BXG v Children's Guardian

[2016] NSWCATAD 56

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BXG v Children’s Guardian [2016] NSWCATAD 56
Hearing dates:	10 November 2015
Date of orders:	30 March 2016
Decision date:	30 March 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member B Field, General Member
Decision:	The decision of the respondent is affirmed.
Catchwords:	CHILD protection – Working with children – Risk – Whether risk real and appreciable – Risk of harm – whether successfully rehabilitated – Health conditions leading to relapse – whether evidence sufficient to discount existence of real and appreciable risk – Supervised conditional access – Clearances unconditional
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998
Cases Cited:	BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 Commission for Children and Young People v FZ [2011] NSWCA 111 R v Commission for Children and Young People [2002] NSWIR Comm 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 ADV v Commission for Children and Young People [2012] NSWADT 8 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 Makita (Australia) v Sprowles 2001 NSWCA 305
Category:	Principal judgment
Parties:	BXG (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Lowsen (Respondent)   Solicitors: BXG (Applicant in person) Crown Solicitors Office (Respondent)
File Number(s):	1510294
Publication restriction:	s64 (1) Civil and Administrative Tribunal Act 2013

Reasons for decision

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

2. On 30 July 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 11 May 2015, the Children's Guardian made a decision to refuse to grant BXG a Working with Children Check clearance. On 29 May 2015 the applicant BXG applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act.

Background

5. On 2 August 2014 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 pursue her possible volunteer work opportunities with her local Church, comprising Sunday School and Play Group duties. The applicant is otherwise trained qualified and locally approved to conduct this work, however she still requires a working with children clearance prior to being able to undertake such work.

6. During the period from August 2014 until May 2015 the respondent considered the applicant's application. In December 2014 the respondent put the applicant on notice that they had identified information which required a risk assessment, due to the fact that previously, the applicant had been subject to proceedings and convictions 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). On 27 March 2015 the respondent notified the applicant that they proposed to refuse her application for a clearance. (Notice of Proposed Refusal of Application).

8. The applicant provided a response to the proposed refusal. After considering all of the material and reviewing the matter, on 11 May 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 29 May 2015 the applicant lodged an application for administrative review before the Tribunal. The grounds of the application are that: 'Significant change in circumstances with sufficient evidence provided to support the change and its stability.’ There is no dispute that the application to the Tribunal 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] NSWIR Comm 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 application was heard on 10 November 2015. The applicant was not legally represented but had received some assistance either pro-bono or via a limited grant to assist with the preparation of her case. The respondent was represented by Counsel. At the conclusion of the hearing the Tribunal reserved its decision.

32. 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.

33. A significant amount of material was tendered at the hearing by both parties. The applicant tendered one affidavit with numerous annexures. In addition written submissions were received from the applicant, 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, which comprised three large sub-volumes with over 1000 folios.

34. Only the applicant gave oral evidence at the hearing.

Applicant's Evidence.

35. The applicant gave oral evidence at the hearing. The applicant was asked during evidence in chief and cross-examination about her occupational and domestic history. The historical matters were primarily concerned with the history of offending, the subsequent placing into care of her children, and the current nature of supervised access and her own functioning. The applicant clarified in evidence that she had made an earlier application for a working with children clearance in 2013. Her evidence was that she had withdrawn that application after receiving verbal advice from an employee at the office of the Children’s Guardian that there had not been a long enough period between her release from custody and the application. The Tribunal is unsure of the factual import of this information.

36. At the hearing the applicant gave evidence that her daughter is 13 years of age, and her son is 12 years of age. She currently has 10 visits per annum of 2 hours duration. These visits are supervised in that a Departmental officer or representative is present during the visits and her mother has also played a role in respect of visits.

37. The applicant’s evidence was that she currently has three support networks, being her Church, her family and her friends. The applicant recently had a third child and gave evidence that to her knowledge, the Department will not be uplifting this ‘new born’ child. The child arises from a more recent relationship which has now ended. The father of the child is a person that the applicant knew from her school days, and her evidence was that she did not know them during the period of crisis when her criminality took place.

38. The applicant confirmed in her evidence that during the contentious period whereby her involvement with the criminal justice system occurred, she was using various illegal drugs. Her evidence was that she used cannabis and ‘speed’ (amphetamines), but disputed the use of extreme amphetamines such as ‘Ice’.

39. In cross-examination the applicant was questioned about the significant offence in her history involving a firearm. Her evidence at the hearing was that she found the firearm in her residence, being the property of her then partner. Her evidence was that she should have contacted police but that she made the wrong choice. The applicant maintains that her general anxiety, as observed within the respondent’s evidence, might have been misinterpreted as ‘aggression’. However it was put to the applicant that there was no evidence of aggressive behaviour towards staff.

40. The applicant was asked about an incident referred to in the respondent’s evidence, concerning the apparent leaving of two children (then 12 months and 3 months of age) alone. The applicant’s evidence was that she went out to pay the rent and obtain urgent supplies, and that it was pouring with rain at the time and that there were ‘no supports’ available. The applicant denied the general proposition put to her by the respondent that her children were abused in her care. An alleged incident involving the poor state / appearance of her children on 10 June 2004 was denied by the applicant. The incident was noted in a care report prepared for the initial care proceedings in the Children’s Court. The applicant’s evidence ultimately was that she did not recall the incident.

41. The applicant does not accept the notations with the various reports within the section 58 documents produced by the respondent that she is an intravenous drug user. The applicant does not accept assertions that her daughter was seen to have a significant bruise on her arm, or that her children had chronic and ongoing infestations of head lice. The evidence was that the removal of the children occurred at a similar time to the applicant’s incarceration, following a report of her son found wandering the street too scared to return home. The section 58 material indicates that this occurred around 4:00am.

42. The applicant in her evidence accepted that at the relevant time in her offending, there were periods where she was drug affected, and as a result conceded that this may have impacted on her ability to parent appropriately.

43. The applicant was asked about a ‘reckless driving’ allegation. The applicant says that she pulled into a driveway and a person on a bike rode into her vehicle. The applicant was also questioned about an incident where her daughter had walked out of home. The applicant’s evidence was that none of the partners at the relevant time were de-facto partners (in that they did not live at her premises with the children), but that the partners would stay over from time to time and not live there.

44. The applicant was asked some questions by the Tribunal in respect of her drug use, and the nature of the people that she associated with at the time of the significant offending.

45. The applicant gave evidence that her then drug use impacted on (or dictated) the type of people that she associated with at that time. A partner ‘T.P.’ was proffered as an example of the inappropriate people that she was involved with at that time. Her evidence was that she no longer uses drugs and is a different person to the person that she was when she went to prison and was on drugs.

35. The witness gave evidence that she has come a long way in her rehabilitation but noted that she still does not have unsupervised access to her children. She has been involved with her Church for the last three years.

36. In re-examination the applicant gave evidence she had previously suffered from Post Natal Depression. The applicant is currently seeing a psychologist and is taking anti-depressant medication. She leads a different lifestyle now, in that she has a new life.

37. ‘T.P.’ was involved in her life from 2003 to 2007, and he was also a drug user. The applicant’s evidence was that this person was quite violent. The applicant also gave evidence that a subsequent partner was involved in criminal activity and was now deceased. The Department had previously advised the applicant that the later partner was a risk to the well - being of the applicant and her children.

38. The applicant was questioned about various applications for victims compensation made through the Government scheme in respect of assaults sustained from her former partners. The applicant also gave oral evidence in respect of her medical conditions and referred to a diagnosis of gestational diabetes in respect of her most recent pregnancy.

39. The applicant provided within her affidavit evidence a large amount of personal references, course completion certificates and other qualifications, as well as a copy of a letter / report from her treating psychologist. Whilst the respondent objected to an opinion expressed by the psychologist (in respect of the applicant’s level of risk to children), the report confirms various matters in respect of the applicant’s current diagnosis, functioning and prognosis.

The Respondent's evidence and submissions

51. The respondent filed over 1,000 folios comprising their section 58 documents and material, which in their view formed the basis for their administrative decision to refuse the applicant’s application for a clearance.

52. The respondent submitted that the applicant does not possess a genuine insight into her offending, and looks to blame other people. The respondent submitted that the applicant blames her counsellor for a number of matters, such as being admitted to hospital. It was also submitted that the applicant minimised her behaviour by blaming others, such as the men who at the relevant time were present in her life.

53. The respondent submitted that notwithstanding the applicant’s current psychological treatment, it was not sufficient to enable her to get her children returned to her care. In addition the respondent highlighted information in the applicant’s sentencing report whereby a six month non parole period was imposed due to the applicant’s mental health / illness.

54. The respondent raised issues that in respect of certain aspects of the applicant’s antecedents, she had not been entirely frank in her disclosures to the Tribunal.

55. Further submissions were made by the respondent that the applicant was attempting to compensate and had a lack of insight into her relationship with the Department and matters at that time concerning the then imminent birth of her child. Ms ‘D’ the applicant’s treating psychologist statement, it was submitted, did not set out all of the relevant facts and circumstances in respect of the applicant. This was also relevant in that there was some disparity about the level of the applicant’s current supports.

56. The respondent submitted that time needed to pass so that the Children’s Guardian can ascertain as to whether the applicant adequately cares for her newborn child. In the absence of any positive evidence about the applicant, it was submitted that there were concerns about how the applicant would interact and care for children.

57. Whilst the applicant was about to have a baby with some recovery from her earlier conditions and insights, into her earlier behaviours, it was submitted that it was of significant concern that the applicant has failed to have a proper insight into her history and current situation and functioning. The respondent submitted that the applicant does not at present demonstrate ownership of those issues.

Applicant’s submissions

58. The applicant submitted that she had developed great insights and takes responsibility for all current and past matters.

59. The applicant submitted that she leads a different lifestyle now and would cope in a different manner. In the applicant’s opinion the Department has no doubt that she will be a different person as a parent / carer, to the person she was when her eldest two children were young.

60. The applicant submitted that the partner to whom she fell pregnant (the father of the soon to be born baby), was no longer a presence in her life as her current lifestyle was not working in with him. It was submitted that the applicant has identified certain goals, and intends to return to her career / commence a new beauty therapy career.

61. In closing the applicant submitted that she addresses things a whole lot differently now to how she had in the past.

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.

62. The applicant was charged and convicted of the offence of ‘possess loaded firearm in or near public place’ in 2010. Whilst there was no actual injured victim in relation to the offence the Tribunal notes that the applicant had 28 rounds of live ammunition and a loaded firearm.

63. In the 1997 offence of ‘Assault with intent to rob, armed with an offensive weapon’, there were two vulnerable victims being 16 year olds. The applicant attempted to rob the victims by threatening them with a smashed glass bottle.

64. Both of these offences (for which there was a conviction) are offences listed in Schedule 1 of the Act. The offences resulted in a sentence, which for the firearm offence included a 14-month prison term. The firearm offence occurred while the applicant was a full time mother entrusted with the care of her children.

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

65. The applicant’s offending occurred over a 14 - year period from 1997 to 2011. The applicant has provided a large amount of information in support of her current situation. Most of that information is favourable to the applicant, but the references do not address the specific details of her offending behaviour or the manner in which she may or may not pose a risk.

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

66. The applicant was 15 years of age at the time of the 1997 offence and 28 at the time of the second offence.

(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.

67. The first offence involved female victims who were 16 or 17 years of age. The second (objectively most serious offence), did not have an individual victim but clearly on the proof material for the elements of the offence, put the community at some level of risk of potential harm.

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

68. The victims of the first offence were one or two years older than the applicant. There was no specific pre-existing relationship between the applicant and the victims. The applicant was with friends but the victims were unknown and identified as persons to target.

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

69. The victims were minors, and it is reasonable to conclude that the applicant would have been aware of their approximate age due to the circumstances.

(g) The person's present age.

70. The applicant was 33 years of age at the time of the hearing.

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

71. In addition to the 1997 offence (offence 1) and the firearm offence (offence 2), the applicant has been convicted of ten offences between 2001 and 2012. The applicant has not re-offended since the second 2011 offence, and has been of good behaviour since her release from prison.

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

72. No risk assessment was provided by the applicant in respect of her likelihood of re-offending, and her risk to the safety and well being of children. In the absence of such evidence it is difficult for the Tribunal to assess whether the applicant can manage risk factors that might cause her to engage in behaviour which puts children at risk. The opinion as to the applicant’s risk to children, as set out in the psychologist report was objected to by the respondent, (This objection appears to have been along the lines of a Makita v Sprowles type ground, in that it did not establish how the conclusion or opinion was made, other than a mere assertion). Makita (Australia) v Sprowles 2001 NSWCA 305

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

73. The applicant has provided a large volume of material both in her oral evidence and her affidavit and submissions, as to the reasons for her offending, and her current insights and prospects. There are a large number of examples of reasons as to why the applicant committed offences, or lead a lifestyle that was not conducive to the care and wellbeing of her children. Whilst the applicant has provided positive material in respect of her current access arrangements with her children, and their attitude to respite and foster care, and desire to live with their mother, this material stands against the current custody impediments.

74. It is agreed between the parties that the applicant does not currently have custody of her children, and only has supervised access to them. The Tribunal notes the current domestic arrangements that the applicant has undertaken in preparation for the new born, and her occupation, vocational, and religious supports and achievements since her release on parole.

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

75. The Children’s Guardian submitted that the evidence establishes that the applicant has a long and complex history of mental health issues in addition to the current borderline personality disorder diagnosis. These include: presenting with suicidal ideation in November 2011, postnatal depression which was self- reported, and a major diagnosis of Post- Traumatic Stress Disorder, and marijuana abuse.

76. Whilst the applicant no longer uses illicit drugs, the complexity of her diagnosis which has persisted for most of her adult life, indicates that the Tribunal needs to exercise caution in making any long-term conclusions. The respondent submitted that any previous lifestyle recidivism would place children at risk. In the respondent’s view not enough time has elapsed, to indicate that the matters which persisted from 1997 to 2011 would be unlikely to re-occur.

Consideration

77. We have carefully considered all of the material before the Tribunal. In our view the evidence and material set out above indicates that the applicant continues to pose a real and appreciable risk to the safety and well-being of children. That is not to say that she is a risk at the moment, but that due to her 1997-2011 offending behaviour and accompanying lifestyle, the fact that from a clinical perspective PTSD is difficult to treat and that there are myriad behavioural issues, the possibility of relapse is a significant factor. This goes directly to the issue of whether the risk is real and appreciable.

78. We note in particular that the applicant (in the care context) is denied custody of her children, and is only allowed limited access / contact under supervision. Whilst the relevant test or consideration in the care context is somewhat different to the issue before the Tribunal, in our view this situation adds to the concerns regarding risk.

79. We note that this is a protective jurisdiction where the objects of the Act provide in addition to the purpose of the Act, for a paramount consideration concerning the safety, welfare and well-being of children. (s-4).

Conclusion

80. For the reasons set out above, and specifically having regard to the matters as set out in section 30 of the Act (see paragraphs 62 – 76 inclusive above), we reach the following conclusion.

81. The evidence and material referred to in these reasons establishes that the applicant currently poses a real and appreciable risk to the safety of children.

82. 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.

83. 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.

84. In our view having regard to all of the material before the Tribunal, to the requisite standard 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.

85. 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 11 May 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 29 May 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

Decision last updated: 30 March 2016