CGM v Children's Guardian

[2016] NSWCATAD 190

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CGM v Children’s Guardian [2016] NSWCATAD 190
Hearing dates:	10 March 2016
Date of orders:	23 August 2016
Decision date:	23 August 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M O’Halloran, General Member
Decision:	(1) The decision of the Children’s Guardian dated 19 October 2015 to refuse to grant the applicant a Working with Children check clearance is affirmed.
Catchwords:	CHILD protection – Working with children- Absence of positive finding – Existence of risk – Real and appreciable risk.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 Crimes (Domestic and Personal Violence) Act 2007
Cases Cited:	Commission for Children and Young People v FZ [2011] NSWCA 111 CCC v Office of the Children’s Guardian (No 2) [2015] NSWSC 905 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 R v Commission for Children and Young People [2002] NSWIR Comm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 ADV v Commission for Children and Young People [2012] NSWADT 8 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 M v M [1988] HCA 68; 166 CLR 59 BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 BLD v NSW Office of the Children’s Guardian [2015] NSWCATAD2
Category:	Principal judgment
Parties:	CGM (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: I Fraser (Respondent)   Solicitors: CGM (Applicant in person) Crown Solicitors Office (Respondent)
File Number(s):	1510716
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

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

2. On 13 November 2015 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for a working with children clearance. The applicant seeks a finding by the Tribunal that he does not pose a risk to children.

3. On 19 November 2015 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

4. The jurisdiction of the Tribunal under Part 4 of the Child Protection (Working with Children) Act 2012 ('the Act') is protective and not punitive in nature, as set out by the Court when considering section 28 of that Act: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see sections 3 and 4 of the Act.

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

4 Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

5. These proceedings arise because on 19 October 2015, the Children's Guardian made a decision to refuse to grant CGM a working with children check clearance. On 13 November 2015 the applicant CGM applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act. There is no dispute that the application has been brought within time, or that the Tribunal has jurisdiction to hear the matter.

Background

6. On 4 December 2014 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a clearance in order to resume his vocational training work with clients including adolescents. At present the applicant’s duties have been reorganised into telephone work where he does not have direct (face to face) contact.

7. During the period from December 2014 until May 2015 the respondent considered the applicant's application. On 28 April 2015 the respondent imposed an interim bar on the applicant.

8. On 14 August 2015 the respondent issued a 'Notice of Proposed Refusal of Application' pursuant to section 19 of the Act. After considering all of the material previously provided and reviewing the matter, on 19 October 2015 the respondent finalised the working with children check and the applicant was refused a clearance.

9. As a result of the refusal of the clearance the applicant is unable to engage in child related employment.

10. On 13 November 2015 the applicant lodged an application for administrative review before the Tribunal. The grounds of the application are detailed but in summary they address the primary concerns of the respondent. Those concerns being that the respondent referred to comments based on a mistaken interpretation of the evidence. In addition the grounds covered that the applicant has a significant medical condition, has worked hard all of his life and has had the significant matters dismissed at Court.

11. Amongst the matters referred to were reports and records of matters recorded by the relevant departmental officers, criminal investigation material, court outcomes and related information relating to mandatory notifications and reportable conduct allegations.

12. The issue now to be decided by the Tribunal is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting or refusal of a clearance in relation to the applicant: (see section 63 Administrative Decisions Review Act 1997 the ‘ADR Act’).

The working with children legislative scheme

13. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act).

14. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. (See section 4 of the Act).

15. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of section 8(1) is an offence.

16. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act). A child related role is set out in section 6(3) of the Act.

17. Section 14 of the Act provides that a person is subject to an assessment requirement under the Act if any of the matters specified in Schedule 1 apply to the person.

18. Section 15(1) of the Act provides that the Children's Guardian must conduct a risk assessment of an applicant for a clearance to determine whether the applicant poses a risk to the safety of children.

19. Section 18(2) provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.

20. Part 4 of the Act deals with reviews and appeals. Section 27 makes provision for administrative review, by the NSW Civil and Administrative Tribunal, of decisions of the Children's Guardian.

21. Section 27 (1) of the Act makes provision for administrative review by the Tribunal of (amongst other things) a decision of the respondent to refuse a clearance (see section 27 (1)). The section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) ………...

(3) ………...

(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

22. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Subsection 30 (1) of the Act provides:

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

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

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

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

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

(g) the person's present age,

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

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

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

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

Burden of Proof

23. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

24. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

25. An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

26. In addition, in this case there is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s28 of the Act.

27. In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In that regard, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 22 above). Section 15 (4) sets out the criteria which the Children's Guardian may consider. The Tribunal in its administrative review considers similar criteria in that section 15 (4) and section 30 (1) are drafted in similar but not identical terms. An important distinction is the word "may" in 15 (4) and "must" in 30 (1).

28. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'

29. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

30. The remarks have also been cited with approval in AYU [at 23], BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB No 2 [at 24] before this Tribunal.

The Issue to be decided

31. The primary issue before the Tribunal in this application as outlined at paragraph 12 above, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a clearance in relation to the applicant: (section 63 Administrative Decisions Review Act 1997).

The Hearing

32. The matter was heard on 10 March 2016 at a regional city in New South Wales. The applicant was self-represented and the respondent was represented by Counsel.

33. At the commencement of the hearing the Tribunal identified that the only witness to give evidence at the hearing would be the applicant himself. The respondent did not call any witnesses but relied on the material provided under section 58 of the ADR Act and other material that had been obtained prior to the hearing using the respondent's powers under section 31 of the Act.

34. Prior to summarising the evidence in our view it is necessary to summarise the circumstances of the applicant in respect of him requiring a clearance, and the respondent’s refusing to grant a clearance.

35. The applicant has worked in employment services for many years, and at some times this employment was with charities and ‘not for profit’ organisations. The nature of his work involves at times in the past and potentially in the future the face to face contact with clients who are under 18 years of age. Broadly for these reasons, the applicant requires a clearance to pursue his chosen and pre-existing area of employment.

36. The respondent identified criminal charges in the nature of sexual abuse of child victims (partially historical) but which were brought in recent years. Those matters were dismissed at Court and other similar allegations involving a separate complainant have not proceeded to Court. The respondent also identified two assault / AVO convictions in the early to mid-1990’s (not involving children), child abuse allegations from 20 years ago, and a workplace conduct matter in the last five years as a substantial basis for determining that the applicant posed a risk to children and young persons.

Applicant's Written Evidence.

37. The applicant filed a detailed application for review in addition to a stay application. Annexed to that material were the following matters tendered by the applicant:

• Copy of TAFE Academic record.

• Copies of Certificate IV qualifications 2014, 2012, 2004.

• Copy of Certificate III qualification 2003.

• Copy of Diploma qualification 2006.

• Reference from ‘R.S.’ managerial colleague.

• Reference/ letter from ‘H.M.’ colleague.

• Reference / letter from ‘L.D.’ colleague of 10 years.

• Personal Character reference from ‘A.M.’ colleague.

• Letter of support from partner: ‘J.S’ also referred to as ‘V.S.’.

• Letter of support from ‘J.V.’ colleague.

• Letter of support from ‘C. G.’ colleague.

• Letter of support from ‘C.M.’ colleague.

• Letter for ‘C.T.’ supervisor 2003-2005.

• Evidence in support of application for Disability Support pension prepared by Solicitors.

• Statutory declaration of the applicant re: Working With Children check 11 may 2015.

38. The respondent proceeded with an opening statement and submissions prior to the applicant’s giving evidence.

Respondent’s Evidence and Submissions.

39. The respondent tendered three volumes of material. The section 58 documents were split into two volumes Exhibit’s R 1 and R 2 comprising 21 items (650 folios) upon which the respondent made the decision. The first nine items covered the risk assessment process and the other material consisted of requests and responses for information. Exhibit ‘R 3’ contained 45 folios of material obtained after the refusal of the clearance.

40. The respondent identified at the outset that the 1993 conviction concerning the applicant’s assault on his then wife and the 1996 breach of apprehended violence order were not in dispute.

41. The respondent took the Tribunal to a number of Community Services reports whereby allegations had been made in 1997 concerning physical and emotional abuse of daughter (then aged 6) and son (then aged 10). The allegations included pulling of hair, knocking son off bicycle, bending fingers back of daughter until she cries, and making threats to kill ex-wife in presence of young son. Evidence was tendered concerning disclosures of matters relating to these alleged instances.

42. The respondent submitted that some of these matters had been admitted by the applicant (but not all). In respect of an incident said to have occurred in 2011 involving non-consensual sexual activity with a colleague, the respondent accepted (and submitted to the Tribunal) that the allegation was now established to be false.

43. In 2013 the respondent submitted that child sexual assault allegations were made nominating the applicant’s niece as a victim. The niece alleged seven separate incidents both at her home (in another regional area of New South Wales), and the applicant’s home. The last incident also included an allegation that the sister of the victim was present. These matters were discontinued with the victim not wishing to take any further criminal action.

44. Further allegations concerning the applicant and his step granddaughter resulted in criminal proceedings. Those allegations imply an offence of indecent assault when the applicant touched or tried to touch the victim placing his hand on her genital area by trying to get inside the victims underpants. Whilst an A.V.O. was consented to by the applicant without any admissions, and a community services ‘assessment’ concluded that the allegations were sustained, the matters were dismissed at Court in 2014.

45. The respondent submitted that both the allegations involving the niece and the step granddaughter involved victims / complainants of similar ages. It was further submitted that the jurisdiction whilst no punitive, was protective in nature.

46. Further submissions were made about risk and the task that the Tribunal was to undertake. In closing the respondent submitted that it was not necessary for the Tribunal to make a positive finding in respect of the ‘non-conviction’ matters.

Applicant’s Oral Evidence

47. The applicant gave evidence about his current employment and his two previous positions / placements. His work entails being a support specialist currently utilising the method of a telephone consultant. He provides assistance to job seekers in his current position, but in his prior positions he was more involved in training type duties.

47. In evidence in chief he disclosed matters relating to the conviction for assaulting his wife. He had three children with his wife, a son born in 1988, a daughter born in 1990 and a son born in 1991. The applicant conceded in his evidence in chief that the allegations involving his children as victims were made, but he did not admit the allegations as occurring.

48. However in respect of the allegation concerning his son and the bike, he did admit that he threw a ball at his son who subsequently fell off his bike. The applicant in his evidence said that this was part of ‘play’ and not ‘an intention to harm or hurt him’.

49. The applicant denied in his evidence an allegation that he had hit his son ‘on the private parts really hard’. The applicant did admit to part of the allegation that around this time he had hit the son across the legs with a clothes line cord, but denied the further allegation that he had tried to choke his son. The applicant gave evidence that this all occurred in the context of the son (DOB 1988) leaving the side gate open whereby the younger child got out onto the road.

50. The applicant denied bending his daughter’s fingers back, to the extent that she cried, but conceded that in the context of rough play something like this may have occurred.

51. In evidence in chief the applicant stated that he is a different man now to the man he was in previous decades of his life. Previously he was a person who ‘bucked the system’ whereas now he is a person who ‘follows the system’. The applicant set out his past behaviour as being in part attributable to a number of factors including; being from a broken home, a District Court culpable driving trial, following his own father’s poor example, and ‘marriage bust ups’.

52. The significant change in the applicant as a person came about due to meeting his current partner in about 1997 and the positive effect that she has had on him.

53. The applicant admitted in questioning that the using of the clothesline cord to dispense corporal punishment was totally inappropriate. The applicant gave evidence that due to a number of factors concerning his upbringing and childhood environment his son ended up in foster care for some years.

54. In respect of the 2011 allegation of a sexual assault at work, the applicant stated that the allegation was false. The applicant gave evidence that the accuser was originally a client and that there was an allegation of a sexual act performed in a disabled toilet. The applicant was asked whether he had any contact with the accuser in this matter outside of work, to which he answered ‘yes’. That contact was when he attended local hotels on Friday afternoons after work. It was not possible to necessarily avoid people in such a context. Whilst the accuser was in her early to mid 20’s at the time and the applicant was in his mid forties, it was submitted that the accuser was vulnerable, to which the applicant replied that ‘all of his clients in his caseload were vulnerable’.

55. The applicant was asked about the 2013 allegations concerning his niece. The niece was 13 years old in 2013 and the other complainant / victim is the granddaughter of the applicant’s wife. The granddaughter was also approximately 13 years old in 2013. A significant part of those allegations centred on the applicant being left alone with the girl / girls. The applicant denied ever being left alone with the grandchildren. This was asserted by the applicant to be because his partner had advised him on numerous occasions.

56. The applicant did however state that the grandson had occasionally been dropped off or picked up when he was the only adult present, but such matters would only involve a few minutes. In addition the applicant conceded that there may have been an instance when he ‘could’ been left alone with them when the relatives went out shopping. In respect of a male child (not a complainant) the applicant conceded that he was left alone with him when ‘Nan went to Woolworths’.

57. The applicant denied that he had ‘kids calling him pop – or going to family events and or school events with him.’ The applicant gave evidence that he had no contact or no direct contact with the granddaughter (from the 2013 allegations) since. If the granddaughter is coming to stay, the applicant’s evidence was that he goes away for the weekend to a mate’s place.

58. The applicant was taken to the incident reports as set out by Community services at pages 145-148 of Exhibit R1’. The applicant’s evidence was that in any playfulness or interaction with the girls he ‘tickled them only’. However the applicant admitted in his evidence that he was not entirely sure.

59. The applicant was asked about the references in the material to ‘kissing nieces on the lips’. The applicant stated that this was ‘another thing in their family and that even his sister does it’. The applicant admitted to at times kissing the niece who made the 2013 allegations.

60. The applicant gave evidence that the charges concerning the granddaughter were dismissed in April 2015.

61. During the later part of the applicant’s evidence he was questioned about matters concerning contact with the mother of one of the victims. The mother had contacted the victim’s father (who was the applicant’s stepson) and the applicant was questioned about what he knew about this. The applicant was later served with an interim apprehended violence order arising from those allegations.

62. In evidence were a series of Short Messaging Service (SMS) exchanges between the applicant and his sister concerning one of the alleged victims and psychological treatment that she had received in part arising from assaults (in the nature of those alleged concerning the applicant).

63. These matters (in the applicant’s evidence and answers), pointed to possible harm arising from a caravan based in the Hunter Region with the family based on the Central Coast of New South Wales. The applicant suggested in his evidence that the alleged victim’s male cousin had been responsible. The flavour of the evidence of the applicant (both text and oral) was that ‘something untoward will come of that (matters involving the niece as victim) arrangement down there’.

64. The matters appeared to be postulated as a theory or alternative explanation as to why the relevant young person may have made the allegations concerning the applicant that she had.

Submissions

66. The respondent submitted that the case is analogous with the case of BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 particularly in respect of certain significant charges not being proved in the criminal context.

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

68. The applicant submitted that he has worked hard all of his life, and is an upstanding member of the local community. The applicant submits that he is himself vulnerable due to a physical deficit with one of his senses.

69. He again submitted his position in respect of being a changed person. In the applicant’s submission the Tribunal should not go back to the person he was prior to 1998. In respect of his motivation for the clearance he reiterated that it will allow him to return to the full scope of his employment skills and experience. Alternatively, due to his ‘disability’ (see paragraph above), he submitted that he could take the easy way out and go on a pension. In his view he wants to work and should be allowed to work fully.

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

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

Section 30 (1) considerations

(a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.

72. There are a long list of matters which the respondent relied upon in making their assessment. The 1993 assault conviction on the applicant’s former wife. This matter now constitutes a domestic violence offence under the applicable legislation, being the Crimes (Domestic and Personal Violence) Act 2007. It was submitted that the applicant’s past clear record and plea would have mitigated his sentence. The 1998 conviction for a breach of an Apprehended Domestic Violence Order was submitted as not minor but significant on the agreed facts.

73. The allegations of child mistreatment from 1997 involving physical abuse are relevant to the matters that we must consider. The applicant provided various reasons for his responses with his children and whilst some of those can be somewhat lessened by the context, there was agreement that the use of the clothesline cord was inappropriate.

74. The 2011 workplace incident was initially characterised in false terms by the complainant, and noting that matters were both consensual and occurring outside the workplace, there was concern in respect of the applicant’s ability to maintain proper professional boundaries and operate within his employer’s Code of Conduct.

75. The 2013 reports concerning the applicant’s niece are serious allegations. The allegations include digital penetration assaults by the applicant when the complainant / victim was between 5 and 10 or 11 years of age. Whilst the matters were investigated and Apprehended Violence Orders obtained, the allegations did not proceed to a prosecution. The allegations were substantiated to the civil standard by the Department. The seriousness of the allegations includes the fact that the applicant was in a position of authority over the complainant / victim.

76. The 2013 charges relating to the applicant’s (step) granddaughter are also serious matters. These allegations arose from a disclosure by another victim who witnessed the matters. The matters proceeded to Court and were dismissed in 2014. The Tribunal was not advised of the basis for the dismissal. The applicant denied all allegations concerning the niece and granddaughter.

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

77. The applicant’s last criminal conviction was in 1996. However since that time departmental reports have arisen involving his own children (non sex related abuse allegations), and reports in 2011 and 2013. The allegations involving the niece go back to approximately 2005. There is a similarity with a number of the allegations in that they are either sex based (in the nature of the alleged assaults) or assaults of a non-sexual nature that arise in a domestic setting. All of the behaviour amounts to allegations of violence. In all instances the victims would be considered vulnerable, either being a child, or a female.

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

78. The applicant’s age at the time of the 1993 assaults was approximately 30 years of age. In the 1997 allegations involving his children he was 34 years of age. In respect of the 2011 workplace conduct matter there was a significant age difference. In the allegations by the niece the applicant was aged between 42 and 48 years of age, and in respect of the granddaughter allegations he was approximately 48 or 49 years of age.

(d) The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim.

79. As noted above all of the victims were clearly vulnerable and except for the 1993 and 1996 matters, their age was relevant. The victims were children in the most serious allegations. Their ages ranged from 4 or 5 years to approximately 11 years of age.

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

80. We note the matters referred to above in respect of Section 30 (1) d). For all matters other than the 1993 and 1996 matters the age difference was significant. The applicant was an adult, and in respect of the children, they were under his authority and as a result vulnerable. In respect of the workplace matter, the female was a former client.

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

81. In all of the allegations involving children, (1997, and the niece and step-granddaughter), it is clear that the applicant knew that the victims / complainant’s were children.

(g) The person's present age.

82. The applicant was 52 years old at the time of the hearing.

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

83. The applicant’s criminal record whilst not significant, contains two serious matters for which custodial sentences of up to two years were potentially available. However the overall record (whilst significant in the nature of violence allegations) is not a serious record.

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

84. As noted above, the pattern of allegations and inappropriate behaviour is a matter of some concern due to the similarity of the circumstances and the nature of the alleged conduct. The applicant has admitted to some instances of excessive physical restrain, reprimanding of children which on an objective assessment may amount to physical abuse. There were also admissions to kissing one child relative on the lips. These matters collectively in our view elevate the potential likelihood of repetition by the applicant. Having noted those matters, we note the applicant’s recent evidence admitting the fact that he may have been alone with the children and admitted kissing a female child relative on the lips, notwithstanding his assertions that he had changed his life and is not longer the man he was.

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

85. The applicant provided evidence of his significant complaint’s free history of working with young persons. He also provided evidence of his training and other matters relevant to child protection and behaviour management / control. As noted in admitting the matters from 1993-1997 the applicant’s evidence was that his life at that time was in bad shape and he is no longer the man he was. He maintains that there is not substance to the serious allegations of the female relatives which were reported in 2013. The applicant has provided an alternate theory for some of those allegations and produced text message print outs as evidence to support that theory or explanation.

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

86. The respondent submitted that the applicant was not entirely frank with his answers to investigating police and for example had omitted to mention aspects of the 2011 behaviour related to the allegations by the victim / complainant. This it was submitted also occurred in providing information to the respondent during the risk assessment process.

87. The respondent submitted that these matters cast doubt on the applicant’s candour and honesty.

Consideration

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

89. Reference was made in submissions to the case of BKE [at 63], which in turn referred to the case of M v M [1988] HCA 68; 166 CLR 59. Significantly submissions focused on whether the Tribunal being satisfied that a particular allegation on the available evidence had not been made out, whether the Tribunal could still be satisfied that the applicant did not pose a real and appreciable risk.

90. In M v M the Court was considering a finding from the Family Court of Australia and whether there was an unacceptable risk to the child. The Court stated at paragraph 23 and 24:

23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

91. That case was concerned with whether there existed an unacceptable risk that the child would be exposed to harm in the nature outlined. At paragraph 25 the Court examined the various risk references:

25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

92. In the present case the relevant test is to consider whether the applicant poses a ‘risk to the safety of children’. (Section 18 (2) ) and that the risk is ‘real and appreciable’ (as per Young CJ in Eq in Commission for Children and Young People v V ).

93. In the case of BKE the following was provided in respect of consideration of the matters arising from M v M. At paragraph 33 Beech-Jones J observes:

33.The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

94. In the current case, the respondent submitted that a number of circumstances would lead the Tribunal to conclude that a clearance should not be granted. Those matters included:

• The seriousness of the conduct against the niece and the granddaughter and its recent occurrence.

• The applicant’s history of violence, including violence towards children.

• The lack of any treatment or risk management measures in respect of the conduct of the applicant.

Further Consideration and Findings

95. In making a finding as to whether the criminal allegations from 2013 (involving charges) occurred, we find that we are unable to make a positive finding. In doing so we find that the evidence in the form submitted at the hearing is (in our view) not sufficient to establish those allegations to the civil standard. We note that there is no official information (other than the applicant’s evidence) as to why those matters did not proceed. That is not to suggest that the allegations have no truth, (or in the alternative – have truth), but rather than we are unable to positively determine them, in that we are required to be reasonably satisfied as to their veracity (on the balance of probabilities). Therefore whether those matters occurred, or did not occur remains open.

96. However, in the context of whether the applicant poses a risk (notwithstanding the finding above), having regard to all of the material before the Tribunal, including the pattern of the allegations and the similar theme running through the allegations, we find that the existence of a real and appreciable risk has not been disproven. It therefore follows that the evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety and wellbeing of children.

97. Whilst there can be an absence of a positive finding in respect of various allegations, the nature of the allegations may be indicative of a pattern of behaviour.

98. In the context of the matters canvassed in BKE, in our view the absence of a positive finding in respect of offences, does not (on the current evidence and material), obviate the existence of risk in this matter. As the Supreme Court stated that in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, the Tribunal may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child.

99. We are satisfied that during the course of the proceedings, the applicant was given a fair hearing and afforded the requisite level of procedural fairness and that there was no denial of natural justice arising from how the Tribunal received his case. The Tribunal was mindful of the fact that the applicant was unrepresented when giving his evidence and Counsel for the respondent adopted an appropriate stance during cross examination which considered the possible need for re-examination by the Tribunal.

100. We again note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

101. In our view having regard to all of the material before the Tribunal, the applicant poses a risk to the safety of children, a risk that was both real and appreciable. In this regard the respondent was obliged, in determining the application for a clearance, to refuse to grant a clearance to the applicant.

102. It therefore follows that the correct and preferable decision is for the Tribunal to affirm the decision of the Children’s Guardian.

103. For the reasons set out above, and specifically having regard to the matters as set out in section 30 of the Act (see paragraphs 72 - 87 inclusive above), we reach the following conclusion.

Conclusion

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

105. The evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety and wellbeing of children.

106. In our view having regard to all of the material before the Tribunal, the applicant poses a risk to the safety of children. In this regard the respondent was obliged, in determining the application for a clearance, to refuse to grant a clearance to the applicant.

107. It therefore follows that the correct and preferable decision is for the Tribunal to affirm the decision of the Children’s Guardian.

Orders

1. The decision of the Children’s Guardian dated 19 October 2015 to refuse to grant the applicant a Working with Children check clearance is affirmed.

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

Amendments

11 October 2016 - Corrected name of Counsel on cover sheet

Decision last updated: 11 October 2016