BQC v Children's Guardian

[2016] NSWCATAD 129

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BQC v Children’s Guardian [2016] NSWCATAD 129
Hearing dates:	29 January 2016
Date of orders:	23 June 2016
Decision date:	23 June 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member E Hayes, General Member
Decision:	(1) The decision of the respondent dated 5 December 2014 to refuse to grant the applicant a clearance is set aside.  (2) In substitution for that decision, the following decision is made; The applicant is granted a Working with Children Check clearance
Catchwords:	CHILD Protection – Working with Children – Risk Assessment – Whether applicant poses a risk to children – Real and appreciable risk – Weight of workplace finding - Whether evidence sufficient to make a positive finding – Whether in absence of finding applicant poses a risk.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998(Repealed) Civil and Administrative Tribunal Act 2013
Cases Cited:	Children and Young People v FZ [2011] NSWCA 111 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 R v Commission for Children and Young People [2002] NSWIRComm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BKE v Children’s Guardian [2015] NSWSC 523 M v M (1988) 166 CLR (HCA)
Category:	Principal judgment
Parties:	BQC (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Harstein (Respondent)   Solicitors: Hannaway Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1410711
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

1. The Applicant in these proceedings is referred to as "BQC". BQC is the applicant's pseudonym used in these proceedings.

2. On 26 February 2015 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

3. The jurisdiction of the Tribunal under Part 4 of the Child Protection (Working with Children) Act 2012 ('the Act') is protective and not punitive in nature, as set out by the Court when considering section 28 of that Act: Commission 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 sections 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.

4. These proceedings arise because on 5 December 2014, the Children's Guardian made a decision to refuse to grant BQC a working with children check clearance. On 15 December 2014 the applicant BQC applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act.

Background

5. On 9 September 2013 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a clearance in order to continue perform some pastoral and parish work as a priest who has retired from full time parish responsibilities.

6. During the period from September 2013 until December 2014 the respondent considered the applicant's application. In late January 2014 the respondent put the applicant on notice that they had identified information which required a risk assessment, due to the fact that a workplace assessment / inquiry had identified two instances of sexual misconduct and arrived at sustained findings. These matters related to allegations in 1983 and 1984.

7. On 9 April 2014 the respondent issued a ‘Notice of Interim Bar’ pursuant to section 17 of the Act. On 3 November 2014 the respondent notified the applicant that they proposed to refuse his application for a clearance. (Notice of Proposed Refusal of Application).

8. On 5 November 2014 the applicant submitted material to the respondent in respect of the proposed refusal of clearance. After considering all of the material previously provided and reviewing the matter, on 5 December 2014 the respondent finalised the working with children check and the applicant was refused a clearance.

9. As a result of the refusal of the clearance the applicant is unable to engage in child related employment.

10. On 15 December 2014 the applicant lodged an application for administrative review before the Tribunal. The grounds of the application are that: I am seeking a review of the decision on the following grounds: 'It is plainly wrong. It is unfair.’ There is no dispute that the application has been lodged within time.

11. The issue now to be decided by the Tribunal is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting or refusal of a clearance in relation to the applicant: (see section 63 Administrative Decisions Review Act 1997.)

The working with children legislative scheme

12. 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. (See section 3 of the Act).

13. 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. (See section 4 of the Act).

14. 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 section 8(1) is an offence.

15. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act). A child related role is set out in section 6(3) of the Act.

16. Section 14 of the Act provides that a person is subject to an assessment requirement under the Act if any of the matters specified in Schedule 1 apply to the person.

17. Section 15(1) of the Act provides that the Children's Guardian must conduct a risk assessment of an applicant for a clearance to determine whether the applicant poses a risk to the safety of children.

18. Section 18(2) provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.

19. Part 4 of the Act deals with reviews and appeals. Section 27 makes provision for administrative review, by the NSW Civil and Administrative Tribunal, of decisions of the Children's Guardian.

20. Section 27 (1) of the Act makes provision for administrative review by the Tribunal of (amongst other things) a decision of the respondent to refuse a clearance (see section 27 (1)). 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) ………...

(3) ………...

(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.

21. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Subsection 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 total criminal record and the conduct of the person since the offences occurred,

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

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

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

Burden of Proof

22. The jurisdiction of the Tribunal under section 27 of the Act is 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].

23. 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].

24. An application pursuant to section 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.

25. In addition, in this case there is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s28 of the Act.

26. In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In that regard, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 21 above). Section 15 (4) sets out the criteria which the Children's Guardian may consider. The Tribunal in its administrative review considers similar criteria in that section 15 (4) and section 30 (1) are drafted in similar but not identical terms. An important distinction is the word "may" in 15 (4) and "must" in 30 (1).

27. 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 section 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". ...'

28. 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 section 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.

29. 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] before this Tribunal.

The Issue to be decided

30. The primary issue before the Tribunal in this application as outlined at paragraph 11 above, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a clearance in relation to the applicant: (section 63 Administrative Decisions Review Act 1997).

The Hearing

31. The applicant's substantive application was heard on 29 January 2016. Whilst the matter had originally been set down for hearing in regional New South Wales once the matter was ready to be heard and within 7 months of filing the application, the hearing was adjourned on two occasions during 2015. As a result the matter was not heard until just over a year from the applicant commencing his review proceedings.

32. As indicated, the substantive hearing took place on 29 January 2016. Both parties were legally represented. At the conclusion of the hearing the Tribunal reserved its decision.

33. As outlined above, there is no presumption under section 27 of the Act that the applicant poses a risk to children as the applicant is not a disqualified person (seeking an enabling order) under the Act. This application is for a clearance under section 18 (2) of the Act.

34. A significant amount of material was tendered at the hearing by both parties. The applicant tendered three affidavits, the third of which put into evidence an expert report, in addition to the application for administrative review. The respondent tendered a large volume of material filed pursuant to section 58 of the Administrative Decisions Review Act 1997 totalling over 800 folios of material, in addition to amended reasons for decision. Both parties filed written submissions. The order of witnesses involved the applicant giving evidence first, followed by a lay witness, and then the expert witness.

Applicant's Evidence

35. The applicant adopted his affidavit sworn 30 March 2015 in his evidence in chief.

36. Under cross examination the applicant was taken to a statement that he had authored in November 2014 and in particular the reference to his ‘being made aware’ of matters. The witness advised that this reference arose from the context of group therapy whereby various propositions were put to him.

37. When asked why he had not referred to evidence of a conversation between one colleague ‘Father M’ and ‘Father D’, the applicant stated that at the time of his affidavit (sworn March 2015) he was not aware of those matters.

38. The applicant was taken to paragraph 86 of his affidavit, and specifically the reference to the two complainants being persons of ‘bad character’. The applicant stated that the complainants were disruptive and asked to leave the care arrangements set up by the Parish. It was put to the applicant that during the period of care placement, the applicant performed the effective role of parent to the two complainants. The applicant rejected this proposition and disagreed with such a characterisation being applicable.

39. The applicant was taken to some adverse matters involving his long career as a priest whereby he had been detected ‘misappropriating’ funds from the Parish collection. The theft had been characterised this way by the Church superiors as the manner of the theft was deemed to be clumsy and orchestrated in a manner whereby the applicant would be detected. These matters appear to have been admitted by the applicant, and of some significance to his superiors was the fact that the applicant was being treated for alcoholism. Improvements in his overall health and psychological state were noted at that time (approximately 30 years prior to hearing). The applicant disagreed with the proposition of the respondent that he was of bad character.

40. The applicant was taken to aspects of the workplace conduct report (involving the allegations of abuse of the two persons in his charge). That report was prepared in 2008 and details a large and detailed history of the applicant. Amongst that history is a series of allegations arising from a detailed interview of the applicant whereby various propositions are put to him. An allegation of mishandling of Parish finances is raised whereby a Father D’s statement is referred to concerning the applicant forging another Priest’s signature and writing his own cheques. The applicant denies that he forged any signatures on cheques and gave evidence that at the time he was authorised to sign cheques himself.

41. The applicant was questioned about his alcoholism. He gave evidence that his mother died suddenly and that he had used large quantities of cough mixture abusing this as part of his problem with alcohol.

42. The applicant was taken to aspects of the section 58 material concerning his participation in a treatment program ‘Encompass’. The applicant’s evidence was that he had self-referred to this program. The reason being that due to his substance and psychological issues, he had been suspended from the Ministry and was sitting around the Presbytery with not much to do. He maintained his position that he self referred and was not sent to the program by the Diocese. The applicant was taken to some of the Therapy Notes from within the Encompass material and was asked why he felt sad and ashamed (as recorded in the notes) if in his view the abusive behaviour (involving the complainants) did not occur. The applicant maintained his denial of what was alleged to have occurred.

43. The Tribunal notes that the therapy notes appear to canvass all possible permutations as to the existence, lack of existence, or possible existence of the allegations as being factual. Reference is made to periods of ‘blackout’ and the intensive nature of confronting the possibility of the existence of certain behaviours. It is clear to the Tribunal that the applicant found the group aspects of the therapy somewhat challenging, and this was reflected both in the notes and the oral evidence.

44. The applicant was taken to a report of a Consultant Psychiatrist Dr ‘C’, based on an examination / assessment in February 2008. Counsel for the respondent submitted that the specific reference to (the applicant) confronting with the help of the group the reality of the complaints against him – hearing other members speak seemed to help him surmount what he had forgotten and denied to himself equated to an admission to the allegations and what had occurred. The applicant rejected this assessment of that material.

45. Reference was made to another report of a Forensic Psychiatrist Dr ‘O’ dated December 2007. Counsel highlighted a possible / occasional homosexual fantasy referred in the report from the applicant’s early adulthood. However this reference was an occasional departure from heterosexual thoughts and there is no reference to any aspect of these thoughts and memories as involving children.

35. The applicant gave evidence that he told Dr Seidler (the expert commissioned for these proceedings), that he had never had sexual contact with another person. However counsel questioned the applicant concerning matters relating to his sexual thoughts and activities after entering the seminary. It was suggested that there was some divergence between the details told to various experts during the Encompass process as contrasted with what he advised Dr Seidler. The apparent differences related to the dates of his first sexual feelings activities and predominantly covered the mid to late adolescence period. Likewise various minor contradictions in details of his life history were put to the applicant as examples of being misleading in his application, or failing in his duty under section 27 (4) of the Act.

36. In re-examination the applicant was asked clarifying questions about matters that had arisen in cross-examination. No significant matters arose from those answers.

Witness 2

48. The applicant’s Character referee and senior colleague was examined, and gave evidence in person at the hearing. The witness adopted his affidavit sworn 31 March 2015. He was not aware of the historical complaints concerning the applicant’s dealing with parish funds, nor was he aware of the view of the relevant Bishop concerning the applicant’s behaviour from the early 1980’s with alcohol abuse and subsequent psychological deterioration. The witness was however aware of the applicant’s previous alcohol problem.

49. In cross-examination it was put to the witness whether he knew that the applicant conceded that the abuse was a possibility. The witness was made aware of the sexual misconduct allegations after the applicant had been stood down as Parish Priest. The witness gave evidence that he knew that the applicant was able to come to his Parish and reside and perform pastoral duties there on the condition that he not work with children. The witness advised that the NSW Ombudsman imposed this condition.

50. Various propositions were put to the witness concerning whether he had any knowledge of the applicant engaging in inappropriate conduct with children (including sexual conduct), to which the witness emphatically denied any knowledge.

The Expert Witness

51. Forensic Psychologist Dr K Seidler gave evidence at the hearing by telephone in addition to her assessment report dated 27 May 2015, and accompanying affidavit dated 5 June 2015 which was adopted during examination in chief.

52. During examination Dr Seidler stated that the applicant’s home life as a child was only one factor on the risk instrument. When matters concerning the applicant’s family history (as detailed in his Encompass intake assessment) had differed from what was recorded in her report were raised with the witness, she conceded that there was some divergence, however she maintained her earlier answer that the home environment was only one factor.

53. Questions were put concerning matters disclosed in the applicant’s earlier evidence concerning feelings of shame, and matters identified in the therapy notes. When these matters were put to Dr Seidler she advised that yes, the matters outlined in the clinical notes were a possible scenario, but not necessarily a factual one.

54. When she was taken to the matters outlined in Dr ‘C’s report following his psychiatric assessment / examination in February 2008 it was conceded that the matters specified in that report do indicate a possible and plausible event. However Dr Seidler did qualify her answer that none of the matters expressed in the reports were of themselves determinative of the ultimate outcome concerning risk.

55. When put to her, Dr Seidler did accept the proposition that at various times in the past the applicant had told some persons one thing and told others something different (concerning a specific incident or history). However she also suggested that even if it is accepted that those things happened (i.e: the discrepancies in the history / answers), then it did not change her overall assessment and the outcome of her report. The reasons for this position was based on the significant passage of time since the problematic personal behaviour had occurred (alcoholism, significant depression and trust issues) being 30 to 35 years, and that the serious allegations were now over 30 years old (noting that they were reported more recently).

56. The applicant had been abusing alcohol for 10 of his 60 years. The other allegations of concern all occurred during a similar period and therefore the risk issues covered a brief period of his life. Dr Seidler concluded that the alcoholism and substance abuse were now well behind the applicant and he had been sober for approximately 30 years with no relevant serious matters coming to attention.

Applicant’s Submission

57. The applicant’s Solicitor drew the Tribunal’s attention to the necessity to determine whether the applicant posed a real and appreciable risk. Of relevance was the fact that the expert report of Dr Seidler had not been challenged in respect of it’s conclusions.

58. It was submitted that page 92 (of the section 58 documents being the statement of one of the complainant’s) was not signed. It was submitted that the complainant (R1) never made a complaint to the Police about himself but made a Crime stoppers report about his brother ‘R2’. It was submitted that from the section 58 material (page 108) was different in details to other material. Importantly at pages 255 and 263 of the section 58 material identical pages appeared however the original typed page (at 263) said that ‘Fr (BQC) did not make any sexual advances to me, while I was at the presbytery’. At page 255 of the section 58 material the page is identical except that the word ‘not’ has been redacted by pen. The Tribunal notes that the grammar and structure of the typed sentence would appear to favour the original non-redacted version.

59. The applicant’s Solicitor made general submissions about the prejudicial nature of much of the section 58 material and submitted that little weight should be given to it. It was submitted that there was one allegation by two related persons, and that was all that had occurred in many decades.

60. Further submissions were made that the findings of the respondent (in the risk assessment) were made in reliance on two reports of Mr S who conducted the workplace investigation. In respect of the matters referred to in Dr ‘C’s report it was submitted that it was never clarified in evidence what these disclosures related to, and that they could have been in relation to a number of matters not relevant to these proceedings.

61. It was submitted that the applicant had never been charged with any offence in his life and that Police had never interviewed him about any matter pertaining to him. The applicant’s Solicitor submitted that there was no evidence that the applicant posed any risk, including a real and appreciable risk to the safety of children.

Respondent’s Submissions

62. The respondent reiterated that there was no burden of proof in these (section 27) proceedings. The Tribunal is dealing with the issue of risk, and must consider is there a risk, if so is it a real risk or likelihood. The Tribunal needs to be satisfied as to whether there is a risk or not.

63. The respondent submitted that the applicant is not a person of good character. It was submitted that this conclusion could be drawn from the stealing issues highlighted in the evidence.

64. The respondent further submitted that the applicant was inconsistent in his evidence, in particular the apparent references from him to the admission of certain behaviour, and then the objection to the submission of the respondent that on one view the applicant must not be telling the truth and is therefore a liar.

65. The respondent submitted that the workplace investigation found some corroboration for the serious allegation of sexual misconduct / assault. It was submitted that the victim was a child and therefore significant risk attaches to the criteria under consideration by the Tribunal.

66. However the respondent conceded that the only factor that cannot be denied, which is in the applicant’s favour, is the significant length of time since the matters under scrutiny occurred.

67. Finally the respondent submitted that the expert (Dr Seidler) did say that if the applicant’s drinking recommenced and that was coupled with access to children, then the overall areas of risk would increase.

Section 30 (1) considerations

(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.

68. The applicant's application to the Tribunal is brought about by an adverse risk assessment of him by the respondent. Those matters encompass the matters whereby the applicant was accused of sexually abusing two teenage males, one who was in his care, and the other being his sibling. The alleged conduct involved the fondling of genitals of the victims and masturbation.

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

69. The matters referred to in the risk assessment are alleged to have occurred in the period 1983-1984. That is approximately 32 to 33 years prior to the hearing of the matter.

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

70. The applicant was approximately 36 and / or 37 years old when the matters relevant to section 30 (1) (a) are alleged.

(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.

71. The victims were approximately 13 / 14 years old and 15 years old at the time of the alleged conduct against them.

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

72. The difference in age was approximately 20 to 25 years between the applicant and the complainants. The evidence indicates that one of the victims was a Ward of the State and under the effective guardianship of the applicant. The relationship between the applicant and both complainants was one of Parish Priest and person in their charge or care.

73. Both complainants were considered vulnerable in that they were under Ministerial Responsibility (in Care), were orphans, and were children. The respondent submitted that matters pertaining to lack of support services for indigenous persons (especially children) at that time and continuing, exacerbates their vulnerability. The applicant submitted that the complainants were not under his care. In any event he was a Priest and the complainant’s were at the relevant times directed to live in the residence with the applicant.

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

74. The applicant was aware that both of the complainants were children.

(g) The person's present age.

75. At the time of the hearing the applicant was 68 years of age.

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

76. The applicant does not have a criminal record. No relevant matters have come to light between the allegations from 1983/84 and the application for a clearance. The issue of the applicant’s alcoholism and psychological state has been noted as an ongoing issue which has been managed and addressed by both abstinence (for the alcoholism) and some forms of psychological and psychiatric treatment for both.

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

77. Based on the expert report provided by the applicant, it would appear that the likelihood of the applicant offending is low. This is specified as being a Low risk of future sexually abusive behaviour and it is suggested that this risk will be well managed without intervention, supervision or monitoring.

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

78. The applicant tendered an affidavit from Witness 2 in addition to the expert report and his own affidavit. During cross-examination witness 2 was asked by the respondent whether he believed that the applicant was a paedophile or a hebephile. Whilst this was not in the Tribunal’s view a question that a lay witness would be able to answer, the respondent asked these questions (in addition to the material outlined at paragraph 50 above) and in both instances the witness answered in the negative.

79. The applicant through his affidavit and many of his answers during his lengthy examination was able to address many of the issues that the respondent raised as adverse to the applicant. Whilst the matter of the workplace finding was agreed, there was a disparity between the basis, conduct and conclusions of the workplace investigation, with the applicant raising significant objections to both the investigators approach and motives, and the complainant’s motivations for making the complaints about him.

80. The applicant provided three affidavits in the proceedings and was subjected to lengthy cross-examination.

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

81. The respondent raised a number of issues in submissions, mainly relating to the two reportable conduct matters and the applicant’s contradictory evidence in respect of his recent responses when contrasted with the archived material. In addition the respondent pointed to current contradictions in aspects of the applicant’s material, such as the means by which he came to commence the Encompass course.

82. In addition the respondent placed significant emphasis on the conduct of the applicant in denying the conduct which was subject of the allegations. The respondent submitted that the applicant had consistently denied the sustained allegations and that this is despite the strength of the evidence contained within the archived materials.

83. The respondent submitted that the nature of the applicant’s role and vocation and the basis for the clearance, demonstrate a situation whereby the applicant would be unsupervised and significantly autonomous holding a high level of moral and spiritual authority. The respondent submitted that this would be concerning as it would bring the applicant into direct and unsupervised contact with children and young people on a regular basis.

Consideration

84. In our view the cases of M v M [1988] HCA 68; 166 CLR 59 and the case of BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 have applicability to aspects of the fact finding role of the Tribunal in the current proceedings. Significantly, the preliminary issue is whether the Tribunal can be satisfied that a particular allegation on the available evidence had or had not been made out, whether the Tribunal could still be satisfied that the applicant did or did not pose a real and appreciable risk.

85. In M v M [1988] HCA 68; 166 CLR 59 the Court was considering a finding from the Family Court of Australia and whether there was an unacceptable risk to the child. The Court stated at paragraph 23 and 24:

23. 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.

24. 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 assessing 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.

86. That case was concerned with whether there existed an unacceptable risk that the child would be exposed to harm in the nature outlined. At paragraph 25 the Court examined the various risk references:

25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

87. In the present case the relevant test is to consider whether the applicant poses a 'risk to the safety of children'. (Section 18 (2) ) and that the risk is 'real and appreciable' (as per Young CJ in Eq in Commission for Children and Young People v V ).

88. In the case of BKE the following was provided in respect of consideration of the matters arising from M v M. At paragraph 33 Beech-Jones J observes:

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.

89. In making a finding as to whether the criminal allegations occurred, (to the civil standard) we find that we are unable to make a positive finding. In doing so we find that the evidence in the form submitted at the hearing is (in our view) not sufficient to establish those allegations to the civil standard. That is not to suggest that the allegations did not factually amount to any inappropriate conduct or have no truth, (or in the alternative - have truth), but rather that we are unable to positively determine them, in that we are required to be reasonably satisfied as to their veracity (on the balance of probabilities).

90. Questions arose during the hearing concerning the integrity of the investigation documents, and possible motivations for making complaints. Whilst the Tribunal does not entertain speculative reasons for the complainants raising these matters, we note that such suggestions (due to the nature of the preparation and hearing of these proceedings) were unable to be scrutinised or otherwise tested.

91. In addition many of the matters raised by the applicant to rebut the specifics of aspects of the allegations were unchallenged by the respondent. Whilst we note that there were sustained findings in another context, the Tribunal has before it a significant amount of material to the contrary. Therefore we make a further finding that whether those matters occurred, or did not occur remains open.

92. In any event, we are required to determine notwithstanding the absence of any finding, whether the applicant poses a real and appreciable risk to the safety and well-being of children and young persons.

93. In respect of the respondent’s submission as outlined at paragraph 83 (above), the Tribunal has little regard to such a submission. The reason being that all clearances under the Act are unconditional, with the situation being that a person with a clearance may work full time, part time, occasionally or in some instances never work with children. In our view bearing in mind the nature of clearances generally, it is unnecessary to focus further on an individual applicant’s circumstances or potential circumstances.

94. In our view the applicant was a reasonable witness, in that his answers were coherent, to the point, and attempted to deal with adverse and somewhat uncomfortable questions. We make these observations due to his somewhat confrontational approach to Counsel, but having regard to the totality of the exchanges, and various objections by his Solicitor, we place no adverse inferences on these matters.

95. In our view the applicant was reasonably consistent in his answers and the Tribunal was able to understand the cogent and in our view honest take on the meaning of aspects of the counselling / group therapy sessions, and the applicant’s overall position. Bearing in mind the nature of that treatment and the language and presumed preconditions for exploration of issues (i.e.: that matters occurred) in such a context we infer that no significant weight can attach to such records. The very nature of counselling notes is that clinicians usually stipulate that they are of limited evidentiary value as they are treatment focused.

96. The applicant’s overall denials of the conduct whilst on one hand amounting to minimising behaviour, are consistent with a person who does not believe that certain matters occurred. We note that no official or police action arose from these allegations and that there is no evidence of any pattern of behaviour on the evidence and material before the Tribunal.

97. The Tribunal also notes that there has been a significant passage of time since the conduct that the applicant was questioned about during the hearing.

98. In our view, there was no evidence that the applicant was untruthful or deliberately evasive in his answers, and in that regard has (in our view) satisfied the requirement of section 27 (4) of the Act.

99. We have had regard to all of the evidence and submissions in these proceedings, even if we do not refer to all of that information specifically in these reasons.

100. In our view, even though we have determined that a positive finding cannot be made in respect of the alleged conduct which would point to risk, on the evidence and material before us, the applicant does not currently pose a real and appreciable risk to the safety of children and young persons. In our view the risk is neither real, nor appreciable, and neither is there sufficient evidence before us to the requisite standard that there is any real likelihood of future risk.

Conclusion

101. For the reasons set out above, and specifically having regard to the matters as set out in section 30 of the Act (see paragraphs 68-83 inclusive above), we reach the following conclusion.

102. The evidence and material referred to in these reasons does not establish that the applicant currently poses a real and appreciable risk to the safety of children.

103. The evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant poses a risk to the safety and wellbeing of children.

104. We note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

105. In our view having regard to all of the material before the Tribunal, to the requisite standard the applicant does not pose a risk to the safety of children.

106. It therefore follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children’s Guardian.

Orders

1. The decision of the respondent dated 5 December 2014 to refuse to grant the applicant a clearance is set aside.

2. In substitution for that decision, the following decision is made; The applicant is granted a Working with Children Check clearance

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

Decision last updated: 23 June 2016