BXJ v Children's Guardian

[2016] NSWCATAD 11

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BXJ v Children's Guardian [2016] NSWCATAD 11
Hearing dates:	4 December 2015
Date of orders:	12 January 2016
Decision date:	12 January 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson - Senior Member Dr B Field - General Member
Decision:	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 4 June 2015 is otherwise refused and dismissed.
Catchwords:	ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance-what the correct and preferable decision is having regard to the material before the Tribunal - whether the applicant poses a risk to the safety of children – stay previously granted on conditions- further stay sought and refused-.charges of “stalk/intimidate intend fear physical harm” pursuant to section 13 (1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) dismissed- charges of “armed w/i commit indictable offence” in respect of daughter and stepson pursuant to section 114 (1) (a) of the Crimes Act 1900 (NSW) dismissed and “custody of knife in a public place” pursuant to section 11C (1) of the Summary Offences Act 1988 (NSW) finding of guilt- previous conviction for assault occasioning actual bodily harm of applicant’s wife in 2006 where applicant received a 12 month bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW)- Apprehended Violence Orders made against the applicant in 2006 and 2013 - long history domestic violence between the applicant and his wife - onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety of children- the correct and preferable decision is to uphold the decision of the Children’s Guardian and refuse to grant a working with children clearance.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Children and Young Persons (Care and Protection) Regulation 2012 Civil and Administrative Rules 2014 Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW) Summary Offences Act 1988 (NSW)
Cases Cited:	ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWCATAD 65 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children’s Guardian [2013] NSWADT 310 BZU v Children’s Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Elgammal v Director General, Department of Transport [1999] NSWADT 82 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 New South Wales Bar Association v Stevens [2003] NSWCA 95 Polini v Gray (1879) 12 Ch D 438 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	BXJ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: F Meghami (Applicant) A Douglas-Baker (Respondent)   Solicitors: Legal Aid NSW (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510314
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013- restriction on publication of information that will identify the applicant, any children or victims, nonprofessional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

Judgment

Introduction

1. The applicant, known as “BXJ” in these proceedings, on 4 June 2015 filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 (“the Act”) concerning a decision of the Children’s Guardian, made on 11 May 2015, to refuse him a Working with Children check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.

2. The Act came into force on 15 June 2013.

3. The applicant applied for a working with children check clearance on 28 August 2014.

4. On 7 April 2015 the Children’s Guardian forwarded a notice of proposed refusal in accordance with section 19 of the Act. The applicant was given the opportunity to submit further information in support of his application.

5. In a letter from the Children’s Guardian to the applicant dated 11 May 2015 the applicant was informed that the Children’s Guardian decided that he poses a risk to children. The applicant wishes to continue to be employed as a bus driver transporting schoolchildren as well as other passengers. The applicant was refused a Working with Children Clearance preventing him from working in “child-related work”: section 6(2)(l) and section 8 of the Act; clause 15 of the Child Protection (Working with Children) Regulation 2013. The driving undertaken by the applicant constitutes that form of employment.

6. On 2 October 2015 the applicant filed an application for an interim order staying the decision. On 26 October 2015 Principal Member Higgins granted a stay, on conditions, to the date of final hearing which was set down on 4 December 2015.

7. The applicant was competently represented by a solicitor in the employ of Legal Aid NSW and Counsel briefed by that solicitor. The application for review was heard by the Tribunal on 4 December 2015. After hearing all the evidence the Tribunal declined to grant a stay which was sought by the applicant pending the delivery of these reasons. The respondent opposed the grant of a stay. The reasons for refusing the stay are contained within the reasons for decision which follow.

8. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

9. In summary, the Tribunal has previously determined that when hearing an application under section 27 of the Act the operation of the decision being reviewed may be stayed by reason of section 60 of the Administrative Decisions Review Act 1997(NSW): BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111.

10. The review does not act as a stay of the decision under review. It is to be observed that the discretionary power is restricted by the operation of section 61 of the Administrative Decisions Review Act 1997 and that restriction has been satisfied in this matter, because the “administrator who made the decision” is represented and able to make submissions in relation to whether there should be a stay or an order affecting the operation of the decision under review.

11. Additionally, conditions may usually be imposed while granting a stay for a specified period of time, or if no period is specified until the decision of the Tribunal on the application takes effect: section 62 Administrative Decisions Review Act 1997; Elgammal v Director General, Department of Transport [1999] NSWADT 82.

12. The Tribunal is now charged to decide what “the correct and preferable decision is having regard to the material then before it”, which material may not have been before the Children’s Guardian: section 63 Administrative Decisions Review Act 1997. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That decision in this matter will not be made until the matters for consideration under section 30 of the Act are taken into account as they are later in these reasons for decision.

13. The considerations which are also required to be taken into account in section 60 (3) of the Administrative Decisions Review Act 1997, are:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

14. Generally, in civil litigation a stay of the operation of a decision pending an appeal is granted where a successful appeal would be useless or futile unless the stay were granted: Polini v Gray (1879) 12 Ch D 438. This application is not an appeal but an administrative review, but there is force in the rationale behind the grant of a stay in those circumstances. Those circumstances do not apply to this review because the period of time during which there is a refusal of a stay is only until the comparatively short time between the final hearing and the final decision constituted by these reasons for decision. The grant of a stay in those circumstances is in effect pre-empting the final decision which may be inconsistent with the grant of a stay.

15. It has also been said that the overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83].

16. Where a decision has been made in the public interest, the protection of the public is a matter entitled to significant weight: New South Wales Bar Association v Stevens (supra) at [90]-[104]. The paramount concern under the scheme provided by the Act is the protection of children from abuse. This is a concern of significant public interest and it is in the public interest to maintain protective mechanisms for children in the community.

17. In New South Wales Bar Association v Stevens (supra) His Honour Chief Justice Spigelman (as he then was), with whom Meagher and Sheller JJA agreed, said this of the public interest at [103]-[104]:

“[103] The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 where his Honour said:

“In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only.”

[104] It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight.”

18. In this particular application the final determination is made by this decision, subject to the exercise of any application to the Supreme Court. Therefore, any stay, if granted, would have been for a relatively short period of time. The refusal of the application for a stay will maintain a situation which has been in place prior to the grant of the stay on 26 October 2015. This would inevitably adversely affect the applicant’s capacity to remain in his current employment, if he is required to engage in child related employment. By the same token, the public interest would be significantly protected if the ultimate decision is not to grant a working with children check clearance to the applicant.

19. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.

20. There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children’s Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.

21. In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998. It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.

22. It is thus considered doubtful that the Tribunal, in the circumstances of the application before it brought by BXJ, could lawfully attach conditions which would be permitted by the legislation effectively to the grant of an interim clearance as proposed, if the Tribunal decided that it would be appropriate or desirable to grant a stay on conditions. The reasons and rationale for the determination that no conditions may be imposed on the grant of a working with children check clearance are set out later in these reasons.

23. As stated earlier, the decision as to the appropriateness or desirability of granting a stay in this matter may not be made until the considerations under section 30 of the Act are properly taken into account, as they must and will be later in these reasons for decision.

24. An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any children, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

25. The Tribunal has been assisted by the written and oral submissions of the parties.

The evidence relied upon in the hearing

26. The applicant relied upon the following documentary material:

1. Affidavit of the applicant dated 2 October 2015 filed 9 October 2015 - Exhibit A1;

2. Affidavit of the applicant’s daughter dated 10 September 2015-Exhibit A2;

3. Affidavit of the applicant’s son dated 18 September 2015-Exhibit A3;

4. Report of Dr Katie Seidler dated 9 September 2015-Exhibit A4;

5. Report of Dr Katie Seidler dated 30 November 2015-Exhibit A5;

6. Salvation Army document dated 18 November 2015-Exhibit A6;

7. letter from Break The Cycle life skills support group dated 30 November 2015-Exhibit A7;

8. Salvation Army document dated 27 November 2015-Exhibit A8;

9. Outline of Submissions on Behalf of the applicant dated 4 December 2015-Exhibit A9.

27. The respondent relied upon the following documentary material:

1. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 23 November 2015- Exhibit R1;

2. Volume of documents filed by the respondent on 1 December 2015 - Exhibit R2;

3. Outline of Submissions for the respondent dated 3 December 2015 - Exhibit R3.

28. The applicant and his daughter gave oral evidence and were cross-examined on 4 December 2015. Dr Seidler also was cross-examined.

29. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons.

30. The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]:

“…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.”

31. The paragraph from the decision in BJB v NSW Office of the Children's Guardian (No 2) is a considered statement of the relevant principles to be applied in a review under section 27 of the Act, based upon High Court authority, and those principles shall be applied in this decision. Further binding support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]:

“Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct.”

32. The effect of the Act and the ‘practical onus’ which falls on a party notwithstanding the principles referred to in the previous two paragraphs of these reasons is as the Act states in section 27(4):

“An applicant must fully disclose to the Tribunal any matters relevant to the application.”

33. The practical or forensic onus but not the legal onus is thus carried by the applicant. The applicant submitted that he bears that practical or forensic onus. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that:

“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.” (Citations omitted)

34. The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

35. The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are referred to now and necessarily involve some repetition of previous statements in earlier decisions, so that the legislative basis of this particular decision is identified for the parties.

36. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows:

"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."

37. There is no definition of “child abuse” contained in the Act. The Children’s Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.

Maximum penalty: 200 penalty units.”

38. The objects of the Act are set out in section 3 which provides:

"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."

39. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."

40. Pursuant to section 14 of the Act there is a requirement to conduct an assessment of the applicant. The section provides as follows:

“14 Assessment requirements

A person is subject to an

"assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.”

41. The applicant was charged in 2013 with “stalk/intimidate intend fear physical harm” pursuant to section 13 (1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), in relation to the applicant then 15-year-old daughter and the applicant then 21-year-old stepson. Those charges were subsequently withdrawn as neither the daughter nor the stepson was willing to give evidence against the applicant.

42. At the time of those charges in 2013 the applicant was also charged with an offence of “armed w/i commit indictable offence” in respect of his daughter and stepson pursuant to section 114 (1) (a) of the Crimes Act 1900 (NSW) and “custody of knife in a public place” at the address of his employer pursuant to section 11C (1) of the Summary Offences Act 1988 (NSW). The first of those charges was withdrawn because neither the stepson nor the daughter were willing to give evidence against the applicant. The applicant was convicted of the custody of a knife charge for which he received a 9 month good behaviour bond. The knife was a 60 centimetre long blade weapon resembling a machete.

43. The matters referred to under Schedule 1 of the Act which trigger a risk assessment by the Children's Guardian are the matters referred to in clause 1(2)(f) and 1(6) which read as follows:

“(2) Proceedings have been commenced against a person for any of the following offences (whatever the outcome of those proceedings):

...

(f) an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 committed against a child,

...

(6) A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children.”

44. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.

45. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

46. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.

47. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

48. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

49. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, 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].

50. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523.

51. The Tribunal is guided by the decision in the Supreme Court BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order:

“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.”

52. The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children’s Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children’s Guardian at [33]. It is useful to set out the reasoning behind the Tribunal’s determination in this decision.

53. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.

54. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.

55. The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.

56. In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.

57. The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following:

"All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."

58. In the following paragraph the Minister stated:

"While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."

59. As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and with approval in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.

60. In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states:

"Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."

61. If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.

62. The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 provide that persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. The applicant is not treated as a disqualified person, but is subject to risk assessment under the current Act due to the provisions of schedule 1. It is the Tribunal’s assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight are not determinative of the current assessment of risk on the whole of the information before the Tribunal.

The Issue

63. As previously referred to, the primary issue before the Tribunal in this application 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 to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

64. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

65. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].

66. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481. It is not necessary in this matter to decide whether these aspects are part of the Tribunal’s functions and powers.

Considerations and the Evidence

67. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than is section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language.

68. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections.

69. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.

67. Section 15 of the Act provides as follows:

15 Assessment of applicants and holders

(1) The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2) The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3) Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder.

(4) In making an assessment, the Children’s Guardian may consider the following:

(a) the seriousness of any matters that caused the assessment in relation to the person,

(b) the period of time since those matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time it 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 matters occurred,

(i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,

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

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

(5) The Children’s Guardian may, but is not required to, notify the holder of a clearance in writing if the Children’s Guardian decides to conduct a risk assessment of the holder.

71. Section 30 of the Act provides as follows:

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.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

72. The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings reciting the required considerations under the Act.

73. Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence in relation to the offences with which the applicant was charged and has now been acquitted: section 63 of the Administrative Decisions Review Act.

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

74. The applicant was charged in 2013 with serious offences involving the possession and also the use of a long bladed weapon to intimidate his daughter and stepson in their own home. Those charges were withdrawn because the daughter and stepson did not wish to give evidence against the applicant. An Apprehended Violence Order (AVO) in respect of the daughter and stepson was issued by the Court against the applicant for a period of 2 years expiring on 8 July 2015.

75. The applicant was found guilty of possession of the long bladed weapon in a public place for which he received a 9 month good behaviour bond pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). This is also a serious offence.

76. The applicant was also charged in 2006 of assault occasioning actual bodily harm and received a 12 month bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) as his sentence on 23 August 2006. An AVO was also issued against the applicant. The police facts state that the applicant slapped his wife, the mother of his daughter and stepson, twice to the face causing her right eye to swell and severe soreness to the left side of her jaw. This incident occurred in front of the stepson who was then 15 years old.

77. The applicant and his wife in 2006 had been married for 14 years and had 5 children together. An argument developed on 18 April 2006 over a relatively minor domestic incident concerning food. The victim permitted one of the children to eat some tuna out of a tin instead of eating leftover food in the fridge contrary to the direction of the applicant. The applicant slapped his wife twice to the face causing injury. The wife attempted to contact the police by telephone, however, the telephone was ripped from the wall. The wife and children left the premises by running out the front and then driving to a relative’s home. The applicant was then charged with the assault occasioning actual bodily harm.

78. The charges in 2013 arose from an incident at the home of the applicant’s former wife where his children were living. The applicant had stored some of his belongings at the home. He attended the home to retrieve those belongings. It was alleged that the applicant said to his stepson: “Fuck you, you are sleeping with my wife. I am going to chop you with the [machete weapon].” This was said in front of the applicant’s daughter. The applicant allegedly said: “Your mum and your brother are fucked and sleeping together.” The daughter is alleged to have responded: “No that’s wrong. That is my brother, he is her son. Why would they do that for?” The daughter went back into the house and locked the door. The applicant banged on the front door indicating that he wanted to retrieve his CD rack. The applicant’s daughter saw him through the glass of front door holding the machete. The applicant’s daughter retrieved the rack for the applicant and brought it back from the garage to the front door to give to the father. The applicant is alleged to have said to her: “You’se are fucked.” The applicant walked back to his car. The mother and her other son returned to their home and the applicant became argumentative. As the applicant drove away from home he allegedly yelled out from the window to his former wife: “Open your legs to your son.” The applicant’s daughter signed the police notebook which indicated that she was scared that the applicant would hurt her and she was hoping that he would not come back.

79. The applicant’s daughter gave oral evidence in addition to her affidavit. The evidence she gave was supportive of her father. On the basis of her evidence the contemporaneous notes contained within the police notebook which she signed at the time of the incident in 2013 did not accurately record what the applicant’s daughter actually heard or felt according to her current recollection. The applicant’s stepson was not required for cross-examination concerning his statement provided to the Tribunal. The stepson gives evidence that the applicant’s former wife is suffering from cancer and the applicant has assisted financially in a supportive manner. In essence, the stepson and daughter of the applicant minimise the seriousness of the incident which occurred in 2013. Given the family’s current circumstances it is entirely understandable that they are supportive of the applicant.

80. As later referred to in these reasons, the applicant has acknowledged domestic violence in the context of his relationship with his former wife. The applicant is also acknowledged anger directed towards the children present in the household.

81. In his affidavit, in relation to the incident in 2013, the applicant acknowledged that he was angry with his stepson and made an inappropriate comment to the stepson which he records as: “that’s good I can leave so you can sleep with your mother.” Exhibit A1 [15]. The applicant has not denied that he made this accusation in front of his daughter. The applicant acknowledges then that he had no good reason to make that comment and says that he is sorry and remorseful and has apologised to his stepson. The applicant then says that he used the machete weapon to cut some branches of a tree which were touching his car, and knocked on the door whilst holding the machete. The applicant then asked for his CD rack from his daughter. An incident occurred when the applicant’s former wife returned home.

82. The applicant acknowledged to the Tribunal that he threatened to “hit” his stepson with the machete and accused his stepson of sleeping with the applicant’s former wife. The distinction made is that the applicant denies using the word “chop” when threatening his stepson. The criminal charges relating to the 2013 incidents were dismissed by the Local Court. However, on the balance of probabilities, having regard to the seriousness of the allegations and the limited admissions by the applicant, the Tribunal is comfortably satisfied that a serious incident occurred as alleged in the police facts. The likelihood is that the contemporaneous notes taken by the police about the incident from the applicant’s daughter and others who were present are the more accurate version of the events.

83. The police attended the applicant’s workplace on 16 May 2013 and walked with the applicant to his motor vehicle. In the motor vehicle the police located the long bladed machete weapon on the floor under the passenger seat. The machete had a wooden handle approximately 150 millimetre long attached to the blade of an estimated approximately 500-600 millimetres in length.

The period of time since those matters occurred and the conduct of the person since they occurred

84. The time which has elapsed since the matters which triggered the risk assessment is 2 years. A period of 7 years has passed since the assault occasioning actual bodily harm incident.

85. The conduct of the applicant since 2013 has not brought him to the attention of the police. However, despite telling Dr Seidler who performed an assessment of risk that he had never been the subject of any complaints with respect to workplace aggression or violence, documents from his employer indicate that there was a complaint in relation to workplace aggression. The applicant picked up a bus from the depot for his shift on 30 December 2014 and wanted to know why he was not given a bus with a low floor. The applicant was reported to be “argumentative and agitated”. The applicant drove the bus a short distance from the depot and then stated over the telephone that he needed to be relieved. An investigation occurred and the applicant reported that he came off the road because he did not want to have an accident as he was “cranky”. The applicant was upset that he had not been given a low floor bus. The applicant was informed that he was obliged to drive the bus that he was allocated and that this would be viewed as a refusal of duty and that it is serious misconduct. The applicant stated he had a right to come off the road when he wants and that he would see his specialist and doctor: Exhibit R2 pages10-12.

The age of the person at the time the offences or matters occurred

86. The applicant was aged 48 years old at the time of the incident involving the machete in 2013. The applicant was aged 41 at the time of the assault occasioning actual bodily harm matter perpetrated upon his wife in 2006.

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

87. The applicant’s daughter was 15 years old and the stepson was 21 years old at the time of the 2013 incidents.

88. The applicant’s daughter and his stepson were vulnerable due to the applicant’s greater physical presence, but more importantly were psychologically and emotionally vulnerable to the impact of this conduct. Significantly, the family has been financially dependent upon the applicant despite the separation between the applicant and his former wife.

89. The significant history of family violence between the applicant and his former wife has a cumulative effect upon children exposed to that family violence.

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

90. The difference in age between the applicant and his daughter at the time of the 2013 incidents and charges was 32 years. The applicant was 26 years older than his stepson at that same time.

Whether the person knew, or could reasonably have known, that the victim was a child

91. The victim of the assault in 2006 was the applicant’s former wife. The victims of the charges which were dismissed were the applicant’s daughter and his stepson. The applicant knew that his daughter was a child. Although the stepson was 21 at the time of the 2013 incidents he was only aged 15 at the time of the assault of the applicant’s former wife in 2006. The applicant has been in loco parentis to his stepson who he has treated as his child.

The person’s present age

92. The applicant is currently 50 years old.

93. The applicant’s greater maturity may mean that he is not as prone to violence as he was in his younger years.

The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred

94. The applicant has a history of violence involving close family members including violent anger directed to, or in the presence of, his children.

95. The applicant and his former wife were reported to have had a significant family violence history prior to the incident in 2006. This is confirmed by the applicant in his evidence. There has been no report of domestic violence since 2013.

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

96. The applicant relies upon the evidence of himself, his daughter, the stepson and the psychologist to support the contention that he is unlikely to repeat his angry and violent conduct. The psychologist, Dr Seidler, provided 2 reports.

97. Dr Seidler, a psychologist, provides opinion evidence that the applicant has a very low risk of general reoffending and a low risk of generalised violence, but a moderate risk for violence specifically relating to his former wife: Exhibit A4 at [51], [57]. Dr Seidler reiterated in Exhibit A4 at [48], comments which reflect the caution which should be attached to risk assessments and support similar cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 at [67] and BKV v Children’s Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children’s Guardian [2016] NSWCATAD 3 at [91]-[92].

98. In essence, what Dr Seidler and others have stated is that prediction of a relatively uncommon behaviour such as serious violence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and “gut feeling” play a determinative role in making a judgment.

99. The domestic violence between the applicant and his wife has a long history. On 16 January 2002 the helpline received a call reporting that the applicant’s wife requested assistance to go to New Zealand. The previous day the applicant had allegedly stopped the car on the side of the road and “gave [his wife] a hiding”. The children allegedly saw the applicant physically assault his wife. The reporter was told by the wife of the applicant that the applicant had not “bashed the oldest child as much as he used to”. The applicant’s wife wished to leave the home but was reluctant to do so, because she said the applicant would “smash the house”.

100. When the incident occurred in 2006 the applicant’s wife was interviewed by the Department of Family and Community Services casework. The applicant’s wife allegedly stated that she had been in a domestic violent relationship for 14 years, suffered a miscarriage and was hospitalised on 2 occasions due to alleged domestic violence perpetrated by the applicant. The applicant’s former wife told the caseworker that the Family Court judge stated that he would not grant unsupervised access with the children due to the applicant’s violence, but the former wife retracted her allegations in that Court and stopped the Court proceedings. The applicant’s wife after receiving the benefit of the AVO in 2006 refused to access the referrals and services offered to her and the children by the caseworker.

101. The domestic violence incidents which have been referred to and the conviction in 2006 indicate that there has been serious domestic violence to which the children of the applicant have been exposed during their formative years. The impact on children of such violent behaviour is now well-known and the Act has embodied the paramount principle to protect children from such child abuse.

102. The applicant has not acknowledged or shown any insight into the effect his anger and violence has had on his children and the effect it may have on other young people who are victims of or witness to that anger and violence. The respondent submits that this is significant because the applicant comes into unsupervised contact with children in the course of his employment.

96. The applicant has only recently engaged in a community outreach program through Break the Cycle to develop some life skills. The applicant attended 5 out of the 14 weekly sessions for the life skills course according to the letter provided from that organisation: Exhibit A7. This is commendable and the course continues in February 2016. The attendance of the applicant is primarily directed to helping address his anger issues. The applicant has also been referred to a parenting course as another way to help the applicant obtain some skills to deal with his children.

97. The Salvation Army has provided 3 sessions of the Positive Lifestyle Program attended and participated in by the applicant: Exhibits A6 and A8. At the conclusion of 10 sessions a certificate will be issued to confirm his effective engagement and completion of the program. That is yet to occur.

98. It is apparent that the applicant took the advice of Dr Seidler to embark upon personal development through these activities: Exhibit A4 [59]. This requirement was proffered so that the applicant could gain skills and techniques to control and manage his anger, as well as improve on his communication and frustration tolerance skills. These learning experiences, if effective, clearly are necessary to mitigate the risk that the applicant poses to the safety of children and the harm which would be caused to them by experiencing or witnessing family violence, or violence in any context.

99. The benefit of those programs is yet to be seen. Dr Seidler did not formally assess the applicant with any psychometric test measures because his English capacity was assessed to be insufficient and any testing would be unlikely to lead to a valid outcome: Exhibit A4 [45]. Having observed the applicant give evidence in the Tribunal it is not known whether the applicant has the capacity to learn new patterns of behaviour. The absence of any psychometric testing does not allay any concerns which may properly be held about the applicant’s capacity to change.

100. The respondent submits that the undertaking of these courses should be seen as directed to supporting the application before the Tribunal rather than as reflective of any genuine concern for or insight into the applicant’s personal development. Whilst that submission is open to be made, there is likely to be benefit to the applicant from completion of the personal development courses currently being undertaken by the applicant. As previously stated, successful completion of those courses will mitigate risk.

101. Dr Seidler acknowledged that the applicant had a turbulent relationship history with his former wife. The applicant told Dr Seidler that he and his wife would argue frequently and that he was violent towards her on a number of occasions: Exhibit A4 [35]. The applicant was asked about experience of anger and any history of aggression by Dr Seidler to which the applicant responded, Exhibit A4 at [43] as follows:

“... [The applicant] noted that he can get angry at times with his children, as he is trying to guide them and stop them getting into trouble and becoming ‘street kids’. Further to this, [the applicant] endorsed a long history of notable anger, in addition to aggression, within the context of his marriage. He described quite specific anger with his wife that he attributed to her being short tempered, demanding and generally unsupportive during their marriage. [The applicant] also noted that he was working very long hours and was usually tired and irritable, which did not help his temper during the years of the marriage.”

109. In her report, Exhibit A4 at [56], Dr Seidler states that the applicant described his former wife as follows:

“[The applicant] described aspects of her character in quite negative terms, as well as acknowledging that he had difficulties coping with this woman, which often resulted in his becoming angry and dysregulated to the point that he was aggressive and at times, violent.”

110. Dr Seidler, in Exhibit A4 [58] considered the issue of risk management in part at least, as follows:

“[The applicant] found it difficult to conceptualise that he might be at risk for future aggressive conduct, either personally or professionally. However, with prompting and specific questioning, [the applicant] stated that if he was to become angry at work, he would be aware that is (sic) not to ‘dump’ the anger onto others. Further to this, he claimed that he would try and distract from his problems, as well as calling the base or speaking to a supervisor in the workplace if he needed to. [The applicant] added that he is able to take time out as needed in the workplace and it seems that the runs he would do are generally short (ranging between half an hour and one hour) and although they may often involve taking children to school excursions, chaperones apparently have to be comfortable and there is little opportunity to develop ongoing relationships with the bus patrons.”

111. Dr Seidler originally conducted her assessment without the benefit of the applicant’s official criminal history. Accordingly, Dr Seidler stated that the assessment she conducted “may underestimate his risk on the basis of the history”: Exhibit A4 [50]. Later, Dr Seidler was provided with additional documents including the criminal history of the applicant. In her second report Dr Seidler then stated in the last paragraph of that short report that: “nothing in these documents alters the formulation, risk assessment, conclusions and recommendations of my original report in this matter.” Exhibit A5 [3].

Any information given by the applicant in, or in relation to, the application

112. The applicant has provided information including affidavits from his children and references from his employer. The applicant has relied upon expert assessment by Dr Seidler. Unfortunately Dr Seidler was not initially given all the material which bears upon a risk assessment. That has been remedied: Exhibit A5. Dr Seidler also gave oral evidence.

113. The applicant is also provided supportive material from the Salvation Army and Break the Cycle organisations with whom the applicant is currently engaged.

114. The Children’s Guardian has not submitted that the applicant has failed to provide relevant information.

Any other matters that the Children’s Guardian considers necessary

115. The Children’s Guardian made submissions addressing those matters which the Children’s Guardian considers necessary.

116. The Children’s Guardian submits that the applicant should not be granted a working with children check clearance.

117. The respondent submits that a real and appreciable risk to the safety of children is present.

Consideration

118. The behaviour and conduct which triggered this assessment is a serious matter. The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms as is reflected in domestic violence legislation.

119. The reported behaviour is part of a pattern of ongoing events, but is not recent. If repeated, the concerning behaviour would do significant harm. There has not been provided evidence of significant and sustained positive changes since the behaviour occurred. Recurrence of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour is not evident on the evidence provided to the Tribunal.

120. The behaviour, if repeated, would do significant harm to the victims. The consequences are likely to be serious. Any children who witnessed these events are likely to be adversely impacted. The paramount principle under the Act includes protection of children from abuse and suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged.

121. The applicant has matured with age and is committed to his family with whom he no longer lives but with whom he has regular interactions, which are factors in his favour.

122. The applicant has not acknowledged or shown any insight into the effect his anger and violence has had on his children and the effect it may have on other young people who are victims of, or witness to that anger and violence. The applicant showed no apparent remorse. Remorse on its own, in any event, is insufficient to ameliorate risk.

123. The applicant is seeking to gain skills and techniques to control and manage his anger, as well as improve on his communication and frustration tolerance skills. These learning experiences, if effective, clearly are necessary to mitigate the risk that the applicant poses to the safety of children and the harm which would be caused to them by experiencing or witnessing family violence, or violence in any context.

124. The Tribunal it is unable to properly assess at this time whether the applicant has the capacity to learn new patterns of behaviour. The absence of any psychometric testing does not allay any concerns which may properly be held about the applicant’s capacity to change.

125. On 30 December 2014 the applicant wanted to know why he was not given a bus with a low floor and was reported to be “argumentative and agitated”. An investigation occurred and the applicant reported that he came off the road because he did not want to have an accident as he was “cranky”. The applicant was informed that he was obliged to drive the bus that he was allocated and that this would be viewed as a refusal of duty and that it is serious misconduct. This incident resulted in the applicant taking a period of leave from his employment in order to sufficiently calm down before returning to work.

126. The applicant gave an example to Dr Seidler of a minor complaint made about his role as a bus driver. The applicant said that he refused to allow a child to board the bus and to ask his parents for some money to pay for the ticket. The applicant told Dr Seidler that he was simply following procedures in his actions and therefore nothing ever came of those complaints: Exhibit A4 [27]. However, in oral evidence the applicant related a slightly different story. The applicant told the Tribunal that he removed the child from the bus after he asked him 3 times to get off the bus. The applicant said that his boss told him that he was not supposed to touch the child and to wait for police, but the applicant said that if he did that then everyone would be late for their work.

127. Dr Seidler gave evidence that the applicant has uncomplicated reasoning skills which may make him more impulsive and might increase the risk of violence.

128. 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. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

Conclusion

129. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.

130. Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

131. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes on the balance of probabilities that there is a real and appreciable risk of harm to children posed by the applicant.

132. The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children. 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.

133. If the Tribunal is in error in concluding that there is a real and appreciable risk of harm to children, it is concluded on the balance of probabilities that the circumstances surrounding the course of conduct by the applicant means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

134. The interests of the applicant and his family are adversely affected by the determination of the application for stay if there is no stay of the decision of the Children’s Guardian. The submission made by or on behalf of the Children’s Guardian is against the application by the applicant. The public interest, on balance, is given appropriate effect and protected by the refusal of a stay and the public interest is succinctly reflected in the paramount principle under the Act which requires the protection of children, particularly from child abuse.

135. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance. In that event it is concluded that it was also neither convenient nor appropriate to grant a further stay.

Orders

136. The order of the Tribunal is that:

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 4 June 2015 is otherwise refused and dismissed.

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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 January 2016