AB v Minister for Community Services

[2001] NSWADT 125

CITATION:	AB -v- Minister for Community Services [2001] NSWADT 125
DIVISION:	Community Services Division
PARTIES:	APPLICANT AB RESPONDENT Minister for Community Services
FILE NUMBER:	004007
HEARING DATES:	30/042001
SUBMISSIONS CLOSED:	04/30/2001
DATE OF DECISION:	08/02/2001
BEFORE:	Hennessy N (Deputy President); Gelin B - Member; Houlahan L - Member
APPLICATION:	Child Care Service Licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Children (Care and Protection) Act 1987
CASES CITED:	McDonnell -v- Minister for Community Services & Anor (19/5/97 Admin Law Div, Supreme Court of NSW, unreported, per Windeyer J Briginshaw -v- Briginshaw (1938) 60 CLR 336
REPRESENTATION:	APPLICANT Mr Henness, solicitor RESPONDENT D Wells, solicitor
ORDERS:	The decision of the Minister to impose a condition on the licence of the Child care Centre that: "the person known as Mr AB is not to be employed in a position that allows contact with children attending the service" is affirmed.

Background
1 Mr AB filed an application with the Tribunal applying for a review of a decision by the Minister of Community Services. The decision was to impose a condition on the licence of a Child Care Centre where Mr AB was working. The condition which the Minister imposed was that:
The person known as AB is not to be employed in a position that allows contact with children attending the service.

2 The imposition of that condition was triggered by a screening process introduced in August 2000 for people working with children. That process led to the identification of notifications of child abuse against Mr AB forwarded to the Department of Community Services (DOCS) in September and November of 1993. These notifications were investigated by DOCS and the Police Service at the time. Some of the notifications were confirmed by DOCS but no charges were laid against Mr AB by the Police Service. Two notifications in particular, in relation to two male pre-school children (Child 1 and Child 2), were the basis of the decision to impose the condition on the licence.

Condition imposed under Children (Care and Protection) Act

3 The condition was imposed pursuant to Clause 7(1) and (2) of Schedule 1 to the Children (Care and Protection) Act 1987. That clause obliges the Minister to serve notice on the relevant parties if she intends to impose a condition on a licence and to consider any submissions made by the parties before imposing a condition.

(1) If the Minister intends to revoke or vary any condition of a licence or authority or to impose a further condition on a licence or authority, the Minister shall cause to be served on:
(a) the licensee under the licence or the holder of the authority, and
(b) the approved person, if any, under the licence or authority, a notice stating that, when 28 days have expired after service of the notice, the Minister intends to revoke or vary a condition of the licence or authority specified in the notice or to impose on the licence or authority a further condition specified in the notice, as the case may be, unless it has been established to the Minister's satisfaction that the Minister should not do so.
(2) When 28 days have expired after notices have been served under subclause (1), the Minister may, after considering any submissions made during that period by the person or persons on whom the notices were served:
(a) revoke or vary the condition specified in the notices, or
(b) impose the further condition, as specified in the notices, on the licence or authority to which the notices relate, by a further notice served on that person or those persons.
4 DOCS wrote to Mr AB on 27 June 2000, before the condition was imposed, advising that the notifications of sexual abuse “specifically implicate you in the allegations and cast doubt on the safety of children in your care at the facility.” In a letter to the Child Care Centre on 7 August 2000 the notifications of child abuse against Mr AB were outlined and the conclusion reached that “on the basis of this information, the Department is obliged to consider whether conditions should be imposed upon the licence of the . . . Child Care Centre.”

5 When the condition was imposed, DOCS did not notify the Child Care Service or Mr AB that they were entitled to a statement of reasons in relation to the decision under s 49 of the Administrative Decisions Tribunal Act 1997 (ADT Act). This legislation has been in operation since 1 January 1999. It is a poor reflection on the practices of DOCS that two and a half years later people affected by reviewable decisions are not being notified of their rights. This failure meant that Mr AB did not request either a statement of reasons or an internal review and neither was provided.

6 After Mr AB made his application, I requested that DOCS undertake an internal review of the decision. An “independent review” was carried out by Gillian McFee on 18 December 2000. The review concluded that “there is enough evidence by way of the number of notifications and the explicit nature of (one particular child’s) disclosure, that give rise to there being significant doubts about the suitability of the applicant to work in face to face contact with children.” While that review contained relevant information, it did not follow the format set down in s 53(7) of the ADT Act. We urge DOCS officers to familiarise themselves with the requirements of the ADT Act and endeavour to comply with them in future.

7 We assume that by referring to the notifications as casting “doubt on the safety of children in your care at the facility” and “there being significant doubts about the suitability of the applicant to work in face to face contact with children” DOCS officers meant to apply the test approved this Tribunal and the Supreme Court. That test is “whether, by not imposing the condition which has been imposed, children at the Centre would be exposed to an unacceptable risk of sexual abuse by (the person in question).” (McDonnell -v- Minister for Community Services & Anor (19/5/97 Admin Law Div, Supreme Court of NSW, unreported, per Windeyer J at 16.) Unfortunately DOCS officers did not characterise their reasons in accordance with this test and Mr AB was not advised in writing prior to the hearing that the precise reason for the imposition of the condition was that he would pose an unacceptable risk of sexual abuse to children at the Centre. Mr AB’s legal representative did not make any specific objection on this ground.

Jurisdiction and standing

8 Under s 40(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 a person may apply to the Tribunal for the review of a decision made by a person or body by or under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision. The relevant decision in relation to this application is set out in s 112(a)(iii) of the Children (Care and Protection) Act 1987, that is a decision to impose a condition on a licence or authority.

9 The condition was imposed on the licence of the Child Care Centre, not on Mr AB personally. In those circumstances the question arises as to whether Mr AB has standing to make an application to the Tribunal.

10 The provisions which govern the standing of a person wishing to be a party to proceedings in the Community Services Division, are found in s 41 of the Community Services (Complaints, Reviews and Monitoring) Act 1993. So far as it is relevant to this case, that section states, that:

(1) An application may be made to the Tribunal by any person who demonstrates to the satisfaction of the Tribunal that he or she has a genuine concern in the subject-matter of the decision concerned.
(6) This section applies despite any contrary provisions of the Administrative Decisions Tribunal Act 1997.

11 Because the effect of the condition is that Mr AB will lose his job, he has a genuine concern in the subject matter of the proceedings. The Child Care Service did not apply to be joined as a party to the proceedings.

Legislation

12 The Tribunal’s role is to determine whether the Minister made the “correct and preferable” decision in imposing the condition. After making that determination, the Tribunal can “affirm”, “vary”, or “set aside” the decision. (See s 63 Administrative Decisions Tribunal Act 1997.)

13 McDonnell -v- Minister for Community Services & Anor (19/5/97 Admin Law Div, Supreme Court of NSW, unreported, at 8) is a case which also involved the imposition of a similar condition on the licence of a child care service. Windeyer J agreed with the Tribunal’s characterisation of its task at first instance. His Honour said that the Tribunal:

. . . considered that there were two questions to be determined. The first was whether the allegation was (a) proved, (b) not proved, or (c) there was insufficient evidence to determine the question. On the ultimate question of whether a condition should be imposed on the licence the Tribunal determined to apply the M -v- M test. It considered, quite properly that in relation to any finding on the issue of whether Mr McDonnell was guilty of the conduct alleged, that the appropriate standard was the Briginshaw standard and that on the question of unacceptable risk the standard was the ordinary civil standard.

14 Given the approval of this approach by the Supreme Court, our first task is to examine the evidence surrounding the allegations of sexual abuse against Mr AB. On the basis of that evidence we must decide whether the allegations are proved, not proved, or there is insufficient evidence to make a finding. That conclusion together with any other relevant information will inform us in relation to the ultimate issue of whether the employment of Mr AB at a child care service poses an unacceptable risk to the children in that centre.

15 In S v. S, (In the Matter of N. Appellant/wife and S. Respondent/husband and the Separate Representative Appeal No. EA 56 of 1995 No. PA 4849 of 1994) Thomas J, referring to the comparable situation of custody and access cases in the Family Court, said at 659:

Allegations in custody and access cases that a child has been sexually abused are not uncommon. They pose an acute problem for the Courts simply because of the difficulty in determining whether the sexual abuse has taken place. This is particularly so in the case of pre-school children. Such children are not likely to be able to provide a coherent account of what, if anything, has happened. In the result, the allegations frequently are neither conclusively proved nor disproved.
In the state of uncertainty which results it would be easy for the Courts to find that the allegations of sexual abuse have not been established to the requisite standard of proof and dismiss them from contention. But to make that finding and no more may result in the child being exposed to an appreciable risk of being sexually abused while in custody or during access visits.

16 In relation to findings about allegations of sexual abuse, the appropriate standard of proof is that set out by the High Court in Briginshaw -v- Briginshaw (1938) 60 CLR 336. In that case Dixon J said at 362:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

17 The standard of proof for the "unacceptable risk" test is the ordinary civil standard, that is "on the balance of probabilities." ( McDonnell -v- Minister for Community Services & Anor (19/5/97 Admin Law Div, Supreme Court of NSW, unreported, per Windeyer J at 8.)

Evidence

18 Mr AB gave evidence that he has been a child care worker for eight years. After completing his Higher School Certificate he obtained a Certificate in Child Care Studies. For six months he worked as a mother craft nurse for under two year olds at a Long Day Care Centre. He worked at an Occasional Care Centre for 2 ½ years. After the allegations of sexual abuse were made he left that employment. He has been working at the Child Care Centre which is the subject of the condition, for 3 years and 3 months. While overseas for a year and a half, he also worked in a child care centre. He then returned to the centre which is the subject of the condition. He had been back for three months when the condition was imposed.

19 Mr AB denied the allegations of sexual abuse when interviewed by the police at the time. He made a lengthy statement. Mr AB denied the allegations again at the hearing. He said that there was insufficient evidence to charge him with any offence and he should not be penalised 6 ½ years after the alleged incidents occurred. He denies that he poses any risk to the safety of children.

20 The applicant did not call the Director of the Child Care Centre to give evidence. She provided a reference dated 20 March 1998. The reference praised Mr AB ability to handle potentially difficult situations positively and professionally. She also noted that he has been a very positive and calm role model for the children, staff and parents at the Centre. Mr Wells for the respondent conceded that the Director knew about the notifications against Mr AB when she wrote the reference. The fact that no complaints have been made against Mr AB during the period of his employment with the Child Care Centre was not disputed.

21 John Gavaghan is the Manager, Client Services at St Leonards Community Services Centre. He has a bachelor of social work and a post graduate degree in social administration. He recommended to the Minister’s delegate that the condition be imposed.

22 Mr Gavaghan gave evidence that the decision to impose the condition was made following requirements introduced in August 2000 for people working with children to undergo certain checks. Officers at the Wyong Office of DOCS knew that Mr AB had been the subject of notifications of sexual abuse in 1993 and 1994. Based on those notifications and the fact that some of them were confirmed, Mr Gavaghan made an assessment that Mr AB was a risk to children.

23 Mr Gavaghan told the Tribunal that he relied on two notifications in particular. A DOCS officer, Ms Shields, interviewed Child 1 twice within the period of a week. He said Child 1 made detailed and consistent disclosures. The disclosures by Child 2 were not as explicit.

24 Mr Gavaghan agreed that DOCS had taken no action to exclude Mr AB from working at the centre after these notifications were confirmed. Mr Gavaghan said that Mr AB’s current employer was very positive about Mr AB’s abilities as a child care worker.

25 Ms Shields is a Child Protection Case Work Specialist with a Diploma in Welfare. She has been working for 18 years investigating and assessing allegations in the child protection area. She was a District Officer when DOCS received a notification in relation to Child 1. She investigated that notification with other officers. That investigation involved interviewing eight children. Her role was to provide support and referral. In relation to Child 1 she told the Tribunal that she played with Child 1 for about an hour and talked about school, home and friends. After some questions about what game he was playing in the cubby house with Mr AB and another child, the following exchange took place:

Shields: Did Mr AB ask you to touch any part of his body?
(the child stood up and pointed to his bottom)
Shields: Can you tell me which part of his body he asked you to touch?
Child: His bottom.
Shields: His bottom?
Child: Yes and here (child pointed to his bottom)
Shields: Do you mean the hole in your bottom, that you use for poo?
Child: Yes, right up.
Shields: Did Mr AB touch any party of your body?
Child Yes, my bottom. (child touched his bottom)
Shields: Did Mr AB do anything else while you were in the cubby house?
Child: a wee wee.
Shields: Did Mr AB touch your body anywhere else?
Child: yes
Shields: Can you show me where?
Child: (child touched his bottom)
Shields: Can you tell me what part of his body Mr AB touched you with?
Child: His hands.
Shields: How did it feel when Mr AB touched you mate?
Child: It tickled.
Shields: Can you tell me what Mr AB said to you when he touched you?
Child: He did a wee.

26 Ms Shields decided to have a second interview with Child 1 about a week later. Similar, but more explicit, disclosures were made during that interview including that Mr AB “Touched my bottom with his mouth when I was doing poo poo” and that the child touched Mr AB’s “doodle.”

27 DOCS officers confirmed the notification in relation to Child 1 and on the basis of the two interviews. Ms Shields said that it was unlikely that either Child 1 or Child 2 were coached because when coached children typically blurt out the information very quickly. She said that these disclosures were not like that. Child 1 spoke naturally and was very articulate. There was nothing to suggest he was lying. On the basis of her interviews Ms Shields did not have any doubt that Child 1 was telling the truth.

28 In relation to Child 2 the disclosures made to his mother and grandmother were that Mr AB had “played” with his penis and done “rude” things to him. Ms Shields also interviewed Child 2 but he did not make any disclosure of sexual abuse. Child 2 was 2 years and five months old at the time and spoke only one or two words at a time.

Findings in relation to allegations of sexual abuse

29 The evidence in relation to the allegations of sexual abuse in relation to Child 1 and Child 2 included records of interview with Child 1 and a notification of abuse in relation to Child 2. Ms Shield’s evidence that she did not have any doubt that Child 1 was telling the truth, was not weakened in cross examination. Mr AB has consistently denied the allegations.

30 On the basis of this evidence, we are not satisfied that the abuse of Child 1 and Child 2 did or did not occur. In our view, there is insufficient evidence to determine the question one way or the other. While the disclosures in relation to Child 1 are explicit, they contain some unlikely allegations. In the first interview, Child 1 said AB touched him “on the bottom” with his hands while they were playing in the cubby. In the second interview he said Mr AB “touched my bottom with his mouth when I was doing poo poo.” Child 1 also said that AB did a “wee wee” while in the cubby house. Child 1 said that if felt “yucky” when Mr AB touched him on the bottom but then answered “yes” to the question whether he wanted to see Mr AB again.

31 The disclosures from Child 2 were made to his mother and grandmother. There were no disclosures made when Ms Shields interviewed him.

32 Ms Howell, a registered psychologist in NSW with a Clinical masters qualification, was asked to assess Mr AB. She administered the Multiphasic Sexual Inventory (MSI). That test is designed to test the psycho-social characteristics of offenders. Ms Howell told the Tribunal that Mr AB is outside the guidelines for this test because he denies the allegations. Consequently some components of the test are not relevant.

33 Ms Howell concluded that Mr AB’s results on the MSI test were difficult to interpret, in part because he responded to only 79% of the questions and denies being a sexual offender.

34 The test consists of 11 scales. Five are validity scales which means that responses to these questions are consistent across the general population. Of those five validity scales, two are irrelevant to Mr AB’s circumstances.

35 Mr AB’s responses to the Social Sexual Desirability Scale indicated that he is not attracted in any way to any men or women. This is contrary to his responses during the interview with Ms Howell when he said that he had been in a stable relationship for 3 or 4 months. Ms Howell concluded that the responses to these questions indicated that Mr AB was “faking good”, that is trying to present himself in a favourable light. This could be explained by being concerned that his responses would be interpreted in a certain way. In relation to the sexual obsessions scale, Mr AB again scored as “fake good”. Ms Howell agreed that if Mr AB is not an offender, this score could be genuine rather than indicating evasive answers.

36 Mr AB scored very low on the child molest scale. Again Ms Howell concluded that because he denied the allegations, it is not possible to say whether he is an offender denying his guilt or an innocent person.

37 Ms Howell concluded that on the basis of her testing, her interview with Mr AB and confirmation of certain notifications by DOCS, that Mr AB was a “greater than average risk to children when compared to other child care workers.”

Applicant’s submissions

38 The applicant’s submissions can be summarised as follows:
· the alleged incidents giving rise to the imposition of the condition took place 8 years ago and no criminal charges were laid;
· Mr AB has worked at four other child care centres since the allegations were made;
· Mr AB’s employer wants him to return to work; and
· in assessing risk it is important to assess whether Mr AB poses an unacceptable risk to children in the future.
Respondent’s submissions
39 The Minister’s submission in brief was that on the basis of the evidence, the Tribunal cannot be satisfied that the children at the centre would not be at risk if Mr AB was working there.

Reasons and decision

40 We must take all relevant factors into account when determining whether Mr AB’s employment at the Child Care Centre would pose an unacceptable risk of sexual abuse to the children at the Centre. Those factors include:
· our finding that the two allegations of abuse on which the Minister relied were neither proved nor disproved;
· the assessment of Ms Howell;
· character evidence from the Director of the Centre; and
· the fact that no complaints have been made to the Centre or to the DOCS since the alleged incidents notified in 1993 and 1994.
41 While there was insufficient evidence for us to conclude that the incidents alleged by Child 1 and Child 2 occurred, there was enough evidence to prevent us from making a finding that those incidents did not occur. The nature of the allegations was sexual fondling (in relation to both children) and oral sexual behaviour (in relation to Child 1).

42 Ms Howell’s view, taking into account the notifications, her interview with Mr AB and the testing, was that he was a “greater than average risk to children when compared to other child care workers.”

43 Mr AB’s employer at the Child Care Centre gave positive character evidence, which was not challenged by the respondent. In addition, no complaints have been made to the Centre of to DOCS about Mr AB’s behaviour in relation to any children since 1994.

44 There are several factors which, in combination, satisfy us, on the balance of probabilities that if the condition was not imposed, children at the Centre would be exposed to an unacceptable risk of sexual abuse by Mr AB. These factors include the specific and consistent nature of the allegations from Child 1, the clear allegation by Child 2, Ms Shields opinion that Child 1 was telling the truth and Ms Howell’s assessment of Mr AB as posing a greater than average risk.

45 While we regret that this effectively means an end to Mr AB’s career as a child care worker, in circumstances where he may be entirely innocent of all the allegations against him, the loss of that career is not a matter which we can take into account.

46 Consequently we make the following order:

The decision of the Minister to impose a condition on the licence of the Child Care Centre that "the person known as AB is not to be employed in a position that allows contact with children attending the service" is affirmed.