BKD v Children's Guardian - [2021] NSWCATAD 303

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: BKD v Children’s Guardian [2021] NSWCATAD 303
Hearing dates: 25 May 2021
Date of orders: 21 October 2021
Decision date: 21 October 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
M Bolt, General Member
Decision:
(1) The decision of the respondent dated 2 September 2020 to refuse the applicant’s Working With Children Check Clearance is affirmed.
(2) The application is dismissed.

Catchwords:
ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – whether reasonable person would allow unsupervised access to their child

Legislation Cited:
Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Children and Young Persons (Care and Protection) Act 1998
Civil and Administrative Tribunal Act 2013

Cases Cited:
ADV v Commission for Children and Young People [2012] NSWADT 8
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 Office of the Children's Guardian [2014] NSWCATAD 111
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336
Children’s Guardian v CKF [2017] NSWSC 893
Children's Guardian v CXZ [2019] NSWSC 1083
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CSW v Children’s Guardian [2017] NSWCATAD 326
CXZ v Children’s Guardian [2020] NSWCA 338
M v M (1988) 166 CLR (HCA)
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
R v Commission for Children and Young People [2002] NSWIRComm 101
Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

Category: Principal judgment
Parties: BKD (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
P Lowson (Respondent)
Solicitors:
McAuley Hawach Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2020/00257835
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

This applicant seeks administrative review of a decision by the respondent refusing his Working with Children Check clearance (WWCCC). The clearance was refused because the respondent (the Office of the Children’s Guardian) was satisfied that he posed a real and appreciable risk to the safety of children.
The applicant (an ordained Priest) applied for a WWCCC on 24 October 2018 seeking the clearance for the nominated area of Religious Services as the relevant child related employment sector. The applicant was verified (as ‘employed’) by his Diocese on 6 August 2020, which enabled the application to proceed. Pursuant to s 15 (4) of the Child Protection (Working with Children) Act 2012 (the ‘Act’) the respondent was required to conduct a risk assessment of the applicant, as there was a disclosed matter in his history which was listed in clause 2 (2) (a) of Schedule 1 of the Act. That matter related to the applicant being investigated in his workplace (the Diocese) concerning an alleged incident where in 1999 he engaged in a conversation with two men, where he discussed having sex with underage boys in South East Asia on a recent holiday.
The workplace investigation occurred in 2008. As a result of that investigation the matter relating to part of the conversation were sustained. The matter concerning the actual sexual activity with the boys was not sustained due to insufficient evidence. The applicant denied both allegations.

Background

The applicant had previously applied for a WWCCC in 2013 and was subject to a similar risk assessment (based on the 2008 workplace investigation), as part of that application process. The applicant’s 2013 application was refused by the Children’s Guardian on 18 June 2014, who found that the applicant posed a real and appreciable risk to the safety and well-being of children. The applicant sought administrative review before the Tribunal in 2014, however prior to the matter being finalised the applicant withdrew his application and the Tribunal administratively dismissed the proceedings.
A person who has been refused a WWCCC cannot reapply for a Clearance within five years of their refusal. (s 13A (1) (a) of the Act). However under s 13A (1) (b) if there has been a change of circumstances as specified in subsection (2), the Children’s Guardian may permit a person to make an (early) application. The applicant sought to re-apply in December 2017, prior to the five year expiry from 18 June 2014. The Children’s Guardian however refused to accept the early application.
A further ‘early’ application was made in September 2018. That application was accepted by the Children’s Guardian in October 2018 and was processed. That application forms the basis of this current administrative review before the Tribunal. As noted above at [2], the applicant was subject to a risk assessment. On 6 July 2020 the respondent sent the applicant a Notice of Proposed Refusal and provided a statement of Reasons for Proposed Refusal. The applicant was invited to make submissions prior to any final decision to refuse the application for a WWCCC. After receiving submissions in response to the notice of proposed refusal, the respondent finalised their assessment and after considering all of the evidence and material they had obtained in the assessment, refused the applicant’s application for a WWCCC on 2 September 2020.
On 3 September 2020 (the day after the refusal) the applicant applied for administrative review by the Tribunal.
The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is no longer a real and appreciable risk to the safety and well-being of children and young persons. However, the Tribunal finds that it cannot be satisfied on the available evidence that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant person was engaged in any child-related work (s 30 (1A) (a)).
As a result of the finding the decision of the respondent will be affirmed.

Further Background

The Applicant in these proceedings is referred to as "BKD". BKD is the applicant's pseudonym used in these proceedings in conformity with the order previously made in the proceedings under s 64 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. BKD is the same pseudonym used in the earlier 2014 administrative review proceedings.

Jurisdiction of the Tribunal

The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature, as set out by the Court when considering s 28 of the Act: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

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.

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.

The Notice of Refusal under s 20 (3) of the Act issued on 2 September 2020. The applicant stated in his application that he was notified of the decision on the same day. On this basis, the application for administrative review filed the following day was lodged within the required period and as a result his application for administrative review has clearly been received within time. The Tribunal has jurisdiction to determine the matter.

The application for administrative review

The grounds of the substantive application (in summary) are:

I believe that the positive evidence which I have submitted has not been fairly used in determining to refuse my Application… #APP294538 .. for a Working With Children Clearance Check.

More detailed grounds were provided in written material submitted by the applicant.
The issue to be decided by the Tribunal is whether on the balance of probabilities the applicant poses a risk to the safety and well-being of children. In reaching this position the Tribunal is required to traverse section 30(1) and s 30 (1A) of the Act and determine the correct and preferable decision. In addition, in reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk. Risk is determined at the time of the decision made by the Tribunal so in that regard the Tribunal is determining the applicant’s current risk.

The working with children legislative scheme

The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.
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: s 4 of the Act.
Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.
The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1)(b) of the Act). A child related role is set out in s 6(3) of the Act.
Other provisions of the Act deal with assessment requirements, which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)). The applicant in these proceedings was subject to a risk assessment as the respondent identified matters listed in Sch 1 of the Act as referred to at [2] and [4] above.
Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions. The section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) A person whose clearance is cancelled by the Children’s Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(3) A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

(8) The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person’s employer.

Section 30 sets out the factors that the Tribunal must consider in determining a review application. Section 30(1) of the Act provides:

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.

In addition if the Tribunal considers that an applicant is not a real and appreciable risk to the safety and well-being of children, the Tribunal must be satisfied that a reasonable person would allow the applicant to have unsupervised access to their children in a work setting, and that granting the clearance would be in the public interest.

Burden of Proof

The jurisdiction of the Tribunal under s 27 of the Act has been found to be protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].
An application pursuant to s 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. However, there is no statutory presumption that the applicant is a risk to children unlike an applicant for an enabling order under s-28 of the Act.
The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42], His Honour said:

'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". ...'

These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.
The remarks have also been cited with approval in 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 also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].
We note that since the cases referred to above ‘risk’ has now been given a statutory definition in Act at s 5B by reference to ‘risk to safety of children’.

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

The hearing

The matter was heard over one full day with the remainder of the matter dealt with on the papers. Due to the COVID 19 pandemic the hearing occurred by AVL and telephone.
The applicant gave evidence at the hearing. No other witnesses were required for cross-examination at hearing.

Written Evidence

Applicant’s written material

The applicant filed a number of written items in support of his application.

Exhibit ‘A 1’: the application for administrative review,

Exhibit ‘A 2’: the applicant’s affidavit sworn 28 October 2020.

Exhibit ‘A 3’ reference from ‘R.C.’ dated 2 October 2020.

Exhibit ‘A 4’ reference from ‘G.T.’ dated 4 October 2020.

Exhibit ‘A5’ reference from ‘L.W.’ dated 15 October 2020.

Exhibit ‘A 6’ reference from ‘J.H.’ dated 21 October 2020.

Exhibit ‘A 7’ reference from ‘P.O.’ dated 28 October 2020.

Exhibit ‘A-8’ affidavit of BKD sworn 25 March 2021 annexing reference from Dr ‘E.M’, treatment / appointment list for BKD and masseur report ‘L.W.’.

The applicant filed written submissions dated 4 May 2021.

Respondent’s written material

The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings under s 31. The respondent also filed detailed written submissions dated 27 April 2021.

Exhibit ‘R 1’ documents produced under s 58 of the Administrative Decisions Review Act 1997 (486 pages).

Exhibit ‘R 2’ further documents produced under s 31 of the Act and summons filed 1 December 2020 (238 pages).

Exhibit ‘R 3’ Affidavit of M L Coory affirmed 20 April 2021.

Brief history of relevant matters

The applicant (BKD) is a Roman Catholic priest residing in regional NSW where he had previously been engaged in parish and pastoral work for his relevant Diocese.
BKD was stood down from official duties by his Diocese in 2013. This action followed a finding of misconduct in 2009 following a workplace investigation conducted in 2008 into earlier allegations concerning BKD. The investigation concerned allegations arising from a report in 2002 by a local resident (complainant 1), who had written to the Bishop outlining concerns that BKD had ‘bragged about using young boys in South East Asia for the purposes of male prostitution’. The complainant also notified the Australian Federal Police (AFP) about the matter.

In 2008 the Diocese reviewed the matter and determined to investigate the allegations. The investigator interviewed two persons, ‘complainant 1’, and ‘complainant 2’. BKD was also interviewed. The 2002 allegations against BKD became more nuanced and clarified as a result of information obtained from the complainants during the 2008 investigation process. At the conclusion of the investigation the investigator made a sustained finding that:

BKD went to the home of the complainant’s in late 1999 for dinner and stayed the night. Whilst at the home BKD engaged in an inappropriate professional conversation with the complainants including ‘I have travelled to South East Asia (or possibly Thailand) where I pay a woman to have sex with young boys.’ (Allegation 1)

The following allegation was not sustained:

On at least one occasion in 1999 and possibly year’s prior and since, BKD had travelled to South East Asia where he sexually assaulted one or more boys under the age of sixteen years. (Allegation 2)

BKD was removed from ministerial duties in November 2013. Prior to this decision, in July 2013 the applicant had applied for a WWCCC as his work was deemed child related work (including pastoral work requiring the Guardian’s approval via a clearance). As a result of the sustained finding the respondent conducted a risk assessment and made a decision in June 2014 to bar BKD from working with children under s 20 of the Act.
BKD commenced administrative review proceedings in the Tribunal in July 2014 seeking to overturn the decision to refuse the WWCCC. However in August 2014 BKD withdrew those proceedings. The relevant procedural history leading to the current 2018 application is set out at [5] and [6] above.
As part of the risk assessment process on the current 2018 application, the respondent obtained further material from NSW Police, some of which is outlined further below.

BKD’s evidence at hearing

In evidence in chief BKD adopted his two affidavits as true and correct.
In cross-examination BKD was taken to the record of interview in the workplace investigation from 2008. He was taken to the reference to the conversation with the complainants which encompasses the sustained finding. BKD said that he could not recall having such a conversation but said that a reference to his accommodation (the Siam Bayshore) was accurate because he did stay there whilst overseas and that it had been recommended to him by the travel agent.
In response to questions about the sex trade in South East Asia BKD said that he could understand why it was so rampant, as there was no social welfare system in those countries. When taken to a letter that he wrote to his Bishop in 2008 in response to the allegations, BKD was asked what he meant by the reference to the allegations being part of a ‘vendetta against me’. BKD conceded that that between 2000 and 2008 only the one letter of complaint and a separate matter where complainant 2 told complainant 1 that BKD had ‘made a move on him’ had transpired. Whilst BKD accepted that this did not amount to a vendetta by Complainant 1, he also denied making any move on complainant 2.
BKD was asked about his submission (at pages 295 – 334 of ‘R 1’). He said that he wrote it himself. The submission was by way of a response providing comment to the matters raised in the respondent’s documents. At Page 316 is a reference to the sex trade around the resorts where BKD stayed and how the introductions work and payment is made. In cross-examination BKD was asked why he raised these matters with the respondent. He said that he was just telling them about the tourist experiences and did not accept that these detailed explanations indicate that he was engaged in sexual activities with adults. In cross-examination he could not recall all of the matters that are recorded in his submission as set out on 315 and 316 of ‘R-1’.
BKD was taken to a letter that had been sent to the AFP in 2013. The letter concerned the Bishop’s decision to suspend BKD from his official duties. The letter was critical of the Bishop and his actions. The letter at 148 of ‘R-2’ had the sender / author redacted. BKD said that he knew who sent it, he had not previously seen it but knew it would be sent. BKD was questioned about his knowledge of a person with the surname Baker who was from the USA. Mr Baker (a former Catholic Priest) had been imprisoned in the US for offences against children. BKD said that he knew Mr Baker and agreed that he had visited him in prison in the US. He said that he had also visited him prior to his incarceration. He said that he had met him whilst on sabbatical in the US. BKD denied that he had met Mr Baker in South East Asia.
In cross-examination a series of questions were put to BKD. When asked in evidence whether he engaged in sexual activities with children with or without Mr Baker, BKD denied that he had. When asked if he visited Mr Baker in jail because their relationship was close BKD agreed. BKD said that he first found out about allegations against Mr Baker sometime after December 1986. When asked whether he had told Mr Baker about the 2008 allegations against him, BKD said that he had advised Baker by email. BKD was asked whether Mr Baker had come to Australia and visited him. BKD confirmed that he had. Mr Baker had initially told BKD about the serious allegations against him after he had informed the Cardinal in the US.
BKD was asked whether he was still friends with Mr Baker and BKD confirmed that he was. He said that Baker now lives part time in Central America and part time in Nepal. BKD said that he last saw Mr Baker face to face in Nepal in 2004.
BKD was asked about Mr Baker’s living arrangements and he said that Mr Baker cannot obtain residency in any country because of his criminal record. BKD said that Mr Baker does not talk to him about child abuse matters, but talks about other subjects. Counsel asked BKD why this was the case. BKD said that it was none of his business and he assumed that Mr Baker had ‘learnt his lesson’.
BKD was asked again when he last saw Mr Baker and what his most recent trips overseas entailed. He said that (as stated) it was 2004 in Nepal when he last saw Mr Baker face to face. BKD had been to Thailand in 2005 for 28 days, the USA in 2007, the USA in 2012 and the USA in 2014.
BKD admitted (when questioned) to visiting the USA and Canada at the time that Mr Baker was there, but did not admit to seeing Mr Baker during those visits since 2004.
BKD was asked about another allegation whereby he had allegedly told a neighbour in 2016 (in relation to a broken boundary fence) that he was ‘a sexual predator so you better fix that fence if kids are moving in.’ BKD denied making this statement. Also in 2016 Police were called and reportedly observed BKD sitting naked on the lounge through see through curtains. Police reported that BKD would have been visible through the curtains from the street. After Police were admitted to BKD’s residence he is alleged to have told them that he was on the telephone to a priest who was being charged by the DPP. BKD denied these matters and his Solicitor objected to the receipt of some of their written evidence (Pages 209-271 of Exhibit ‘R 1’) as BKD was not able to cross-examine those persons on their recorded evidence. The Tribunal dealt with these and related objections by BKD’s Solicitor noting that submissions as to weight could be provided at the end of the evidence, which was acceptable to BKD.
When asked about his knowledge of the matter involving the Priest referred to in the Police report, BKD said that he learnt about the matter from the Bishop. He understood that the Priest was charged and underwent three trials eventually being convicted of two of the 27 charges relating to child sex offences and given a custodial sentence. BKD denied that he had told attending Police that he was on the phone to that Priest at that time.
BKD was asked whether he gave evidence at the trial of the priest. He said that he did not give evidence. When asked if he was still friends with the Priest BKD said that he was.
BKD told the Tribunal that the Police asked whether he told the Real Estate Agent that he was a sexual predator (as opposed to allegedly saying it to the neighbour). BKD said that in answer to their question he told attending Police that he was not a sexual predator.
BKD was asked about observing children at a Skate Park on the north coast, where he had come to Police attention in December 2017. BKD denied that anything inappropriate was going on and said that he was visiting his masseur.
BKD was taken a Police COPS Event / report at page 4 of Exhibit ‘R 2’ which dealt with the circumstances of a deceased person in early 2020 where BKD was present. BKD was described in the COPS Event as a Priest working as a social worker with a person ‘R.B.’ who was a sex worker. BKD had contacted Police as a witness to the death of ‘N.C.’ who had been a client of ‘R.B.’. In a later entry by Police BKD is described as being in a casual relationship with ‘R.B.’ whom he had met on the dating app Grindr. BKD said that he had not previously seen the Police report even though it had been served on him.
BKD advised that he was only at the location when Police arrived as he was trying to recover his rings from ‘R.B.’ who he believed had stolen them. BKD said that there was an Opal ring and a Maltese Cross ring. BKD described ‘R.B.’ as a heroin addict who had been found to have lied to him. It was put to BKD that ‘R.B.’ was a male sex worker. BKD said that at the time he had known ‘R.B.’ for one to two months. When asked whether BKD had sex with ‘R.B.’ he said he did not have sex with him. BKD was taken to a further report whereby he told Police that ‘R.B.’ had stolen his car. BKD admitted that he told a psychologist that he identified as homosexual and that he was sexually attracted to men in their 30’s and 40’s. BKD said that he took ‘R.B.’ with him and had offered to go to a north coast town with him because ‘R.B.’ told BKD that he was no longer using heroin and was now on methadone.
BKD was asked about where and how he had met ‘R.B.’ The Police report at pg 3 of Exhibit ‘R 2’ said that BKD had made a report to police about his stolen car. As part of that report it referred to the two having met via Grindr in October 2018 and that there was a casual sexual relationship. BKD denied in his evidence at hearing that there was ever a casual sexual relationship between himself and ‘R.B.’.
BKD was also questioned about the circumstances of ‘R.B.’ moving into his residence for a short period, and the theft of his vehicle and personal items. BKD told the hearing that he had reported the matters that Police had recorded at page 3 of ‘R 2’ but that the description of ‘R.B.’ being a heroin addict was not accurate at that time.
In respect of the reference to having met ‘R.B.’ on the Grindr App, BKD was asked if the App is used to meet people for a sexual relationship. BKD said that ‘it is used to meet gay people’. BKD reiterated that he had never had a sexual relationship with ‘R.B.’ but that he had met him via the Grindr App.
BKD was asked about his early re-application for a clearance (WWCCC) and told the hearing that he sought the clearance at that time because his brother was ill and was concerned that he would soon die. He wanted to be able to administer the sacraments for his brother and also celebrate his funeral if it came to that. In this context BKD was asked about the restrictions placed on him by the Diocese. He said that because of the sustained finding from 2008 he was removed from Parish duties in 2012. BKD said that the reason that he was stopped from performing parish duties was because he had spoken publically about a Deacon who was under some sort of cloud. BKD said that if granted a clearance he would not seek a Parish as he was turning 80 that year and believed that he would be too old to take on a Parish. He said that as a Priest he would only seek to celebrate masses.
In re-examination BKD was asked whether (if granted a clearance) he would work in a school environment. BKD said that he would not and that was because he has retired from Parish duties.
BKD was taken back to his evidence concerning Pg 425 of Exhibit ‘R 1’ where there was a reference to BKD attending and conducting a funeral service on ‘XX’ August 2014 after he was relieved of parish duties and absent a WWCCC. BKD said that he ‘concelebrated the service’ and denied that he was the lead Priest or conducted the service. BKD also clarified the evidence at Pg 300, 301 and 483 of ’R 1’ in that he withdrew his NCAT application because he never believed that he would have a favourable reception whilst the then Bishop remained in charge of the Diocese.
The Tribunal asked a number of questions of BKD consistent with the provisions in s 36 of the CAT Act. BKD was asked to clarify how many International trips he had undertaken in the period referred to in his written statement beginning at page 315 of ‘R 1’. He said that he had 13 International trips in an eight year period.
BKD was asked about the concelebrated funeral in August 2014. He said that it was the funeral of a Mercy Sister (Nun) who he had worked with for many years and knew well. After the complaint where this matter was reported BKD said that the Bishop wrote to him and let him know that con-celebration was not permitted.
BKD provided some evidence in response to the Tribunal’s questions about the impact of the bar on his means. BKD said that as a Priest he was on a Church stipend and also was given a car, but that when he said mass Priests would receive a further stipend for this duty.
The respondent asked some questions of BKD arising from the Tribunal’s inquiry. BKD was asked about the con-celebration and that he knew that he could not conduct a mass himself. BKD said that in his view the issue was not clear.
BKD maintained that the Bishop had sent a negative report about him to the Children’s Guardian.

BKD’s submissions

Both the applicant and respondent provided written submissions. Oral submissions were made at hearing. BKD submitted that he came before NCAT as a 79 year old man with no criminal charges. BKD submitted that the alleged matters concern a conversation which occurred 20 years ago and that the Tribunal should have great caution in in accepting the matters as true on the available evidence.
BKD submitted that it had been a long time since the alleged matters even arose, and that there were no identified victims (even to the specific allegations against him). BKD submitted that he rejects that there can be any basis that his homosexuality counts against him in respect of his risk to children and his ability to obtain a WWCCC generally.
BKD submitted that if a clearance was granted his permissible duties would entail him being on the altar and as such would be highly visible. BKD submitted that there are no actual offences in his past, merely innuendo. BKD submitted that consistent with the evidence at pg 391 of ‘R 1’ he has the support of his current Bishop (letter to BKD’s lawyers dated 26 October 2017).
BKD referred to the report of Dr Rodriguez who provided a report in July 2018 at the time he was preparing to lodge his current application for a WWCCC. BKD noted that Dr Rodriguez’s report made the following reference at pg 35 of ‘R 1’:

In my opinion (BKD) does not require any treatment for a sexual disorder due to the lack of evidence of a paraphilic disorder.

In my opinion father (BKD) does not require supervision or special restrictions on his employment as a priest due to his low loading of risk associated with sexual offending’,

BKD referred to his personal references in submissions and submitted that the 1999 allegation (concerning the conversation about sex in South East Asia) was inconsistent with his character as indicated by the personal references submitted to the Tribunal. BKD noted that he had been working with children for approximately 60 years and there had been no reported issues.
BKD made a submission that to make an assertion that someone who went on holidays in a certain part of the world is a risk to children is so broad that it should carry no weight. The Tribunal asked BKD‘s legal representative what submissions if any they wished to make concerning s30 (1A) of the Act namely that a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work. In response BKD took the Tribunal to the reference of ‘M.B.’ at Pg 41 of Exhibit ‘R-1’, where a teacher who has known BKD for over 20 years and also as a parishioner indicated that neither she or her husband or her children expressed any concerns about BKD’s behavior around children.
BKD submitted that the submissions and references attest to his 60 years of nil allegations or complaints made about him in respect of children. BKD submitted that these matters coupled with Dr Rodriguez’s report indicate that he is not a risk to children and that the Tribunal should grant the application.

Respondent’s submissions

In oral submissions the respondent noted that none of the referees relied upon by BKD were aware that he had maintained a friendship with a Priest who was convicted and imprisoned as a result of being found guilty of significant child sexual offences.
The respondent submitted that in his evidence BKD said that he did not know any other paedophile Priests, but later in cross examination admitted that he had made contact with the other (Australian) Priest who at the time was facing charges and prosecution by the DPP and subsequently convicted of two of the 27 chargers. The respondent submitted that none of BKD’s referees would have been aware of these matters.
The Respondent submitted that the workplace investigator preferred the evidence of complainants 1 and 2 concerning the 1999 conversation about paying a woman to have sex with young boys in South East Asia. The respondent submitted that the Tribunal is left with an entirely unclear view as to the situation. Two members of the community had made detailed allegations which had been partly sustained. BKD had given evidence that there were discussions about adult sex and Viagra. It was submitted that the 2020 recollection being better than a 2008 recollection (as was submitted by BKD) is against human experience.
The respondent submitted that the their investigation officer’s case notes at pages 435-438 of ‘R 1’ were at times at odds with the evidence BKD gave during the hearing. BKD tells the officer that he used Viagra at the time but then told Dr Rodriguez and the Tribunal that he was not sexually active.
The respondent noted that whilst BKD purportedly only sought a clearance to be able to celebrate mass and perform funerals, the Tribunal could not grant a conditional clearance, and if a WWCCC was granted, BKD would be free to work with children unsupervised in any capacity or context in NSW.
The respondent submitted that a reasonable person would not allow BKD to work with their children. Reference was made to CSW v Children’s Guardian [2017] NSWCATAD 326 where the Tribunal stated at [136]:

In our view a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. As in the Victorian cases in our view a reasonable person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk. Particular regard would be had to the unchallenged expert evidence (notwithstanding the respondent’s submissions as to weight).

In the current matter the reasonable person would be aware of the evidence before the Tribunal including the documented evidence of Complainants 1 and 2 of the conversation by BKD, BKD’s denial that the conversation occurred, BKD’s denial of engaging in sexual activity with underage children, BKD’s overseas travels, BKD’s character references (including their limitations), and the COPS Events detailing the ‘sexual predator’ conversation, looking at naked males on an ipad in an airport terminal in a public area, BKD being referred to as a priest working as a social worker with sex worker ‘R.B.’, BKD being a witness to the death of a client of ‘R.B.’, and being described as being in a casual relationship with ‘R.B.’ who BKD met through the dating app Grindr.
The respondent submitted that it would be open to the Tribunal to find that a reasonable person would not allow their children to have direct contact with BKD, contact that was not directly supervised. In concluding the Respondent neither consented nor opposed a determination that BKD poses a risk to the safety of children.

Consideration

Having considered the evidence and submissions we will now consider the mandatory considerations in determining the matter in the way provided for under the Act.

Section 30 (1) considerations

Section 30 of the Act sets out the factors that the Tribunal must consider in determining a review application. We shall consider each in turn.

(a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.

BKD’s application to the Tribunal is brought about by an adverse risk assessment. There are no offences disqualifying BKD from obtaining a WWCCC. The adverse risk assessment as triggered by the respondent’s knowledge of a previous workplace investigation and previous 2013 application for a clearance being refused in 2014. Those decisions focus mainly on the allegations reported by complainant 1 and complainant 2 that BKD talked about inappropriate sexual behaviour in South East Asia with underage boys. Despite surveillance by the AFP no direct evidence was obtained that BKD engaged in the behaviour reported.
Since that time and the workplace investigation one of the complaints is deceased (2015) and the other cannot be located though ordinary public search methods. When the same allegations were before the Tribunal in 2014 when the witnesses were available, BKD chose to withdraw his application so the matters were not examined further at that time. We do not find that the presence of the complainant’s was the basis for BKD withdrawing his application. We merely note that they were previously available to the Tribunal in earlier identical proceedings.
The refusal and risk assessment also concerned information from NSW Police that BKD was able to be observed naked from the street sitting in his residence talking on the telephone. In 2015 AFP officers patrolling Cairns Airport Domestic Terminal received a complaint from a member of the public that BKD was viewing naked male images on his iPad in a public place. AFP officers approached BKD who at the time was observed to be looking at an image of a naked male lying facedown on a bed.
There were also references to photos in BKD’s residence of him hugging young Asian children. BKD denied that he has any photos of this nature.

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

It is clear that the matters referred to under s-30 (1) (a) cover a period of time in the 1990’s. A number of subsequent allegations have come to light which the respondent submits identify risk to children. The ongoing relationship with former members of the clergy convicted of child sex offences both in Australia and overseas has persisted. BKD’s relationship with ‘R.B.’ and his coming to adverse Police attention in that context. BKD allegedly being observed by Police watching boys playing at a skate park in a northern NSW coastal town. BKD denies that he was watching the boys and says that he was waiting to see his treating professional whose rooms were nearby.
Since his WWCC application was refused in 2014 BKD has not been able to work with children, so the most recent eight year period his conduct in respect of working with children is not assessed on any known evidence. Other than the matters outlined above, (none of which have resulted in any formal police action) nothing else adverse has arisen. However since the initial allegations as referred to in s 30 (1) (a) were made, BKD has been subject to a sustained workplace investigation, suspended from official priest duties in his Diocese, and refused two applications for a WWCCC.

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

The allegations concern inappropriate and / or criminal behaviour with underage boys. The age of other persons referred to in allegations is unclear.

(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.

In respect of the trigger matters the victims (if established) were children under the legal age of consent. BKD is a Catholic Priest and would have authority over children at relevant times. In that regard any victims would be especially vulnerable.

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

At the time of the alleged trigger offences (arising from the underage sex allegations) BKD would have been 57 years old.
It is unclear whether the allegations occurred in substance, and as such it is also unclear whether the victims would have known that BKD was a Priest. Clearly if they occurred the applicant was a middle aged man and the victims were young children, possibly coerced by a third party. The relationship would have been one of power over the victims rather than any ongoing relationship based on trust. BKD was a westerner and the alleged victims were Asian children. This (in a tourist area) in our view would create a further power imbalance.

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

The alleged victims were boys under the age of consent. Whilst the jurisdiction and age rules in that country are somewhat unclear, as is the actual ages of the children, BKD would have clearly known that any victims were children.

(g) The person's present age.

BKD was 79 years old at the time of the hearing. The relevance being that offending (including sexual offending) generally declines with age and significantly past middle age.

(h) The seriousness of the person's criminal history and the conduct of the person since the offences occurred.

BKD does not have a criminal record or any criminal history beyond the matters set out in these reasons. He does have police records concerning the matters as set out above, which caused the risk assessment. There is no evidence of any adverse matters of a formal nature coming to attention since those matters other than ongoing matters reported over the last 20 years as set out above.

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

BKD provided an Expert Report which made a statement that in respect of BKD that:

In my opinion (BKD) does not require any treatment for a sexual disorder due to the lack of evidence of a paraphilic disorder.

In my opinion father (BKD) does not require supervision or special restrictions on his employment as a priest due to his low loading of risk associated with sexual offending’,

The report states that BKD’s current psychological functioning is impacted by trauma relating to the bar on priestly activities, depression for which he is medicated, and being distraught after 48 years of blemish free service to the Church. Reference is made to a level of depression since 18 years of age, a breakdown in 1982 and subsequent medication broadly since that time.
The author noted that BKD believed that the delay between the complaint and the workplace investigation in 2013 was due to the Bishop reacting to the McClelland Royal Commission into Institutional Child Abuse. The author noted BKD’s recollection of the comments concerning the central allegation as no more than:

Women and children turned to the sex industry because there is no social security in Thailand and they had to find some means to survive.

The report author found no evidence of memory decline or dementia which might blur recollection of past events following testing. In addition to the comments at [99] above, the author opines that BKD’s current psychological functioning puts him into the low risk category for committing a sexual offence. This opinion is based on the fact that BKD:

has not been charged for a sexual offence against a child in Australia and there is no forensic information that (BKD) has committed sexual offences against a child in Thailand or any other country. …

Furthermore another risk factor in sexual offending is the presence of antisociality. Similarly (BKD) does not meet DSM-5 criteria for an Antisocial Personality Disorder.

The author notes that the allegations cannot be tested further and that there is no way to establish that the alleged statements were or were not made by BKD.
The author concludes that the allegations:

Would not be sufficient to reject (BKD’s) Working With Children application.

The author goes on to note that in his opinion BKD requires the prescription of antidepressants, as his risk of relapse into bouts of acute depression is high. In addition the care of a Psychologist or Psychiatrist is also recommended to reaffirm his cognitive responses to negative experiences. The treatment is recommended fortnightly for at least 12 months.
The author also states that in his opinion BKD does not require supervision or special restrictions on his employment as a Priest due to his low loading of risk factors associated with sexual offending.
In our view the report clearly carries some weight, but we also note that whilst the report writer had significant material before him, he did not possess the same amount of material as was provided to the Tribunal.
The respondent submitted that the evidence that BKD maintains a relationship with former Priests who have been charged and convicted of child sex offences both in Australia and overseas illustrates that there remains a risk that BKD may have engaged in underage sexual activity in his trips outside Australia.

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

There is no relevant evidence or matters to consider under this criterion.

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

BKD tendered the report of Dr Rodriguez referred to in the paragraphs above. He indicated to the Children’s Guardian that he would furnish a further report but the Tribunal understands that BKD elected not to rely on a further report. BKD relied on a number of character references in support, and the expert report. The applicant also gave evidence under cross examination at hearing. This material has been set out in some detail above. As we have already found, whilst the references carry some weight, they do not carry significant weight. It appears from the applicant’s submissions that two of the references were designed to assist the applicant in overcoming the issue under s 30(1A) of the Act, concerning how a reasonable person would view the applicant in light of his evidence. We note that the referees in Exhibit’s ‘A3-‘A-7’ are unaware of BKD’s ongoing relationship with two former Priests who have been convicted in Australia and Overseas of child sex offences.

(j1) Any relevant information in relation to the person that was obtained in accordance with section 36A.

There is no material obtained under s 36A.

(k) Any other matters that the Children's Guardian considers necessary.

The respondent’s concerns in their post hearing submissions are set out above.

The statutory approach

The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Like the facts in BKE, certain matters in the current case were not settled, in that the Courts had not been a position to make any positive findings on the conduct and the applicant.
At pars 29 - 33 of BKE the Court observed:

29. In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

30. Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at p 70).

31. In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

32. The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

33.The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. 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.

It is accepted that where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 at p362. (See BKE above at [33]). That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities. Our substantive role is to assess risk, and whether specifically the applicant poses a risk to the safety and well-being of children and young people. We have based our consideration on all of the evidence given by the applicant at hearing (and in documentary form), and for this reason we have set out above some of his evidence at hearing.

Findings

The necessity to make findings on adverse matters was set out in part in BKE and further addressed in the case of Office of the Children’s Guardian v CFW [2016] NSWSC 1406. In that case His Honour Harrison J said that the first proposition is to determine whether a positive finding can be made or whether the allegations can be quickly addressed as groundless. If a positive finding can be made then that matter will generally have a decisive impact on the outcome of the application. In CFW the Court also referred to a lingering doubt where a positive finding could not be made and the matter was left open. The Court observed that this would count against the applicant.
However, in the case of Children’s Guardian v CKF [2017] NSWSC 893 Davies J observed that the final proposition from CFW cannot be correct. At [56] the Court observed:

56. With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or “a lingering doubt or suspicion” counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children.

We note that all of the allegations, and to the extent they import levels of criminality, were refuted by BKD. He and his Solicitor took some issue with how he had been treated by the Diocese, singled out by his Bishop and now blocked by the Children’s Guardian on two or three occasions over the last ten years. BKD emphatically denied any of the adverse matters of a serious nature in his sworn evidence at hearing.
In respect of the criminal allegations in our view it was not possible to test that evidence further in the scope of the hearing. One of the complainants is deceased and the other could not be located - having regard to the sworn evidence of the respondent (Exhibit ‘R 3’). BKD denied the allegation in his evidence at hearing and would be likely to continue to deny the allegations irrespective of what evidence the surviving complaint might have given could they be located. It is clear from Exhibit ‘R 3’ that the respondent sought to locate and if necessary obtain updated evidence from the surviving complainant.
We have decided that we do not need to embark further on an examination of the evidence of each allegation and make findings. This is particularly so when we are unable to test the evidence further. Whilst there are significant matters amounting to allegations of conduct of concern, BKD’s explanation for many of the issues is that they did not occur. In respect of the allegations about how he lives his life and the company that he keeps, BKD submits that these matters are of no significance and are not of relevance when considering whether the should be granted a WWCCC.
In our view, the real issue from a risk assessment perspective is the nature, similarity and frequency of the matters over an extended period of time. We accept that when one looks at the period of time (over 25 years) the ‘adverse matters’ are spread out.
BKD’s homosexuality or homosexual preference is not a matter that stands against him. His faith and his vow of celibacy were stated in his evidence. Whilst he might regard himself as homosexual (based on his stated preference to his expert concerning sexual attraction), those matters are in no way indicative of risk. BKD’s evidence was consistent that other than being abused as a 13 year old boy he has not engaged in any sex based practice with another person, penetrative or non penetrative. No weight attaches to BKD’s stated sexual preference on the evidence before the Tribunal. However the contradictory evidence about Viagra use and lack of sexual activity limits BKD’s credibility.
In our view there is no need to make positive findings on every allegation. In that regard we adopt the position we set out by the Court of Appeal at [126] below were a rote consideration of each matter is not required, rather a consideration of what can be ascertained in the context of risk.
We are therefore of the view that some lingering doubt or suspicion remains concerning the applicant’s actions and or intentions. That doubt must then be assessed in the overall context of risk. If a reasonable person was asked to adjudge the matter, having passed the risk issue and arrived at s 30 (1A), we believe that having viewed all of the evidence and material, they would have significant concerns about letting the applicant have unsupervised access to their children. This concern mainly arises in the context of BKD maintaining a relationship of friendship with men convicted of child sex offences.
In the case of CXZ v Children’s Guardian [2020] NSWCA 338 the Court considered the protective rather than punitive nature of the Act and the working with children scheme.
At [46] of CXZ in reference to the High Court’s approach in M v M, Simpson AJA observed:

46. In the High Court the allegations of sexual abuse were treated as “central to the case” (p 71). The Court recognised, however, that (in circumstances where the relevant legislation enjoined the court to regard the welfare of the child as “the paramount consideration”), the court could not be “diverted by the supposed need to arrive at a definitive conclusion on the allegations of sexual abuse” (p 76). In that context, the Court said (p 77):

“No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegations as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. ...

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.”

The paramount consideration therefore remains in determining matters to the welfare of children and not being focused on determinative conclusions about specific allegations.
Our substantive role, to assess risk, and whether specifically the applicant poses a risk to the safety and well-being of children and young people must be determined in a holistic manner. We have based our consideration on all of the evidence provided at hearing and in documentary form.
As the task of the Tribunal is to determine risk, then consideration of allegations and the need to make findings about them is relevant only to that task. Risk is to be assessed in respect of the present and future not an applicant’s past risk to children. However past behaviour can be an indicator of future behaviour being a concept accepted by criminal courts in sentencing.
The case of Children's Guardian v CXZ [2019] NSWSC 1083 (which if the precursor to the Court of Appeal case of CXZ outlined above), addressed the matter of how the Tribunal should consider risk when there are numerous adverse matters, or issues which were given weight in determining that an applicant or holder of a clearance was a risk to the safety and well-being of children.
At [294] in Children's Guardian v CXZ [2019] NSWSC 1083 the Court observed that the Tribunal needs to consider the cumulative effect, and to do so in the following manner.

294. It is true that the Tribunal addressed in its conclusions, particularly at [147]-[148], aspects of allegations 2, 3 and 4. However the analysis was confined to, largely, whether CXZ was engaged in particular conduct described in those allegations and not as to the risks posed to children from these findings (although the Tribunal recognised that the children witnessing the violence was detrimental to them). Of even greater significance was the failure of the Tribunal to evaluate the cumulative weight of its various findings, that I have found were made, as to risk (the third stage of the inquiry) for allegations 2, 3 and 4 in its concluding assessment as to risk (or perhaps even as to the particular risks that I have found the Tribunal to have considered when dealing with each allegation individually).

295. This is not to suggest that the concluding remarks do not give consideration to the assessment of risk based on current circumstances as discussed in [148] based on, for example, the approach taken by the Family Court (or later the opinion of experts as to current risk) but this does not bring to account what aspects of the earlier allegations’ and findings as to risk in that respect should count for in the mix of these factors. For example, the Tribunal refers in [148] to the violence between CXZ and his second wife as being “no longer ongoing” (which specifically relates to allegation 3 and the second element of allegation 4), but does not address how any risks said to arise in that context are to be evaluated cumulatively or otherwise in the final conclusions. The focus of attention appears to be on whether the allegations were made out and whether there are current factors which would indicate the absence or mitigation of risk.

In these proceedings we find that the main issue as to risk concerns BKD’s behaviours in respect off the company he keeps, convicted child sex offenders and (‘R.B.’) who he met via a gay sex dating app. He was present according to Police records when a deceased client of ‘R.B.’ was located. BKD’s evidence was that he had met ‘R.B.’ socially through Grindr, and the relationship did not arise through any professional or official context. Whilst these matters may not enliven significant risk issues, they are relevant to the reasonable person test.
Of greater concern is the evidence of BKD maintaining a friendship with convicted child sex offenders. We observe that BKD appeared to believe in his evidence at hearing that as long as he was not directly impacted in any inappropriate or unlawful behaviour, then there was no risk posed to or by him. The situation whereby he visited and had contact with convicted offenders both during and in other instances after their sentence in our view shows a lack of understanding in respect of potential future risk. It is one thing to provide pastoral care to a person in a difficult situation arising from their own wrong doing. However in our view it is another thing to maintain a friendship with such a person. That goes beyond the objective advocacy of a person with support and pastoral needs and blurs the boundaries into the realm of developing a subjective view or consideration of the person (and possibly their behaviour).
Where that view is positive it is our position that this creates some level of risk. Even if the level of risk is not sufficient to meet the standard required under s 30 (1), we believe that it would cause significant problems in respect of the threshold that BKD must traverse under s 30 (1A).
For that reason our focus is not so much on whether matters were made out (as referred to at 295 of CXZ above), but the import of the applicant’s behaviour and how it points to current and future risk.
When the totality of matters are considered is the risk greater than the risk of any adult preying on a child?
Based on a consideration of all of the evidence, we are not satisfied that BKD currently poses a real and appreciable risk to children as referenced by Young J in ‘V’. In our view, on the evidence and material before us, and having regard to the weight of evidence, based on consideration of all the circumstances as set out above, we find that BKD does not currently pose a risk to the safety and well-being of children and young persons.
In our view the risk is currently no greater than that of any adult harming a child, in converse reference to the observation of Young J in the case of ‘V’, at [42].

We note in making this preliminary finding that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act.
In reaching this position we note that it is a protective jurisdiction, and that the interests of the safety and well-being of children override any other interests. However that is not the end of the matter. As outlined above we have significant concerns about how the reasonable objective person would view many instances of BKD’s behaviour.

Section 30 (1A) consideration and findings

The section requires the reasonable person to allow his or her child to have direct contact with the affected person that was not directly supervised by another person whilst engaged in child related work. In addition, the section requires that the making of the order be in the public interest.

(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.

Having made the finding that we have, we are required to have regard to this section before we consider making an order under Part 4 of the Act which has the effect of enabling a person (the affected person) to work with children in accordance with this Act.
If an applicant traverses s 30 (1A) (a), then the Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order.
The matter of BKD’s behavioural antecedents was a live issue in the hearing and addressed above concerning risk. There was significant evidence by both BKD and the Police material that ‘R.B.’ was a criminal. In our view if a reasonable person was to review the evidence adduced at [56] – [60] above and also the written Police material, they would have significant concerns about BKD having unsupervised contact with their child.
Likewise the evidence adduced at [45] – [50] and [52 – [53] above would in out view cause the reasonable person to have significant concerns (for the reasons we set out at [133]), to allow BKD to have unsupervised access to their child.
In the case of CSW v Children’s Guardian [2017] NSWCATAD 326 the Tribunal considered the s 30 (1A) issue. At [136] – [140] the following was stated:

136. In our view a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. As in the Victorian cases in our view a reasonable person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk. Particular regard would be had to the unchallenged expert evidence (notwithstanding the respondent’s submissions as to weight).

137. A reasonable person whilst approaching the manner with some caution would in our view find that any risk was insufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A).

138. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 recently dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:

73. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

139. In CSW’s situation a reasonable person would be aware of the circumstances of the evidence of the incident before us, the applicant’s background as a refugee and trauma survivor. In addition the time since the involuntary admission, her current functioning and unchallenged caring for her infant child would all be considered.

140. As a result, we find that a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work.

In New South Wales the Act was amended in recent years to require that a reasonable person be further satisfied of a lack of risk, as demonstrated by that (reasonable) person being content to 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. It is clear for a number of reasons that we have outlined that the matters concerning BKD’s ongoing relationship and friendship with convicted child sex offenders, irrespective of his views on their innocence or otherwise, would cause concern for the reasonable person.
Whilst the reasonable person (like the Tribunal) might find that BKD does not pose a risk on the s 30 (1) criteria, weighing those matters into the mix with the s 30 (1A) test, we believe that the reasonable person would reach a different conclusion on that test. Significantly, the allegations by the complainants concerning BKD being involved with the procurement (by others) of underage boys for sexual purposes, the travels to South East Asia, the AFP interest in BKD and the nature of the offences committed by the former colleagues and friends referred to above, would all weigh heavily on the reasonable person allowing their child to have direct unsupervised contact with BKD whilst he was engaged in child related work. AFP material records BKD as a ‘suspected child sex offender’. He was under observation by the AFP and in our view the reasonable person would view these matters (in the totality of the evidence) as adverse to BKD and would add to the basis as to why they would not allow their child to have direct unsupervised contact with BKD, in the context of child related work.
Whilst such a matter may on the face of it seem discriminatory noting the s 30 (1) finding that BKD does not currently pose a risk, the Act does not prescribe what matters might give rise to risk, other than the very broad suite of matters covered in s- 30 (1) (a) – (k). The Act is not directly concerned with specific instances of criminality or unseemly conduct towards others (including children). These matters only arise in the context of disqualifying an applicant or requiring a risk assessment, both being processes of the Children’s Guardian.
The matters specified under s – 15 (1) – (4A) pertain to the Children’s Guardian’s functions. They are broadly analogous with the Tribunal’s powers and functions under s 30 (1) – (1A) of the Act. However the provisions of section 15 are only enlivened if a risk assessment of an applicant is to be undertaken. The Tribunal’s functions are only enlivened under s-30 where an application is made for an enabling order by a disqualified person, or a review following an adverse risk assessment, as in the present case.
An individual seeking a clearance who is not a disqualified person or subject to a risk assessment could be issued with a clearance even if on the criteria of section 15 and 30 they would be assessed as being a risk. It would appear that in matters generally, an applicant’s criminal history and any findings or notification of misconduct in the mandatory reporting context are the substantive matters that lead to the consideration of the requirement for a risk assessment on a case by case basis. On this basis we observe that it is conceivable that an applicant who is issued a clearance whilst satisfying the Children’s Guardian of certain particulars, if not subject to an assessment could obtain the clearance without demonstrating their ability to work unsupervised.

However in this matter it is BKD’s workplace sustained finding that enlivens the s 30 (1) and (1A) criteria. Having been subject to a mandatory risk assessment, and having been refused a WWCCC and now seeking administrative review, BKD is bound to traverse the reasonable person test for s 30 (1A), in effect satisfying the requirement to engage in child related work unsupervised.
We will therefore make a finding that pursuant to s 30 (1A) (a) Act, a reasonable person acquainted with all of the evidence, for the reasons that we set out above, would not allow his or her child to have direct contact with the affected person (BKD) that was not directly supervised by another person while the affected person (BKD) was engaged in any child-related work, and we so find.
Because of the finding that we have made at [153], we are not required to consider s 30 (1A) (b) of the Act concerning whether the granting of a clearance to BKD would be in the public interest, as the provisions (a) and (b) are conjunctive.

Conclusion

For the reasons set out above, we reach the following conclusion:
The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant currently does not pose a risk to the safety and wellbeing of children.
However the evidence establishes that we are not satisfied, in accordance with s 30 (1A) (a) that a reasonable person would allow his or her child to have direct contact with BKD that was not directly supervised by another person while BKD was engaged in any child-related work..
As we have made the finding that we have in the paragraph above, we are not required to make a finding that granting BKD a WWCCC would be in the public interest in accordance with s 30 (1A) (b) as ss (a) and (b) are conjunctive.
It therefore follows that the correct and preferable decision is to affirm the decision of the respondent.
The application will therefore be dismissed.

Orders

The decision of the respondent dated 2 September 2020 to refuse the applicant’s Working with Children Check Clearance is affirmed.
The application is dismissed.

**********

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

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

Amendments

21 October 2021 - Format changes to coversheet only

Decision last updated: 21 October 2021

Medium Neutral Citation:	BKD v Children’s Guardian [2021] NSWCATAD 303
Hearing dates:	25 May 2021
Date of orders:	21 October 2021
Decision date:	21 October 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M Bolt, General Member
Decision:	(1) The decision of the respondent dated 2 September 2020 to refuse the applicant’s Working With Children Check Clearance is affirmed. (2) The application is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – whether reasonable person would allow unsupervised access to their child
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 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 Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 Children’s Guardian v CKF [2017] NSWSC 893 Children's Guardian v CXZ [2019] NSWSC 1083 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CSW v Children’s Guardian [2017] NSWCATAD 326 CXZ v Children’s Guardian [2020] NSWCA 338 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Category:	Principal judgment
Parties:	BKD (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Lowson (Respondent) Solicitors: McAuley Hawach Lawyers (Applicant) Crown Solicitor (Respondent)
File Number(s):	2020/00257835
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.