obtained from the Court documents where I had given evidence in the witness box". The Applicant said that "it has been suggested by the OCG that I lack insight in relation to the criminal offence that was levelled against me. This is not correct. I am well aware that the charge against me was a serious one. The allegation has had an enormous personal, emotional and financial strain on me and my partner. However it is an offence for which I was acquitted. Because of this, it is always difficult for me to have insight into an offence that I did not do". 7. The Applicant's solicitor submitted that no adverse inference should be drawn because the Applicant did not want to repeatedly relive and/or reconstruct the offence in circumstances where he has given evidence at the Local Court setting out his version and for which he was ultimately acquitted in the District Court. The Applicant's solicitor submits that had the Respondent should have relied on these transcripts to be briefed with the material sought. 8. The Respondent was obliged to conduct a risk assessment even though the Applicant was acquitted in the District Court. The fact that the charges were dismissed was not necessarily sufficient for the Respondent to form a view that the Applicant's conduct did not scare or threaten the complainant, or cause her distress. The Applicant's acquittal did not, and does not, necessarily mean that it can be established on the balance of probabilities that he does not pose a risk to the safety of children. 9. SB's report notes the Applicant "continues to feel angered by being drawn into a process which is not of his doing". SB also notes that the Applicant "did not want to discuss the alleged offence, believing the matter had been dealt with by the Court". 10. The Applicant said in his statement, reinforced by the submissions made by his solicitor and by SB's report, that his insight into the seriousness of the offence is limited to the impact the offence and the criminal proceedings has had on him and his partner. The Applicant did not demonstrate to the Tribunal that he has any insight into the allegations of a sexual nature made about his conduct, at least one of which resulted in a complaint to the Police, in the context of the protective requirements under the Act. Factors the Tribunal must take into account 1. Section 30 (1) of the Act provides the factors that the Tribunal must consider in determining an application under Part 4 of the Act: 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 total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. The seriousness of the offences or any matters that caused a refusal of a clearance 1. The Tribunal accepts that the offence was at the lower end of the scale. No physical injuries were reported but there is evidence of the complainant being made to feel scared, threatened and uncomfortable. 2. The offence comprised of allegations which were of a sexual nature which elevates the seriousness of the conduct being complained of. Although never investigated, there is a further allegation of an assault which is of a sexual nature by an unrelated woman, who was a client of the Applicant. The period of time since the offence occurred 1. The offence occurred in August 2013 which is relatively recent. The age of the person at the time of the offences 1. The Applicant was 39 years old. The age of the victim 1. The complainant was 31 years old. The difference in age between the victim and the person and the relationship (if any) between the victim and the person 1. The age difference is about 8 years. The offence occurred in the complainant's workplace and she was providing a professional service to the Applicant. Whether the person knew, or could reasonably have known, that the victim was a child 1. The complainant was not a child. The person's present age 1. The Applicant is 41 years old. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 1. The Applicant does not have a criminal record. He has received a Section 10 (no conviction) for a Drive Whilst Suspended offence. 2. A former employer of the Applicant provided information about workplace complaints made by clients and one colleague. They are of a minor nature with the exception of an allegation made by a client that she had been sexually assaulted by the Applicant. These complaints were not investigated but there is no dispute that they were made. The likelihood of repetition of the offences or conduct and the impact on children of any such repetition 1. A pre-sentence report dated 22 July 2014, prior to the Applicant being acquitted of the offence, notes that the Applicant declined to discuss the "offending behaviour" with the Court Duty Officer. It recommended due to the sexual nature of the offence that a full pre-sentence report be prepared including a referral to the Community Corrections psychologist for an assessment. This report is dated 25 August 2014. It notes that the Applicant was assessed as a "low/medium risk of re-offending". A Static 99R risk assessment conducted by a Community Corrections Psychologist indicated a "low/medium risk of sexual re-offending relative to other male sex offenders". These assessments were conducted in light of a conviction in the Local Court later overturned in the District Court. No evidence was presented to the Tribunal about what impact if any, the acquittal would have on these findings. 2. SB's Static 99R test was administered after the Applicant's acquittal and the results indicated a "low risk of offending". SB conducted a Personality Assessment Screener, which demonstrated a low potential for emotional and/or behavioural problems and regarded as low compared to what is typical for adults in the community. SB noted that on the Depression Anxiety Stress Scale there was moderate depression. Anxiety symptoms were in the normal range, and there were symptoms of stress. SB notes that the Applicant has no prior history of psychiatric or psychological disturbance and no evidence of any such disturbance currently. However SB also said that the Applicant "remains psychologically traumatised and presents with mild to moderate symptoms of depression". SB does not believe that the Applicant poses a risk to any child or adult and that the Applicant "reacted strongly to wrongful accusations, and believes he continues to be treated as a guilty man". 3. SB said the "likelihood of [the Applicant] having to deal with the alleged offences and such allegations against a child are highly improbable". SB concluded that he does not "believe the applicant presents a risk to any child or adult". 4. The Tribunal was told that the Respondent had not requested SB attend the Hearing. SB's report was consequently presented to the Tribunal unchallenged. Whilst the Respondent's counsel raised the issue of the Applicant not telling SB about the allegation of sexual assault made against him by a client, there is no evidence as to how this information might have impacted on SB's findings. It is also the case that SB did not have, and indeed could not have had, access to all material before the Tribunal, who has the ultimate task of assessing the level of risk, if any, the Applicant poses to the safety of children. 5. The definition of "child" under the Act is up to the age of 18 years. If an incident of a similar kind to the offence were to be repeated against a young person up to 18 years of age, it could potentially have a significant and damaging impact on the victim. Any information given in, or in relation to, the Application 1. The Tribunal notes the supportive evidence provided by the Applicant about his educational and professional development, as well as his community engagement with charities and volunteer organisations. 2. The Applicant's partner "LC" also provides in her statement evidence of a close and loving relationship. She said that she trusts him and has no concerns about his conduct or behaviour with women or with children. LC provides a strong endorsement of the Applicant but this of course in the context of their marriage-like relationship. Conclusion and orders 1. The Applicant's solicitor referred to the case of BQE v Children's Guardian [2015] NSWCAT 89 and submitted that in the context of this matter, the fact the allegations were not ultimately proved, significantly reduces the weight that can be placed on those allegations as an indication of future risk. However the case of BQE also noted that a finding of not guilty is not determinative of whether the matters complained of did occur and the Tribunal ultimately found that BQE was involved in certain behavior and concluded that he posed a risk to the safety of children. 2. The safety, welfare and wellbeing of children and, in particular, protecting them from the risk of abuse, are the overriding objectives to which the operation of the Act is directed (CJT v Office of Children's Guardian [2016] NSWSC 738). In assessing whether there is an real and appreciable risk to the safety of children Her Honour said in CJT v Office of Children's Guardian [2016] NSWSC 738 that "The submission that an assessment of risk for the purposes of s 18(2) of the Working With Children Act dictates that some actuarial assessment of future risk needed to be undertaken by the Tribunal member (or the Children's Guardian) is to entirely misunderstand both the statutory scheme in the Act and the jurisprudence that has developed as the State and Federal legislatures have responded to the prevalence of child abuse in a wide variety of legislative contexts. The assessment of the risk an applicant for a clearance might pose to the safety of children, when the person has not been convicted of a scheduled offence, calls for an evaluative judgment based on all the information available to the decision maker". 1. The Applicant was acquitted in the District Court but the Tribunal was persuaded by the complainant's evidence that the Applicant's conduct made her feel uncomfortable, threatened and scared and caused her to be distressed. This occurred in her workplace and only relatively recently. The Tribunal was told of another allegation of a sexual nature made by an unrelated woman who was a client of the Applicant. This allegation was also made relatively recently. 2. The Applicant's evidence about why he did not tell SB about the allegation of sexual assault made by one of his clients raised questions about whether it was a deliberate omission in order to present himself in a more favourable light. It is in the context of his stated reluctance to engage in the risk assessment process notwithstanding his frustrations about the way in which the Respondent handled his application. SB said that the Applicant's "refusal to engage in risk assessment is motivated by his desire to protect his reputation, and get on with his life". The Tribunal found the Applicant had little or no insight into the seriousness of the sexual nature of the allegations made against him. Conduct of this kind could have a damaging impact on a child or young person up the age of 18 years especially in a situation where a professional service is being provided, or where there is a professional duty of care for the young person. 3. The supportive material presented by the Applicant does not in the Tribunal's view sufficiently address these issues. The material has led the Tribunal to conclude that that the Applicant poses a real and appreciable risk to the safety of children. The Tribunal carefully considered all the material presented in these proceedings and finds that the correct and preferable decision is to deny the Applicant a WWCC clearance. 4. The Tribunal orders that: 1. The decision of the Respondent to refuse a Working with Children Clearance 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: 06 October 2016