BVI v Children's Guardian
[2015] NSWCATAD 246
•24 November 2015
|
New South Wales |
Case Name: | BVI v Children’s Guardian |
Medium Neutral Citation: | [2015] NSWCATAD 246 |
Hearing Date(s): | 11 August 2015 |
Date of Orders: | 24 November 2015 |
Decision Date: | 24 November 2015 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | J McAteer Senior Member |
Decision: | (1) The decision of the Respondent is affirmed. |
Catchwords: | CHILD protection – Working with children – Risk to children – Protective jurisdiction – Real and appreciable risk – pattern of allegations – nature of allegations – absence of evidence – denial of allegations – vulnerable victims – challenge to jurisdiction of Tribunal+ |
Legislation Cited: | Administrative Decisions Review Act 1997 |
Cases Cited: | Commission for Children and Young People v FZ [2011] NSWCA 111 |
Category: | Principal judgment |
Parties: | BVI (Applicant) |
Representation: | Counsel: |
File Number(s): | 1510190 |
Publication Restriction: | Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any 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
The Applicant in these proceedings is referred to as "BVI". BVI is the applicant's pseudonym used in these proceedings.
On 9 April 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.
The jurisdiction of the Tribunal under section 28 of the Child Protection (Working with Children) Act 2012 ('the Act') is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. 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.
These proceedings arise because on 25 March 2015, the Children's Guardian made a decision to refuse to grant BVI a Working with Children Check clearance. On 2 April 2015 the applicant BVI applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act.
Background
On 13 May 2014 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a Working with Children Check clearance because he wishes to engage in particular unpaid or volunteer work in the context of his religious community / organisation.
The respondent was required under the Act to process the applicant's application for a working with children check clearance. Initially, as the applicant at that time had a number of serious charges pending against him, the respondent dealt with him as a disqualified person in accordance with section 18 (1) (b) of the Act. However once the charges were withdrawn the applicant’s application was re-examined by way of a risk assessment. The matter was referred for a risk assessment under the Act in November 2014. I note that the applicant and respondent liaised a number of times during the period November 2014 to March 2015 concerning the progress and nature of the risk assessment.
On 12 March 2015 the respondent advised the applicant by letter in accordance with section 19 of the Act that it proposed to refuse the application for a clearance. The purpose of this notice was to again give the applicant the opportunity to submit documents to assist in the respondent's risk assessment.
On 25 March 2015 the respondent refused the Working with Children Check clearance as the respondent determined that the applicant posed a risk to the safety of children. It is that decision which is the subject of this review before the Tribunal.
Notwithstanding the lodgement of an application in these proceedings on 2 April 2015, following the first return of the application on 9 April 2015, the applicant filed a summons in the Supreme Court on 27 April 2014 seeking declaratory relief and to strike out the proceedings before NCAT. On 13 July 2015 the Supreme Court ordered that the summons be dismissed. (CCC v Office of the Children’s Guardian (No 2) [2015] NSWSC 905 ). In reaching its findings the Court found that a proper consideration of the merits of the application should properly be subject to full argument before NCAT in the proceedings brought for statutory review under section 27 of the Act.
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
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).
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).
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.
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.
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.
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.
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.
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.
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
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 Peoplev 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 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.
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.
In this application, an 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 19 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 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).
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". ...'
These observations of Young CJ (in Equity) have 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.
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
The primary issue before the Tribunal in this application as outlined at paragraph 9 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
The applicant's application was heard on 11 August 2015. He has not been legally represented in these proceedings. However, at the hearing I gave leave to BVI’s spouse to appear as his agent pursuant to section 45 (1) (b) (i) of the Civil and Administrative Tribunal Act 2013. At the conclusion of the hearing I reserved my decision.
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.
At the commencement of the hearing, and at various times throughout, the applicant was asked what evidence he wished to put before the Tribunal. Whilst a small number of items were tendered by or on behalf of the applicant, and one of those items constituted a statutory declaration, the applicant himself did not give any evidence during the hearing. The applicant’s position, as articulated by his agent was that he did not intend to give evidence because he had not committed any crimes or transgressions and as such he had no case to answer.
As a result of these matters the Tribunal was somewhat limited in its consideration of the various grounds asserted by the applicant. In that regard the Tribunal could only consider the documentary material and the general assertion by the applicant that there was nothing that could be inferred from the material (which was tendered by the respondent and submitted as adverse to the applicant), and that as there were no positive findings by a criminal court, then there could be no inferences (including risk) drawn from that material.
In addition, as the applicant declined to give evidence he was unable to give a direct account of the various incidents which were raised in material which the respondent put before the Tribunal.
Evidence before the Tribunal
The respondent tendered a large amount of material under section 58 of the Administrative Decisions Review Act 1997 which constituted the material relied upon in making the decision to refuse the applicant a clearance. This material comprised matters relating to police and court records from New South Wales and interstate, material which the applicant had provided the respondent during the assessment process, file notes, reasons for decision in respect of the bar, material concerning statements and medical reports from other parties and copies of the relevant communications between the parties during the assessment and decision making process.
In addition material was tendered by the respondent in response to summons issued for interstate records concerning the applicant. Amongst these records was DVD recording of an exchange / interview between South Australian Police and the applicant in respect of various allegations. The recording did not involve police custody or a police station, but occurred at the applicant’s residence.
The applicant tendered a number of items. Exhibit A 1 was tendered when the matter was first before the Tribunal for directions. The exhibit comprised a statutory declaration of the applicant where he attested his innocence to any allegations of criminal conduct. He also attested to his negative views and abhorrence of some forms of sexual conduct (be they prohibited activities – such as sexual assault and matters involving children) or some legally permissible activities (such as sexual activity between consenting adults outside of marriage, same sex relations etc.).
Other material tendered by the applicant comprised general character / employer references and a copy of a bail report concerning a third party where the applicant was the Guarantor of the Defendant. All of the material filed by the applicant was brief in nature, as contrasted with the large volume of material provided by the respondent. It was also submitted that it showed the applicant in a favourable light and countered the unproven allegations made against him in the past and the submissions currently advanced by the respondent.
The evidence is to be considered by the Tribunal under the provisions of section 30 (1) of the Act, which is set out at paragraph 19 above.
(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.
The applicant was charged in South Australia with indecent assault and unlawful sexual intercourse with a person under 12 in 2004.
The charges related to allegations that the applicant had kissed the victim on the mouth and inserted his tongue into the victim’s mouth. In addition the allegations were that the applicant had digitally penetrated the victim’s vagina. This was alleged to have occurred in the caravan of the victim’s father. The applicant was a friend of the victim’s father. The allegation concerns a period with the father leaving the caravan for a short time (approximately 20 minutes), and the applicant and the victim were alone. The incident is alleged to have occurred over approximately 10 minutes.
The victims’ father was a single parent and the allegations included evidence that the applicant had become close to the victim and her father. This included material from the victims’ father that they had been befriended by the applicant, who said that due to his experience working with welfare agencies he could assist with advice on parenting.
The charges did not proceed at Court as the complainant did not wish to give evidence. The victim was aged 11 years at the time of the alleged offences.
The applicant was charged in New South Wales with Aggravated sexual intercourse without consent inflicting actual bodily harm, and 5 counts of Aggravated sexual intercourse without consent in 2013.
The applicant was alleged to have committed a number of offences against his fiancé in a suburb of Sydney in early 2013. The applicant had moved in with his fiancé and she had gone to a neighbour seeking help following the alleged assaults which occurred over the preceding evening and morning. The applicant was alleged to have physically restrained the victim and engaged in sexual intercourse against the victims will, causing soft tissue injuries, abrasions and bruising and possible external injuries to the victim’s genital region.
The applicant denied the allegations and waived his right to a committal hearing. The matter was listed for trial in the District Court, but the charges did not proceed to hearing as the Director of Public Prosecutions determined that there was little prospect of any convictions due to the complainant (victim) not wishing to proceed with the matter and give evidence at Court. It was these charges which lead to the applicant’s working with children application initially determining that he was a disqualified person (as set out in paragraph 6 above).
(b) The period of time since those offences or matters occurred and the conduct of the person since they occurred.
The alleged offences in South Australia occurred in 2004. It has been over a decade since the alleged commission of those offences. In the intervening period the applicant has come to police attention both in New South Wales and South Australia. The applicant was charged in 2013 with Aggravated sexual intercourse without consent inflicting actual bodily harm, and 5 counts of aggravated sexual intercourse without consent in New South Wales. In the interim period between the two suites of charges there were instances where the applicant came to police attention.
A witness statement obtained by the respondent from South Australian Police indicates allegations concerning the applicant loitering around a primary school at lunchtime in 2004.
The period January 2007 to March 2012 is unaccounted for in the respondent’s material concerning the applicant.
In the respondent’s material case notes and a DVD supplied by South Australian Police concerning allegations involving the applicant and a 16 year old female in 2012 were tendered. The Tribunal was shown a DVD which contained a Police Interview with the applicant at his abode where an official warning (in the context of child protection provisions) was given. The police action was conducted under the provisions of the Summary Procedure Act 1921 SA.
(c ) The age of the person at the time the offences or matters occurred.
The applicant was born in 1967. The 2003 charges relate to allegations when the applicant was approximately 36 years of age. The 2013 charges relate to allegations when the applicant was approximately 46 years of age.
(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 the 2003 allegations the victim was approximately 11 years of age. The victim was the daughter of an acquaintance of the applicant. Her father was a single parent and he and his daughter were living in a caravan on a site in a caravan park. The applicant befriended the applicant and his daughter and irrespective of any finding about the conduct, the applicant developed and gained the trust of the father and his daughter, so much so that he was trusted to be left alone with her for short periods. The applicant stayed over in the caravan every second or third night according to the father.
In the 2013 allegations the victim was approximately 47 years of age. The victim was engaged to marry the applicant. The applicant had moved in with the victim shortly after commencing the relationship with her. The victim had a history of being diagnosed with schizophrenia for many decades and was prescribed medication. The unchallenged material of the victim was that she had not been taking her medication and the applicant was aware of this. In addition there was material before the Tribunal which indicated that the applicant had encouraged the victim to take part in using recreational / illicit drugs whilst knowing of her psychological frailty.
(e )The difference in age between the victim and the person and the relationship (if any) between the victim and the person.
In the 2003 alleged offences the applicant was 25 or 26 years older than the victim. The applicant being an adult and the victim being a child. The nature of the relationship was that the victim was the daughter of an acquaintance of the applicant, but that adult to adult relationship was somewhat dependent in that the victim’s father relied on the applicant for advice and assistance. In the period around the offences the applicant stayed over two or three nights per week.
In the 2013 alleged offences the victim and the applicant were of similar ages, being 47 and 46 respectively. The victim and the applicant were in an intimate relationship which allegedly included sexual intimacy. They were engaged to be married and were living together.
(f) Whether the person knew or could reasonably have known, that the victim was a child.
In the 2003 allegations it is clear that the applicant would have known the victim was a child, even if he was not aware of her exact age.
(g) The person’s present age.
At the time of the hearing the applicant was 48 years of age.
(h) The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred.
The applicant does not have a criminal record. I do not accept that the minor matter raised by the respondent in submissions constitutes a criminal record, as the matter would not be relevant in calculating a ‘crime free period’ for the purpose of Part 2 of the Criminal Records Act 1991.
The conduct of the applicant since the alleged offences occurred has been predominantly provided by material raised in the applicant’s submissions filed after the conclusion of the hearing, as well as oral submissions made by his agent at the hearing. There was also a small amount of evidence tendered by the applicant, including an ‘employer Reference’ from his General Practitioner which was marked as Exhibit A2.
The applicant’s position is that he is involved in his Christian based church group and has conducted (or desires to be involved in) street preaching.
The Tribunal only had minimal material before it which did not relate to the respondent’s grounds for refusing a clearance. In that regard the section 31 material obtained by the respondent was predominantly provided to support the respondent’s position. In this regard it could be considered as adverse or not assisting the applicant in his application to the Tribunal. However, due to the approach adopted by the applicant to the proceedings, in that minimal evidence or material was put before the Tribunal other than written submissions, there is no detailed information about the applicant’s conduct outside of the alleged instances / conduct.
(i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition.
It is difficult to address this issue unless a finding was to be made by the Tribunal about the conduct relied upon by the respondent. I note that there are a number of alleged incidents which involve a potential pattern of conduct involving sex based allegations relating to vulnerable victims with whom there was an established relationship of trust between the victim and the applicant. Clearly if such conduct was to occur in the future, the impact would be significant on a victim, either a child or adult victim.
In respect of the 2013 allegations the respondent provided evidence of deterioration in the victim’s mental health following the alleged incidents.
(j) Any information given by the applicant in, or in relation to, the application.
As outlined in paragraph 58 (above), the applicant has provided minimal material in support of his case. His agent submits that there is no case to answer. In this regard the applicant has predominantly refused to take an active evidence based role in the proceedings, largely rebutting the respondent’s position by way of objections, and challenges to the jurisdiction of the Tribunal and the respondent generally. I do note that this ‘challenge’ is not directed at the working with children scheme generally, but in matters whereby an adverse risk assessment arises form matters that have not been determined to the requisite standard by a criminal court. This is the applicant’s main challenge to the respondent’s decision. That is, that no adverse finding has been made against him in the criminal jurisdiction.
Whilst in the main the applicant has chosen not to file or give oral evidence in the proceedings, he was advised a number of times during the proceedings that the Tribunal would make the correct and preferable decision having regard to the legislation and all of the evidence and material before it.
The applicant’s ‘response to respondent’s submission’ dated 6 August 2015 were prepared by the applicant’s agent who is his spouse. Those submissions set out to rebut the respondent’s arguments and infer that to draw an inference that the applicant is a risk to the safety and well-being of children, (from those two suites of charges),
Would be violating article 14(2) of the International Covenant on Civil and Political Rights ratified by Australia in 1980 which states, ‘Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.’
A large number of other arguments were made in these submissions, and written submissions prepared after the hearing of the matter. However in the main these matters related to technical legal rebuttals of the respondents case, which were predominantly argued in the absence of an exculpatory evidence to support the applicant’s position.
This situation was also repeated in the ‘Plaintiff’s Response to s.58 documents’, which the applicant filed in May 2015. In that document the applicant either requested that certain material relied upon by the respondent be rejected, or for just under half of the material the response entailed: ‘No comment at this stage’.
I have read and considered all of the written material provided predominantly by way of submissions on behalf of the applicant. Even though I do not specifically refer to all and every aspect of that material in these written reasons, I have taken it into account. A significant amount of the material was however directed at the applicant’s general objections to the proceedings.
(k) Any other matters that the Children’s Guardian considers necessary.
In addition to the matters outlined above, the respondent tendered material relating to other incidents or matters of concern whereby the applicant had come to the attention of government authorities in South Australia in the context of his interactions with children and young persons.
In addition to the two incidents which resulted in charges, the issue of the police warning, and the information concerning the applicant loitering at a school during lunch, the following matters were raised before the Tribunal.
A police report from June 2015 where there were concerns about the behaviour of two boys who were left in the applicant’s care by the parents. It was alleged that the applicant gained the parent’s trust by offering to assist with the setting up of a family computer. These matters are alleged to have arisen around 2005.
A police report detailing concerns by a witness about the applicant’s behaviour with the 11 year old victim of the 2004 charges, when both were in the applicant’s car near the riverfront.
Police reports from 4 witnesses concerning observations of inappropriate behaviour from the caravan when the applicant was present. (these allegations arise in the same context as the 2005 charges relating to the 11 year old victim).
The ‘police warning’ incident referred to above involved allegations which lead to the warning as set out at paragraph 35 (above) and also allegations of inappropriate e-mail / text communications between the applicant and a 16 year old female and drug supply to her 13 year old sister.
The respondent also referred to matters involving Family and Community Services intervention in the applicant’s current domestic arrangements, in that the children of his spouse had been removed from her care under an Emergency Protection Order due to the applicant residing in the home of his spouse.
Whilst no evidence was tendered in respect of these references and they arose in the reasons provided by the respondent in respect of the section 20 notice of decision bar, care records were provided within Exhibit ‘R 1’.
Applicant’s submissions
The applicant’s agent submitted that there were three issues for the Tribunal to consider. (1) that the Children’s Guardian cannot be satisfied as to risk, (2) that the Tribunal cannot support a finding that there is a risk (on the available evidence), and (3) the international conventions and covenants (as summarised above) prohibit a positive finding in respect of both conduct and risk.
This is not a case where any onus resets on a particular party. However, it is accepted that subsequent disclosures by the victim during the investigation of that incident resulted in charges against the applicant.
The applicant’s agent submitted that the Tribunal did not have the legislative power to make findings and cannot form a view as to future risk in the absence of such findings.
At the conclusion of the hearing the applicant was invited to file and serve written submissions within 10 days. Those submissions in part sought to discredit aspects of the criminal allegations and find fault with procedural aspects of police action, and nullify aspects of the police material on various technicalities.
In the absence of any substantive evidence from the applicant, the submissions took the form of a critique of the respondent’s written and oral submissions and case generally. In addition the agent (on behalf of the applicant) disputed in written submissions that the Tribunal had either the authority or jurisdiction to reconsider previous criminal charges. Further there was criticism of the risk assessment process of the respondent generally and that their processes were not satisfactory.
Reference was made in submissions to the case 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. Significantly submissions focused on whether the Tribunal being satisfied that a particular allegation on the available evidence had not been made out, whether the Tribunal could still be satisfied that the applicant did not pose a real and appreciable risk.
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.
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.
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 ).
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.
Considerations and Findings
I have carefully considered all of the material before the Tribunal. There are two instances whereby serious criminal charges arose based on an examination of the evidence gathered in respect of the applicant’s alleged behaviour. One of those instances goes directly to matters pertaining to the risk to children and young persons (the 2004 charges). The other instance goes to serious charges concerning matters referred to in Schedule 1 and 2 of the Act. Whilst those charges do not relate to a child victim, they go specifically to offences of violence and sit squarely within the compass of matters specified under the Act.
In making a finding as to whether the criminal allegations (involving charges) occurred, I find that I am unable to make a positive finding. In doing so I find that the evidence in the form submitted at the hearing is (in my 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 than I am unable to positively determine them, in that I am 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.
However, in the context of whether the applicant poses a risk (notwithstanding the finding above), having regard to all of the material before the Tribunal, including the pattern of the allegations and the similar theme running through the allegations, I find that the existence of a real and appreciable risk has not been disproven.
The number, nature and similarity of the allegations, are relevant when assessing risk. In addition, some of the respondent’s evidence shed doubt on the truthfulness of aspects of the applicant’s material. The applicant has a duty under section 27 (4) of the Act to fully disclose to the Tribunal any matters relevant to the application. In material and submissions put to the Tribunal, the applicant indicated that he had never been subject to a warning from South Australian Police. Aspects of this evidence were challenged by the contents of ‘R 3’ which were viewed during the hearing.
The respondent submitted a number of matters to the Tribunal during the course of the hearing that in their view identified aspects of the behaviour surrounding the allegations which went to establishing significant risk.
The respondent submitted that in respect of some of the interstate allegations, the applicant was allowing himself to be unsupervised and in a position with a child or a young person.
It was also submitted by the respondent that the reoccurring presence of and reference to cannabis use and supply (in the context of children or vulnerable persons), was indicative of a lack of insight by the applicant as to the consequences of his actions and behaviour.
It was further submitted that the alcohol and cannabis use in the context of the allegations showed what the respondent considered to be entrenched behaviours of the applicant.
Whilst there can be an absence of a positive finding in respect of various allegations, the nature of the allegations may be indicative of a pattern of behaviour.
The respondent relied upon the case of BLD v NSW Office of the Children’s Guardian [2015] NSWCATAD2. In respect of risk, the respondent drew the Tribunal’s attention to paragraphs 11 and 118 of that decision.
117. The behaviour of the applicant over a number of years has been beyond reasonable community norms. The behaviour is sufficiently recent, and if repeated, would do significant harm. There are very few identified mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence of concerning behaviour is over a significant period, and there has been little if no genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not properly considered to be a factor that mitigates risk.
118. There is a likelihood that the applicant will repeat his behaviour and conduct which led to the offences identified earlier in these reasons. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children.
It was submitted that the current proceedings were somewhat analogous with BLD when it came to behaviour and context in which the allegations were framed.
The applicant was given a final opportunity to consider whether to provide further evidence which the Tribunal could weigh in respect of both the allegations and the risk. Following a brief adjournment after the conclusion of the respondent’s evidence the applicant advised the Tribunal that he did not wish to provide further evidence.
Conclusion
In the context of the matters canvassed in BKE, in my view the absence of a positive finding in respect of offences, does not (on the current evidence and material), obviate the existence of risk in this matter. As the Supreme Court stated that in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, the Tribunal 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.
I am satisfied that during the course of the proceedings, the applicant was given a fair hearing and afforded the requisite level of procedural fairness and that there was no denial of natural justice arising from how the Tribunal received his case.
The applicant and his agent were repeatedly reminded of what the Tribunal’s role was, and how they might wish to consider rebutting or extricating the applicant from the allegations and findings presented by the respondent against him both in regards to the allegations and their views on risk.
For the reasons set out above, and specifically having regard to the matters as set out in section 30 of the Act (see paragraphs 38 – 70 inclusive above), I reach the following conclusion.
The evidence and material referred to in these reasons establishes that the applicant poses a real and appreciable risk to the safety of children.
The evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety and wellbeing of children.
I 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.
In my view having regard to all of the material before the Tribunal, the applicant poses a risk to the safety of children. In this regard the respondent was obliged, in determining the application for a clearance, to refuse to grant a clearance to the applicant.
It therefore follows that the correct and preferable decision is for the Tribunal to affirm the decision of the Children’s Guardian.
Orders
(1)The decision of the Children’s Guardian dated 25 March 2015 to refuse to grant the applicant a Working with Children check clearance is affirmed.
(2)The application for review of the decision of the Children’s Guardian filed 2 April 2015 is otherwise refused and 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
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