BRL v Children's Guardian

[2016] NSWCATAD 27

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BRL v Children’s Guardian [2016] NSWCATAD 27
Hearing dates:	8 October 2015
Date of orders:	10 February 2016
Decision date:	10 February 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M Bolt, General Member
Decision:	(1) The decision of the respondent is set aside.
Catchwords:	CHILD protection – Working with children – Protective jurisdiction – Whether any real and appreciable risk – denial of allegation s – Character evidence – Positive finding – Absence of finding – Finding as to 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Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998(Repealed) Civil and Administrative Tribunal Act 2013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 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:	BRL (Applicant) Office of the Children’s Guardian (Respondent)
Representation:	Counsel: L Andelman (Applicant) J Harris (Respondent)   Solicitors: Legal Aid (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510100
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 "BRL". BRL is the applicant's pseudonym used in these proceedings.

2. On 26 March 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 3 February 2015, the Children's Guardian made a decision to refuse to grant BRL a Working with Children Check clearance. On 16 February 2015 the applicant BRL applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act.

Background

5. On 31 December 2013 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a Working with Children Check clearance in order to be employed as a paramedic.

6. During the period from January 2014 until February 2015 the respondent considered the applicant's application. In March 2014 the respondent put the applicant on notice that they had identified information which required a risk assessment, due to the fact that previously, proceedings had been commenced against the applicant for an offence(s) as set out in Schedule 1 of the Act.

7. The applicant provided information to the respondent concerning the matters raised in respect of the risk assessment triggers (from Schedule 1). The respondent had contact with the applicant on approximately 18 occasions in order to obtain information and a response to various issues which in their view were relevant to the risk assessment during the period January 2014- October 2014. On 31 October 2014 the respondent notified the applicant that they proposed to refuse his application for a clearance. (Notice of Proposed Refusal of Application).

8. The applicant provided a response to the proposed refusal on 14 November 2014. After considering all of the material and reviewing the matter, on 3 February 2015 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 16 February 2015 the applicant lodged an application for administrative review before the Tribunal. The grounds of the application are that: 'The applicant is seeking a review on the ground that he does not pose a risk to the safety of children'. In addition the applicant sought an order that the decision of the Children’s Guardian dated 3 February 2015 be set aside. 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 of a working with children check 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 working with children check clearance or there is a current application by the person to the Children's Guardian for the relevant working with children check 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 working with children check 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 working with children check 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 working with children check clearance in relation to the applicant: (section 63 Administrative Decisions Review Act 1997).

The Hearing

31. The applicant’s substantive application was heard on 8 October 2015. Prior to that hearing the Presiding Member heard an application by the applicant’s legal representatives to limit the scope of the evidence and material sought to be tendered by the respondent.

32. On 28 July 2015 the preliminary application was heard. The application concerned an objection to the tender of four Police records of interviews in relation to the charges that constitute the risk assessment triggers. The records of interview related to the alleged victim’s two interviews and an interview with each of two sibling witnesses. This preliminary hearing focused on the applicant’s intention to rely on the records to prove the existence of asserted facts (denied by the applicant). It was also on the basis that these witnesses were not to be called by the respondent, and that they were unavailable (on the parties submissions) to give evidence at the hearing, that objection was made.

33. After hearing the submissions of both parties, and considering the superior court cases relied upon by the applicant, which they stated were on point, the Tribunal gave an ex-tempore decision excluding the four statements in respect of any use to prove the asserted facts.

34. The charges that gave rise to a mandatory risk assessment under section 27 of the Act concerned two counts of indecent assault and four counts of sexual intercourse involving a victim less than 16 years of age. All matters were discharged, however the provisions of the Act provides that under Schedule 1, if proceedings have been commenced against a person for an offence listed in that Schedule, then an applicant is subject to a risk assessment in accordance with Part 3 Division 3 of the Act. It is these five matters which predominantly concern the application.

35. As indicated, the substantive hearing took place on 8 October 2015. Both parties were legally represented. At the conclusion of the hearing the Tribunal reserved its decision.

36. 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.

37. A significant amount of material was tendered at the hearing by both parties. The applicant tendered five affidavits and 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. The order of witnesses involved the applicant giving evidence first, followed by the expert witness, and then the other lay witnesses.

Applicant's Evidence.

38. The applicant gave oral evidence at the hearing. The applicant was asked during evidence in chief and cross examination about his occupational and domestic history. In addition he clarified his affidavit evidence by stating that there were two larceny matters arising in his past, not one as set out in his affidavit of 12 June 2015.

39. The applicant currently lives about half way across town from, the victim / complainant’s father in a regional centre in New South Wales. The victim / complainant’s father (Mr ‘W’) is a witness in these proceedings.

40. There were a number of minor inconsistencies in the written and oral evidence but these do not appear to have any bearing on the salient issues for consideration by the Tribunal even though they were to some extent disputed between the parties.

41. Most of the applicant’s evidence focused on the circumstances present at the time of the allegations (referred to in paragraph 34 above). These concern his dwelling where the complainant / victim visited during the school holidays around Easter 1998, whist visiting and staying with her father.

42. The applicant is related by law to the victim / complainant’s father. (Brother in Law Mr ‘W’). When asked about whether his two children (son and daughter) ever stayed over at the victim / complainant’s house, his evidence was that this was unlikely as one of the children did not like sleepovers.

43. It was put to the applicant that the allegations made against him caused the relationship between the applicant and Mr ‘W’ to have cooled. Whilst some of the material indicated that the victim / complainant was living in Bathurst at the time of the allegations, the applicant maintained in his evidence that it was his understanding that she had re-located to Parkes, and came to stay with her father during school holidays.

44. The applicant in his evidence disputed aspects of the police facts in addition to the criminality contained therein. The applicant does not accept that the victim / complainant ever came to the house to babysit his children during the Easter School Holidays in 1998.    In addition the applicant maintained that ‘R’ and his wife ‘C’ would have looked after the children on the evening of Good Friday (10 April). The applicant’s evidence was that at the relevant time he went to the Bowling Club not the RSL in town.

45. When the applicant and his wife returned home, the two adult babysitters (‘R’ and ‘C’) went home to their own residence. The applicant denied in his evidence that his spouse went to bed on that occasion and the applicant stayed up with the victim / complainant. The applicant was asked if there was ever a time during the 1998 Easter Holidays when he may have been alone with the victim / complainant in a room in the house. The applicant answered no, and went on to describe the layout of the house.    

46. There was only one floor (single level) to the house. The house has four bedrooms, lounge room, kitchen and toilet. The applicant’s evidence was that there were ‘no walls between them’, in that other than the bedrooms and the toilet the house was ‘open plan’. His son’s room was where the alleged offences are said to have occurred. His son would occasionally sleep on the parent’s bedroom floor rather than in his own bed. The applicant denied any behaviour as to ‘cuddling’ and giving the victim any reason to believe there was anything of a sexual nature between them.

38. The following Friday (17 April) after Good Friday, the applicant again went out to the same Bowling Club as the week before. In addition the same babysitting arrangements as the previous week were in place. However another person ‘M’ stayed at the applicant’s house, ‘M’ being a friend of the applicant’s brother.    When they returned from the Bowling Club the applicant’s wife went out with a female friend and the applicant stayed on the couch watching football with ‘M’   until the wife returned home.

39. In respect of the allegation that the applicant’s children were asked to get into the bath together, the applicant’s evidence was that such a situation would not be usual, and that he was never aware of the siblings having a bath together.

40. The applicant did accept that the victim / complainant did stay over at his house on three separate occasions, and that this was due to her relationship with his daughter as set out in his affidavit.

41. After the report was made of the allegations, the applicant’s evidence was that he was advised that the victim / complainant was upset with him. The applicant’s evidence was that the victim / complainant’s father (Mr ‘W’) called him and said that he was going to go and see the Department (DOCS).    

Witness ‘J.M.’s Evidence.

51. The applicant’s spouse gave evidence at the hearing in addition to her affidavit of 12 June 2015.    She adopted her affidavit and gave evidence that she has known the applicant for over 28 years. And that the proceedings were stressful on the couple.

52. In cross examination the witness gave evidence that at that time the applicant did not stay overnight at (Mr ‘W’s) house. Her evidence that at any time such a situation would be extremely rare as the applicant does not like to stay at other people’s places. Her evidence was that he may have baby-sat on occasions.    

53. In evidence the witness confirmed that she and the applicant were trying to conceive another child around 1998 when the allegations arose, and for that reason she indicated that neither of them used condoms, nor were they ever a viable choice of contraception during their relationship. In this regard the witnesses’ evidence was that there were no condoms in the house and this contradicted certain aspects of the police statements.      

54. In addition when questioned about what view her brother (Mr ‘W’)    held after the allegations were made, she gave evidence that her brother wanted to believe his daughter (the victim / complainant) but also believe the applicant.  

The Expert Witness

55. The Expert Witness (Dr K Seidler Clinical and Forensic Psychologist) gave evidence before the Tribunal. In addition a report prepared by the witness dated 2 June 2015 was tendered without objection.

56. Dr Seidler set out the limitations on the assessment tool in her report. The ‘Static-99’ instrument used in conducting risk assessments for adult male sex-offenders is not pertinent in this matter as it is reliant on convictions. The applicant has no convictions in respect of sex offending. The witness described the applicant as not being ‘an adjudicated offender’ for this reason.

57. Dr Seidler’s evidence was that she cannot asses the applicant as ‘no risk’ and make such a finding as due to human variables it is not possible to accurately predict future matters and circumstances that may arise with any particular individual. The witness was asked about where the applicant’s assessment was elevated. Whilst the responses indicated that the applicant presented himself in an overly favourable light, this did not cause the scores to be elevated to such an extent that it would invalidate the profile.

58. The witness indicated that in compiling her report the allegations against the applicant were very specific and detailed. Her evidence was that when this occurs (such detail specificity) in her experience such allegations are more likely to be credible, and as a result one can attribute more weight to them. There was also one assertion by the applicant to Dr Seidler that she considered unusual, that being the reference to the victim / complainant making the allegations which were based on the behaviour of another person, but that she was protecting that person by accusing the applicant.

59. When considering the risk assessment and looking at the protective factors, Dr Seidler opined that it was not the fact that the applicant is in a relationship that is the protective factor, but rather that he is / has been able to maintain a relationship for such a long period of time. The necessary intimacy skills are considered a protective factor.

60. Dr Seidler’s evidence was that the applicant’s self- awareness is limited, but this is partially due to the overly favourable light that he presents himself in. There was some discussion with the witness about the import that could be made of the applicant’s blanket denial of the allegations. Dr Seidler’s evidence was that denial itself has no impact on risk but can impact on the ability to engage in treatment.

61. An aggravating factor was the lack of self- awareness of the applicant. This however can be in part attributed to his earlier domestic history, prior abuse and family dis-functionality at previous times. However, her report concluded that the applicant presents as a low risk for future sexual abusive behaviour. The main basis being that the allegations (whether proven or not) were made almost 20 years prior and there have been no similar allegations or instances in the intervening period.

Witness ‘N.W.’s Evidence

62. ‘N.W.’ evidence over the telephone. The witness had filed an affidavit dated 12 June 2015 (Exhibit A3). Annexed to the affidavit and marked ‘A’ is a letter signed by ‘N.W.’ on 12 November 2014. The witness was asked about this letter. His evidence was that he was asked by the applicant and his spouse if he would sign such a letter. In giving evidence he stated that ‘if he had known that it was going to be used in a Court case then he wouldn’t have signed it.’

63. He clarified his earlier answer by saying that he provided the letter for the check or clearance process but didn’t think that it would be used in a hearing. The letter sets out ‘N.W.’s view that the complainant / victim (‘N.W.’s daughter) falsely accused the applicant. His oral evidence was that he believes that the complainant / victim made the allegations up.

64. The witness provided evidence that the relationship with the victim / complainant is quite strained in that following the allegations she did not come and visit him again for the school holidays whilst a child. His evidence was that he speaks to his other daughters. In his affidavit he states that:

4. As a parent who will always be concerned for the welfare of my daughters, it is very difficult now for me to give a statement which goes against what my daughter said, however I can confirm that the contents of the letter is true as to my belief.

65. The witness provided evidence in his affidavit that he has seen no evidence of the applicant behaving in a manner which would be in the nature of harming children. In over 27 years the witness had never seen the applicant show any signs of inappropriate behaviour to or around children.

The Respondent's evidence

66. The respondent filed section 58 documents in the matter, and their submissions and argument were mainly focused towards the applicant’s minor (pre 1998) criminal antecedents, and significantly focused on the 1998 serious child sexual assault allegations.

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.

67. The applicant's application to the Tribunal is brought about by an adverse risk assessment of him by the respondent. Those matters encompass the five charges set out at paragraph 34 (above). These matters (if proven) are extremely serious allegations and would clearly indicate that the applicant would pose a real and appreciable risk to the safety of children and young persons. If the applicant was convicted of any of the charges he would be deemed under the Act to be a disqualified person. Therefore in the context of child protection and working with children, these matters are indeed serious.

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

68. The matters referred to in the risk assessment are alleged to have occurred in 1998, over 17 and a half years prior to the NCAT hearing. In the interim the applicant has not come to attention. His minor traffic record and larceny matters all predate the serious allegations of 1998 and occurred when the applicant was between 20 and 21 years of age.

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

69. The applicant was approximately 28 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.

70. The complainant / victim was an 11 or 12 year old girl when the alleged incidents occurred. The complainant / victim was allegedly in the care of the applicant as she was staying overnight at his home with his children.

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

71. The difference in ages was approximately 16 years.

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

72. It is clear that the applicant knew that the complainant / victim was a child.

(g) The person's present age.

73. At the time of the hearing the applicant was 45 years of age. The present age is in our view not determinative of any matters, partially because there was no finding of the offence being proven but also because whilst there is a propensity for sexual offending to decrease with age after a certain point. The applicant is currently middle aged and denies the allegations.

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

74. The applicant does have a criminal record. Whilst the larceny charge relates to the applicant being is a position of trust, we note that it occurred when the applicant was 21 years of age. We also note the account given in the applicant’s affidavit dated 12 June 2015. Whilst there was a brief period of unemployment, the applicant has been employed in some capacity since leaving school around 1986. Whilst there is one recorded instance of police being contacted over a domestic type incident, no detail is provided and it is clear from the material before the Tribunal that no further action arose. In our view on the totality of the evidence and material before the Tribunal, the applicant has not come to adverse attention since the 1998 matters involving the serious allegations.

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

75. Based on the expert report provided by the applicant, it would appear that the likelihood of offending is low. The report is predicated on a positive finding that the allegations occurred, and notwithstanding that assumption, maintains that in accordance with the applicant’s current psychological state, having considered the dynamic risk factors relating to sexual abuse, (the applicant), would represent a low risk of future sexually abusive conduct. (Pg. 12 of Report of Dr K Seidler dated 2 June 2015).

76. In addition, the applicant submits that there is no likelihood of any repetition because the offences did not occur.

77. However, the respondent's view is that there are a number of factors which would tend to elevate risk. In noting those ‘elevating factors’, we note that they were addressed by the expert and their existence did not interfere with the ultimate conclusion of the report.

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

78. The applicant tendered a number of references and evidence was given by two witnesses. In addition the applicant’s own evidence highlights the apparent inconsistencies in the complainant / victim’s statements. Two affidavits are provided by nieces of the applicant which provide evidence as to their appropriate interactions with and observations of the applicant during their childhood and when staying over at his family home. The references and affidavits are positive to the applicant’s case for determination. None of those authors were required for examination by the respondent.

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

79. The respondent only raised one issue in submissions on this point, being that the applicant advised the Clinical and Forensic Psychologist that he intended to remain working for the foreseeable future in his non ‘child–related’ line of employment. In oral submissions the respondent opposed the granting of the orders sought in the application.

Respondent’s Submissions

80. The respondent submits that a clearance should not be given to the applicant. The respondent in our view correctly identifies that the issue which falls to the Tribunal is to determine risk.

81. The respondent submits that there are three episodes where abuse is alleged. Whilst the respondent conceded that there were inconsistencies in the victim / complainant’s evidence, they submit that there were a number of reasons why the allegations should be seen as reliable.

82. The respondent submits that the victim / complainant made a contemporaneous disclosure and that this was backed up by reports and actions by both DOCS and Police.

83. In addition the respondent submits that there is nothing in the material to explain why the victim / complainant would make up the allegations. In addition the respondent submitted at the end of the evidence, that the making of a finding (or not) on the evidence before the Tribunal, is not the end of the matter.

84. In written submissions the respondent referred to the case of BKE v Children’s Guardian [2015] NSWSC 523. In that case the Court examined the approach in a Family Court appeal in the case of M v M (1988) 166 CLR at 77 to 79. Specifically the Courts were addressing the issue of making findings on the evidence to the applicable standard, in respect of matters that would be criminally adverse to an applicant. At paragraph 33 of BKE His Honour said:

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.

85. The respondent submitted that even if the Tribunal is not satisfied that the relevant allegation is proved, it is still possible that the Tribunal might conclude that there is a real and appreciable risk to the safety of children.

86. The respondent then submitted that the evidence and matters covered by section 30 (1) demonstrate that the applicant poses a risk to the safety of children.

Applicant’s Submissions

87. The applicant highlighted some minor errors and inconsistencies in the respondent’s material. There were no allegations of violence other than the alleged assaults of a sexual nature.

88. The applicant submitted that there was no real and appreciable risk and that nothing adverse was raised by Docs or the expert report. The applicant submitted that the action of the respondent in assuming that the allegations were factual, is unfair to the applicant, bearing in mind his denial of the allegations, and that no apparent attempt had been made to contact the victim / complainant or the other persons who made statements to police. The applicant submitted that there has been insufficient weight given to the matter by the respondent in such circumstances.

89. Some references were made to caselaw arising in the decision of BKE, however the Tribunal notes that BKE was concerned with an enabling order under section 28 of the Act. The current matter concerns a clearance following an adverse risk assessment.

90. This is not a matter where such an applicant is presumed to be a risk to the safety and well-being of children and young persons.

Consideration

91. We have carefully considered all of the material before the Tribunal.

92. Other than the charges which caused the risk assessment trigger, there was no other cogent material placed before the Tribunal which indicated any level of real or appreciable risk. The expert report concluded with a mitigated level of potential risk, notwithstanding the continued presence of certain elevating factors.

93. If the charges were not present, then in our view there is no cogent evidence or material identified during the hearing and examination of the evidence which goes to establishing any relevant level of risk. There is no continued pattern or similar allegations either prior to or after the 1998 matters.

94. Whilst it is open to the Tribunal to make a finding on the allegations which caused the risk assessment, our real task is to consider any material (finding or otherwise), in the context of whether the applicant poses a risk, having regard to all of the material before the Tribunal. It is evident that if it was open to the Tribunal to make a finding (on the basis of the evidence and material before the Tribunal) that the allegations occurred on an assessment to the applicable standard required of the Tribunal, then that would in all likelihood elevate the risk and cause significant concerns about the import of the granting of any clearance.

95. However, in considering as to whether the criminal allegations (involving charges) occurred, 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 have no truth, (or in the alternative - have truth), but rather that we are unable to positively determine them. In reaching that conclusion we are of the view that we are required to be reasonably satisfied as to their veracity (on the balance of probabilities). Therefore whether those matters occurred, or did not occur remains open, but in our view, on the evidence presented before the Tribunal, there is insufficient material to make such a finding.

96. We have carefully considered all of the evidence and submissions given, and filed by the parties even if we have not referred to every aspect of it specifically in these reasons.

97. In our view the material that was before the respondent as part of the administrative decision making process (s.58 documents) identifies matters which warranted a risk assessment. In addition we are of the view that the material could give rise to a finding that there is a real and appreciable risk to the safety of children and young persons. In that regard we understand how the respondent reached the administrative decision that it did.

91. However, whilst we make no positive finding on the alleged conduct (from 1998), in the absence of a finding, and having regard to the other material before the Tribunal, in our view there is insufficient evidence and material to make a finding that the applicant poses a real and appreciable risk to the safety and well-being of children and young persons.

Conclusion

99. For the reasons set out above, and specifically having regard to the matters as set out in section 30 of the Act, and paragraphs 91 to 98 (inclusive above), we reach the following conclusion.

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

101. Therefore in our view 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.

102. In expressing these views above 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.

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

104. 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 Children's Guardian dated 3 February 2015 to refuse to grant the applicant a Working with Children check clearance is set aside.

2. In substitution for that decision of 3 February 2015 BRL is granted a working with children check clearance.

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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: 12 February 2016