CFL v Children's Guardian

[2016] NSWCATAD 114

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CFL v Children's Guardian [2016] NSWCATAD 114
Hearing dates:	29 February 2016
Date of orders:	09 June 2016
Decision date:	09 June 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member E Hayes, General Member
Decision:	(1) The decision of the Children’s Guardian dated 6 October 2015 to refuse the applicant’s application for a Working with Children Check clearance is affirmed.  (2) The application for review of the decision of the Children's Guardian filed 23 October 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 – assessment trigger by clause 1(1)(b) of Schedule 1 to the Child Protection (Working with Children) Act 2012- charges of indecent assault and 4 counts of aggravated sexual assault of stepdaughter aged 11-13 withdrawn and dismissed after complainant recanted allegations - whether the applicant poses a risk to the safety of children - onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety welfare and well-being of children of children- paramount concern is protecting children from child abuse- the correct and preferable decision is to uphold the decision of the Children’s Guardian and refuse a working with children check clearance.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) 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) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (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 BGX v Children's Guardian [2014] NSWCATAD 173 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 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 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:	CFL (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Douglas-Baker (Respondent)   Solicitors: CFL (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1510664
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 and 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.

REASONS FOR DECISION

Introduction

1. The applicant, who in order to protect the identity of the alleged victim and the applicant himself is known by the pseudonym “CFL” in these proceedings, on 23 October 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 6 October 2015, to refuse 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. The parties correctly conducted the hearing and made submissions on the basis that the amendments introduced into the Act in 2015 do not apply to this particular matter.

3. The applicant applied for a working with children check clearance on 29 January 2014. On 1 September 2014 a notification letter was sent by the Children’s Guardian to the applicant informing him that his application was refused.

4. The applicant was charged on 1 August 2014 with four counts of aggravated sexual assault and one count of indecent assault on a person under the age of 16 years in relation to his adolescent stepdaughter who was the complainant. The offences were alleged to have occurred between 1 January 2011 and 31 December 2013. The applicant denied the offences.

5. The applicant was refused the working with children check clearance on the basis of the charges laid against him. On 6 November 2014 the complainant gave a signed statement to the police in which she said that the allegations were “untrue and a lie made up by [the complainant]”. On 28 November 2014 the charges in respect of each of the alleged offences were dismissed/withdrawn and no conviction was entered.

6. On 27 April 2015 and pursuant to section 17 (1) of the Act an interim bar was placed on the applicant engaging in any child -related work, on the basis that the charges and the allegations made resulting in those charges, raised significant concerns as to the risk the applicant poses to the safety of children.

7. The applicant wishes to engage in coaching of children’s sport and requires a working with children check clearance to do so. The applicant is engaged in other paid employment which does not require a working with children check clearance.

8. On 30 April 2015 the Children’s Guardian advised the applicant that a risk assessment would be conducted and invited him to provide additional information in support of his application.

9. On 3 September 2015 the Children’s Guardian informed the applicant by letter that the Children’s Guardian proposed to refuse the applicant and invited him to provide further information. The applicant provided further information. However, on 6 October 2015 the applicant was refused the working with children check clearance because it was assessed that he posed a risk to the safety of children.

10. The applicant is without a Working with Children Clearance now, preventing him from working in “child-related work”: section 6 and section 8 of the Act; clause 7 of the Child Protection (Working with Children) Regulation 2013.

11. The applicant was unrepresented in the hearing. The Tribunal accordingly treated the applicant as an unrepresented litigant and explained to him during the course of the hearing the process, and the legal requirements, particularly those imposed by the legislation. This is an application pursuant to section 27 of the Act. The application for review was heard by the Tribunal on 29 February 2016.

12. 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].

13. 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.

14. 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. This is an application under section 27 of the Act.

15. 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.

16. 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.

17. It is doubtful that the Tribunal may lawfully attach conditions which would be permitted by the legislation effectively for the grant of a conditional clearance for this and the additional reasons set out in this decision. Although the applicant only wishes to coach sporting teams made up of children, a conditional grant of a clearance for that purpose is not permitted by the legislation.

18. 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 victims and 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.

19. The Tribunal has been assisted by oral submissions. The applicant made succinct and direct oral submissions to the Tribunal.

The evidence relied upon in the hearing

20. The applicant relied upon the following documentary material:

1. Application filed 23 October 2015 including a letter dated 6 October 2015 containing reasons for refusal of the work children check clearance - Exhibit A1;

2. Bundle of documents filed 17 December 2015-Exhibit A2;

3. Psychological assessment prepared by, Hugo Rodriguez psychologist dated 25 January 2016-Exhibit A3;

21. 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, comprising 149 pages - Exhibit R1;

2. Volume of documents filed 14 January 2016 comprising Court Attendance Notices, Police Facts Sheets, statements, transcribed interviews and diagrams - Exhibit R2;

3. Further documents filed by the respondent on 4 February 2016 comprising 94 Pages-Exhibit R3;

4. Submissions for the respondent dated 17 February 2016 and filed 19 February 2016 - Exhibit R4.

22. The applicant gave oral evidence and was cross-examined on 29 February 2016. The psychologist was cross-examined on the same date. The mother of the complainant also gave evidence and was cross-examined on that date.

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

24. 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.”

25. 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.”

26. 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.”

27. The practical or forensic onus but not the legal onus is thus carried by the applicant. 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)

28. 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

29. 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.

30. 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."

31. 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.”

32. 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."

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

33. 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.”

35. The applicant was properly the subject of a risk assessment due to the provisions of clause (1)(b) of Schedule 1 of the Act which reads as follows:

(1) Proceedings have been commenced against a person:

(a) …..

(b) for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person.

36. The offences with which the applicant was charged are offences specified in clause 1 of Schedule 2 of the Act.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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].

43. 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.

44. 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.”

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

50. 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."

51. 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."

52. 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.

53. 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."

54. 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.

55. 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

56. 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].

57. 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.

58. 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].

59. 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.

Considerations and the Evidence

60. 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.

61. 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.

62. 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.

63. 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.

64. 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.

65. 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.

66. 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 or factual circumstances in relation to the conduct of the applicant: 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

67. The applicant is not a disqualified person. The charges pursuant to section 61J(1) and 61M(2) of the Crimes Act 1900 (NSW) were withdrawn and dismissed.

68. The matters with which the applicant was originally charged are very serious matters.

69. The applicant was charged with sexually assaulting his stepdaughter over a period of two years. The applicant assumed the role of stepfather to the alleged victim and her siblings. That is why the charges were of ‘aggravated’ sexual assault. The allegation is that the applicant abused his position in the family to perpetrate offences which betrayed the trust of his alleged victim.

70. The complainant provided a detailed account of four separate sexual assaults and one indecent assault. The documents form the bulk of Exhibit R2. The complainant participated in an electronically recorded interview with police on 1 August 2014.

67. The indecent assault allegation was that between January 2011 and December 2011 the complainant was asleep alone in her bedroom when she woke up to find the applicant in her bed, then the applicant rubbed the complainant’s vagina “up-and-down over the top of her pants for a short time”. When the complainant rolled over onto her stomach she alleged the applicant rubbed his body against her back in a “grinding motion”. The complainant alleged that when she said “Dad” the applicant did not respond and left the room: Exhibit R2, Police Facts Sheet, page 2.

68. The first aggravated sexual assault allegation was that in January 2013, in the middle of the night, the applicant entered the complainant’s bedroom and hopped into bed with her. The complainant alleged that the applicant slid his hand into her pants and began to rub her vagina, eventually inserting his finger into her vagina causing the complainant to feel pain after it continued for about two minutes. The applicant is alleged to have rolled the complainant onto her back unbuttoned her pants, before pulling her pants and underpants down. The complainant alleged that the applicant then laid on top of her and began kissing her jawline. This made her feel uncomfortable so she told him to stop. The applicant is alleged to have then left the room to prepare for work at about 4 am. The applicant is then alleged to have returned to the room to continue a conversation with the complainant before he left for work: Exhibit R2 Police Facts Sheet, page 3.

69. The second alleged sexual assault occurred between January 2013 and December 2013 when the complainant and her two brothers were asleep on a mattress in the living room of the family home. The complainant alleged that whilst her brothers were asleep the applicant entered the lounge room and lay down next to her while she was facing away from him, then he put his hand down the back of her pants and inserted his fingers into her vagina and began moving his fingers up and down. The applicant then left and went back to his bedroom: ibid.

70. The third alleged sexual assault occurred between January 2013 and December 2013 while the complainant was asleep in her mother’s room. The complainant stated that her mother and brothers were asleep in the bed in her mother’s room whilst the applicant and she were sleeping on yoga mats at the base of the bed on the floor. The complainant alleged that while she was facing away from him the applicant put his hand inside her pants and underpants, inserted his finger into her vagina and began moving it up and down. The complainant alleged that the applicant stopped and the complainant thought it was over, but then the applicant placed his hand back down her pants and inserted his fingers into her vagina rubbing up and down again: ibid.

71. The fourth alleged sexual assault occurred between January 2013 and December 2013 when the complainant was asleep on the floor of her grandparents’ bedroom at the family home. The grandparents were not home and she had chosen the room to avoid sleeping next to the applicant in her mother’s bedroom. The applicant is alleged to have entered the bedroom and lay down next to complainant. The applicant is alleged to put his hand down the complainant’s pants and underpants and inserted first one finger into the victim’s vagina, then two fingers and began moving his fingers up and down. The complainant alleged that the applicant then used his other hand to rub her breasts underneath her clothing and bra. The applicant is then alleged to have stopped and pulled down the complainant’s pants and underpants before placing his head under the blankets. The complainant said she then felt something inside her vagina where the applicant’s head was under the blankets. The applicant stopped what he was doing eventually and then left the room: ibid. Page 4.

72. The complainant said that she first told her mother when she was home from school in the middle of the day earlier in the year around the end of Term 1. The complainant said she told her mother that she was frightened of the applicant. The complainant said that she told her mother that the applicant touched her vagina in three rooms. The complainant said that her mother confronted the applicant, they had an argument and her stepdad, the applicant, started swearing and drove off in his car. The complainant told the Department of Family Community Services caseworkers that the applicant later returned to the home and said to the complainant that he cannot remember doing what she alleged. The complainant told the Department of Family Community Services caseworkers that she was frightened of the applicant. The complainant told the same caseworkers that she informed at least three of her friends, possibly four of them, and two of her teachers of the allegations she made against the applicant. The complainant was concerned that the applicant would be charged with criminal offences saying that this would impact on the family and that the applicant needed to be around to handle her siblings. It was observed by the caseworkers from the Department of Family and Community Services that the complainant appeared to take on the responsibility of family needs above her own needs. When she was advised that her mother would be spoken to by the caseworkers the complainant said that her mother would blame her for what this may do to the family: Exhibit R1 page 81.

73. The complainant’s mother was spoken to by a JIRT caseworker and the mother said that she did not know why the caseworker was speaking with her daughter. The caseworker stopped the mother from talking and told her that she was giving her the opportunity to be honest and told her that the caseworker was already aware of some information and that the mother needed to tell her truth. The mother then provided information to the caseworker about her knowledge of the assaults on her daughter. The complainant’s mother is alleged to have not believed the allegations made by her daughter. The mother responded about her needs and how this was going to impact on her and really failed to comprehend and understand the impact the events had on her daughter. This included allowing the applicant to return to the home after the mother was earlier aware of the allegations. The caseworker spoke about counselling for the complainant and how this could support her and the family. The mother stated to the caseworker that she had been in an off again on again relationship with the applicant for 10 years. The mother was informed by the caseworker that she had to tell the siblings that the applicant could not be around them anymore. The mother asked if she could do it later and the caseworker said “no”.

74. The caseworker assisted the mother to tell the siblings about the applicant not being around anymore. The complainant did not come home at the time she was supposed to. The caseworker went outside the home to make a telephone call and found the complainant leaning up against the front wall crying and sobbing. The caseworker supported the complainant, gave her a hug, and told her that it was going to be okay and that she was there to support her with her concerns including the mother blaming the complainant for the disruption to the family. The caseworkers assisted the mother and daughter and told the mother to put aside any differences in order to support her daughter’s needs including attending counselling. The mother agreed to tell the grandparents about the allegations and was asked what her parents would say when she told them. The mother said “[her] mother would probably hit her”: Exhibit R1 pages 82-83.

75. It is also reported by the caseworkers that the police were charging the mother with an offence because she knew about the information, concealed information and lied about it, which has an effect on the emotional and psychological well-being of her daughter: Exhibit R1 page 88. It appears that the mother was not charged with an offence. The caseworkers assessed that the mother was being obstructive in not assisting her daughter to access relevant services that may support her emotional needs: ibid., at pages 91-95. The daughter changed schools, and even though she was referred to and accepted for counselling six weeks previously, the mother had not ensured her daughter attended. The mother spoke with police to the effect that she did not think the matter should proceed to court because of the impact of the allegations on her daughter. The caseworkers could not access the daughter and their attempts to see her later were not successful. These events recounted in the preceding paragraphs occurred prior to the recanting of the allegations by the complainant.

76. On 6 November 2014 the complainant gave a signed statement to the police that she made up the allegations to make her mother angry because she was jealous of the applicant and the attention the mother gave to him. The complainant said that she wanted special treatment as a result of the sexual abuse allegations. The complainant said that she had written a letter of apology to the applicant three weeks earlier. The complainant, it needs to be remembered, was initially concerned that the applicant would be charged with criminal offences saying that this would impact on the family and that the applicant needed to be around to handle her siblings.

77. The Director of Public Prosecutions did not proceed with the prosecution because there was little prospect of a conviction when the complainant advised that she did not wish to proceed and because she said that the allegations made by her were false. On 28 November 2014 the charges in respect of each of the alleged offences were dismissed-withdrawn and no conviction was entered.

78. The allegations made by the complainant were quite detailed and described an escalation in the seriousness of the alleged offending over time. The recanting of the allegations was convenient to the complainant’s mother, the maternal family, and the applicant. The reasons provided by the complainant for withdrawing the allegations and explaining her actions refers to her anger with her mother and jealousy of her stepfather, the applicant.

79. The applicant gave evidence that there were a number of letters written by the complainant apologising to him. Only one of the letters has been retained and provided as evidence in support of the application. That letter is dated 30 October 2014. The applicant gave evidence to the Tribunal that he burned the other letters in a bonfire. The complainant referred to a letter written three weeks prior to her statement to the police recanting her allegations. The complainant said that she did not keep a copy of the letter and did not know whether the applicant ever received the letter. Significantly, the complainant refers to only one letter. It was not written three weeks prior. If the applicant received other letters from the complainant it is highly probable that he would have kept them to prove and protest his innocence rather than incinerate them.

80. The complainant’s mother was called as a witness in the applicant’s case and gave evidence to the Tribunal in person. The complainant’s mother made it clear that she never believed the allegations. In 2013 the complainant’s mother attended the local police station alleging that she had been punched by the applicant, then changed the version of the events stating that the applicant had put his hands around the complainant’s (that is her daughter’s) throat. The complainant’s mother told police that she wanted the report to remain confidential, and that she just wanted to know how to leave a relationship and how to make the applicant leave her parents’ house. The police gave the complainant’s mother information about applying for an apprehended violence order. Nothing happened to implement the advice she was given. The mother later also spoke with police to the effect that she did not think the sexual assault matters should proceed to court because of the impact of the allegations on her daughter. There is a similar behaviour exhibited by the mother which is of concern in its failure to protect her daughter from known harm.

81. The complainant’s mother gave evidence that the applicant is now teaching her daughter how to drive a car.

82. The Children’s Guardian submitted that the complainant’s mother’s evidence was unreliable and questions are raised about her credibility, particularly concerning her visit to the police station in 2013 and her continued support for the applicant. The evidence of the contemporaneous records from the Department of Family and Community Services about her reactions to the allegations and the support she failed to give to her daughter, overall, does not lend support to, or enhance the credibility of her evidence to the Tribunal.

83. The Tribunal accepts that allegations of sexual abuse can cause significant disruption to a family which in turn causes additional psychological and emotional harm to victims of sexual abuse. The caseworkers from the Department of Family and Community Services recorded that the complainant appeared to take on the responsibility of family needs above her own needs. When she was advised that her mother would be spoken to by the caseworkers the complainant said that her mother would blame her for what this may do to the family. This is a powerful reason for recanting the allegations.

84. In assessing whether the allegations of the complainant have been established on the balance of probabilities the Tribunal recognises that these are serious allegations. The direct evidence of the complainant to the police is persuasive in the level of detail and the escalation of seriousness of the alleged behaviour of the applicant. The actions of the complainant and other members of her family following the recording of the allegations identified that the complainant assumed responsibility for the allegations which placed her under immense psychological and emotional pressure. The applicant simply denies the allegations in a global and broad-brush manner.

85. Having regard to all the circumstances referred to in the previous paragraphs, the Tribunal finds on the balance of probabilities that the events described by the complainant to the police are more likely to have occurred. If the Tribunal is in error in making that finding, the Tribunal finds that there is an unacceptable risk of harm posed by the applicant to children having regard to all the circumstances referred to in the preceding paragraphs.

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

90. The time which has elapsed since the conduct which resulted in charges is a period of 3 to 5 years.

91. The applicant was detained in custody from 1 August 2014 until 6 August 2014. The applicant was released on bail. The bail conditions prohibited the applicant from going near, or contacting, or trying to go near or contact any prosecution witness as well as other conditions such as complying with the apprehended violence order in place. The applicant was held in protective custody at his own request from 3 August 2014 due to the nature of the charges faced. Since that time the applicant has not been reported for any adverse conduct.

92. When the applicant was detained in custody it was recorded that the complainant’s mother is the applicant’s cousin and was named as his emergency contact person: Exhibit R3 page 41. This information is not consistent with the position presented to the Tribunal by both the applicant at the complainant’s mother.

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

93. The applicant was aged 31-34 years old at the time of the alleged offences.

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

94. The stepdaughter was aged 11-13 years old at the time of the alleged offences.

95. The stepdaughter was vulnerable, physically and emotionally, due to her age but also due to the relationship she had with the applicant and the relationship the applicant had with her mother and siblings. The applicant exercised significant authority and control over the complainant and her siblings. The complainant legitimately expected that the applicant and her mother would protect her from any harm.

96. The complainant was concerned that the applicant would be charged with criminal offences saying that this would impact on the family and that the applicant needed to be around to handle her siblings.

97. It was submitted by the Children’s Guardian, based upon the evidence from independent contemporaneous sources, that the complainant’s mother prioritised her relationship with the applicant over her relationship with the complainant. This is a fair submission and accords with the view formed by the Tribunal of the evidence given by her.

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

98. The difference in age between the applicant and his stepdaughter was 20 years.

99. The applicant has no biological children of his own.

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

100. The applicant knew that the alleged victim was a child.

The person’s present age

101. The applicant is currently aged 36.

102. The applicant has been separated from his former partner, the mother of the complainant. The applicant works as a forklift driver and is therefore in employment. This is a mitigating factor for any future risk.

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

103. The applicant has a criminal history.

104. The applicant has convictions in respect to driving related offences from 1998 and a conviction for possessing housebreaking equipment in 2000. In 2009 the applicant was charged with personal violence offences against a male victim, but those charges were dismissed because no evidence was offered.

105. An apprehended violence order in respect to his stepdaughter was withdrawn and dismissed in March 2015.

106. The applicant has maintained his innocence and relies on the withdrawal of the prosecution and the recanting of allegations made by the complainant to support his position.

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

107. The applicant relies upon the evidence of himself, his references and the report of the psychologist Mr Rodriguez, to establish that he is not a risk to children. The applicant also relies upon the fact that the complainant admitted that the allegations she originally made were false. There is no evidence that the applicant has exhibited any sexualised conduct towards children since these allegations were made.

108. The Tribunal is aware of the caution which should be attached to risk assessments and general 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].

109. In essence, what expert witnesses in this Tribunal have stated is that prediction of a relatively uncommon behaviour such as sexual offence 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.

107. Because the applicant has not been convicted of any offence, many if not all of the actuarial risk assessments are not applicable.

108. The applicant has seen Mr Hugo Rodriguez psychologist in order to provide psychological evidence to the Tribunal. The applicant attended upon Mr Rodriguez on four occasions. Mr Rodriguez also interviewed the alleged victim who was aged 13 the time. The applicant told Mr Rodriguez that he was detained temporarily until the charges were withdrawn. The applicant told Mr Rodriguez that his permit to work with children and his firearm license were suspended, and that his firearm permit has since been reinstated. The report of the interview with the alleged victim by Mr Rodriguez occupies a short paragraph in his report. That paragraph is extracted as follows:

“[The alleged victim] informed me that the report she gave the police was untruthful. When I asked her about the reasons for the allegations she explained to me that at that time she was undergoing a period of conflict with her mother and that after hearing a female friend describing sexual allegations, [the complainant] decided to report a similar story to vent her feelings of anger towards the mother. She said that [the applicant] never abused her in any way, and that she has always had a good relationship with him.”

112. The fact that the allegations were, according to that rationale, made about the applicant in order to vent the complainant’s anger against her mother, is not necessarily connected or logical and does not seem to have been explored or explained by Mr Rodriguez. The evidence contained in the material from the Department of Family and Community Services does not support the complainant’s version of events given to Mr Rodriguez. The complainant was assessed by the Department of Family Community Services caseworkers to be very concerned about the impact of the allegations upon her family and was recorded to be congruently distressed about that impact, which again does not support the complainant’s motivation recorded by Mr Rodriguez.

113. Mr Rodriguez performed an assessment of the applicant using peer-reviewed assessment tool to arrive at a personality profile of the applicant. The psychologist came to a conclusion that the applicant displayed in his presentation normal psychological functioning, and he accepted the reasons given by the complainant for the allegations. In those circumstances, it is not surprising that the psychologist formed the view that the applicant should be able to work with children. Mr Rodriguez did not interview the complainant’s mother. Mr Rodriguez accepted what he was told was accurate.

114. The Children’s Guardian required Mr Rodriguez for cross-examination. Mr Rodriguez agreed that he would have to reconsider his opinion if the history that he was given was not complete or was inaccurate. Most significantly, Mr Rodriguez assumed that the complainant had made up the allegations because she was told a similar story by friends at school. Mr Rodriguez was not aware that the allegations had been made by the complainant to her mother at the end of Term 1 and that there had been a discussion between the mother and applicant about the allegations which resulted in an argument. Mr Rodriguez was not aware that the caseworker from the Department also supported the complainant and told her that she was there to support her with her concerns including the mother blaming the complainant for the disruption to the family back when the allegations were detailed months after the initial disclosure to her mother.

115. It was reported by the Departmental caseworkers that the police were charging the mother with an offence because she knew about the information, concealed information and lied about it, which then has an effect on the emotional and psychological well-being of her daughter.

116. Having regard to all the circumstances, the Tribunal has found on the balance of probabilities that the events described by the complainant to the police occurred. The Tribunal has also found that there is an unacceptable risk of harm posed by the applicant to children having regard to all the circumstances referred to in the preceding paragraphs. The Tribunal cannot accurately predict whether the conduct of the applicant will be repeated. The evidence from the applicant is not persuasive that there is no risk of repetition given his stance in relation to the allegations. If it is repeated behaviour the impact on children is likely to be significant and adverse to their healthy development.

117. The applicant has not acknowledged to the Tribunal or shown any real insight into the psychological and emotional impact on the complainant of her being placed in a situation where she is defending the applicant from the allegations which she subsequently recanted under enormous psychological and emotional pressure to keep her family less impacted, as being made up, and false.

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

118. The applicant has provided information including a number of references from his friends. The applicant relies upon the letter from the complainant and the statement from the mother of the complainant in addition to the oral evidence provided to the Tribunal.

119. 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

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

121. The Children’s Guardian submits that the applicant should not be granted a working with children check clearance if the allegations made against him are true.

122. The respondent submits, if the allegations against the applicant are true that a real and appreciable risk to the safety of children is present.

Consideration

123. The behaviour and conduct which triggered this assessment is a serious matter. The Tribunal is satisfied that the behaviour and conduct of the applicant betrayed the trust reposed in him by the family who regarded him as their father. The applicant thus poses an unacceptable risk of harm to the safety welfare and well-being of children.

124. The harm perpetrated by the behaviour of the applicant is likely to resonate with the complainant and her family for many years to come.

125. The applicant has clearly been affected by the allegations which were made and this may be sufficient to discourage the applicant from behaving in a similar manner in the future.

126. The behaviour, if repeated, would be more likely than not to do significant harm to children.

127. The applicant has identified only very limited factors which would mitigate in his favour. The applicant has been supportive of the children with whom he has had a close relationship. By all reports, the applicant is a person who is respected in his community. The applicant has a limited criminal history and has engaged in prosocial activities.

128. The applicant has not acknowledged or shown any insight into the effects of his conduct. The applicant has shown no apparent remorse. Remorse on its own, in any event, is insufficient to ameliorate risk.

129. 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

130. 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.

131. 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.

132. 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.

133. The evidence received by the Tribunal also 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.

134. If the Tribunal is in error in concluding that there is a real and appreciable risk of harm to children on the basis of the allegations being true, it is concluded on the balance of probabilities that all the circumstances surrounding the alleged conduct by the applicant and the events which occurred subsequently means that there is a real and appreciable risk to children or that the existence of such a risk has not been disproven.

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. The decision of the Children’s Guardian should therefore be affirmed.

Orders

136. The order of the Tribunal is that:

1. The decision of the Children’s Guardian dated 6 October 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is affirmed.

2. The application for review of the decision of the Children's Guardian filed 23 October 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: 12 June 2018