CGO v Children's Guardian

[2016] NSWCATAD 200

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CGO v Children’s Guardian [2016] NSWCATAD 200
Hearing dates:	23 March 2016
Date of orders:	02 September 2016
Decision date:	02 September 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M Royer, 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 Evidence Act 1995 (NSW)
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 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 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 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Category:	Principal judgment
Parties:	CGO (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: C Coleman (Applicant) C McGorey (Respondent)   Solicitors: Tsintilas and Associates (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1510718
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for decision

1. The Applicant in these proceedings is referred to as "CGO". CGO 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 23 December 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 CGO a working with children check clearance. On 13 November 2015 the applicant CGO 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 16 February 2015 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a clearance in order to resume his chosen career aspect of youth work with clients who are predominantly adolescents and teenage children.

7. During the period from February 2015 until October 2015 the respondent considered the applicant's application. In June 2015 the respondent identified a record of the nature which required a risk assessment of the applicant.

8. On 9 September 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:

1) I do not pose a risk to children and am of good character.

2) I have not been provided with the material (including the finding of misconduct asserted against me) upon which the OCG states it based its order, although I am aware of the incident.

3) The incident, and the background circumstances, about which I can provide evidence, did not merit refusal of a WWCC.

4) I did not make sexually explicit comments nor misconduct myself sexually.

5) The correct and preferable decision is that I be granted a Working with Children Check Clearance (WWCC).

6) A reasonable person would allow their child to have direct contact with me while I am in child related work without supervision, and it is in the public interest to make the order.

11. The final ground (above) does not strictly apply to these proceedings as the initial application (requesting the administrative decision now under review), was made prior to 24 November 2015.

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. The recent case of Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 addresses the notion of where the onus of proof lies in a merits review proceedings, and what standard was applicable. The proceedings concerned a subsequent appeal from a single member merits review matter before the Tribunal. At paragraphs 71 – 77 the Court observed the following:

71. It was said that, pursuant to s 38 of the Act, the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]- [36].

72. Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test.

73. In response to that set of submissions, counsel for the appellants explained that his position was that the question of whether there is an onus of proof on either side does not affect the “standard of satisfaction” that the Tribunal must possess before it makes a decision. He further submitted that the decision in Briginshaw established a standard of satisfaction, rather than an onus of proof.

74.Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party.

75. In Briginshaw, the well-known passage from the judgment of Dixon J (as his Honour then was) appears at pp 361-2:

When the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

76. To my mind, what was said in Briginshaw is a refinement of the civil standard of proof; the principle elucidated in that judgment finds contemporary expression in s 140(2) of the Evidence Act 1995 (NSW).

77. As a matter of logic, if there was no onus of proof cast upon either party, there can have been no standard of proof. If there was no standard of proof, including the civil standard of proof on the balance of possibilities, the principle in Briginshaw (it being a refinement of that standard) had no application to the proceedings before the single member.

26. 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.

27. 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.

28. 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).

29. 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". ...'

30. 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.

31. 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

32. 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

33. The matter was heard on 22 March 2016. Both the applicant and the respondent were represented by Counsel, with instructing Solicitors. At the conclusion of the hearing the matter was adjourned part-heard and listed for directions on 7 April 2016. This situation arose due to the identification of further evidence prior to the conclusion of the hearing, and the need to formalise that evidence and for the parties to consider their position.

34. At the commencement of the substantive hearing the Tribunal identified that two witnesses for each party would be giving evidence at the hearing. For the applicant these comprised the applicant himself and his Expert a Forensic Psychologist. The applicant also relied upon written evidence, material and submissions. In respect of the respondent witnesses ‘J.H.’ and ‘P.T.’, staff of the applicant’s previous employer, would be called. The respondent also 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.

35. 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 recent factual matters concerning his employment which relate to the respondent’s refusing to grant a clearance.

33. The applicant had worked in a number of areas in addition to studying since immigrating to Australia in the late 1990’s. In 2000 the applicant received Australian Citizenship. Some of the employment areas involved working with charities and Non Government Organisations (NGO’s) which provide support services to clients including young persons. In May 2015 the applicant was working at a youth refuge run by his NGO employer in regional New South Wales. A number of matters concerning the sending and receiving of text messages and photos on mobile phones caused his employer to meet with the applicant about a complaint made by a young person who was a client.

34. The young person had made a complaint about the applicant, and as a result a meeting with the NGO management was held in May 2015 and the applicant was asked questions in respect of the complaint. The employer made a record of what occurred at the meeting and this record was signed by the applicant. Due to the nature of the allegations (concerning the contents of a text message and photo involving a young person who was a client) and the applicant’s explanation, the employer dismissed the applicant from his employment and an application for an apprehended personal violence order (AVO), was made on behalf of the young person.

35. The applicant contacted the respondent soon after he was dismissed inquiring as to the impact that such a matter would have on his clearance application. In addition the respondent made inquiries with the employer about the matter and a risk assessment was conducted by the respondent (as required by Clause 2 (a) of Schedule 1 of the Act). The Tribunal notes that this matter was disclosed by the applicant to the respondent.

Applicant's Written Evidence.

39. The applicant filed a detailed application for review. In addition the applicant filed the following material:

• Affidavit of the applicant sworn 15 February 2016. Eights items were annexed which included personal and professional references, medical evidence, and educational qualifications and records.

• Expert Report of the Forensic Psychologist dated 18 January 2016.

• Supplementary Report of the Forensic Psychologist dated 29 February 2016.

40. In addition the applicant tendered detailed written submissions and an e-mail tendered late in the hearing authored by the applicant which was marked as ‘MFI 1’.

Respondent’s Written Evidence.

41. The respondent tendered three volumes of material in addition to evidence and submissions.

• The section 58 documents filed 16 December 2015.

• Further documents obtained under section 31 of the Act filed on 10 February 2016.

• Further documents obtained under section 31 of the Act filed on 22 March 2016.

• Affidavit of witness ‘J.H.’ affirmed 11 March 2016.

• Affidavit of witness ‘P.T.’ affirmed 14 March 2016.

• A further affidavit of ‘P.T.’ was prepared on 8 April 2016 after the substantive hearing. (see paragraph 33).

42. In addition the Respondent filed written submissions.

Respondent’s Evidence at Hearing

Witness ‘J.H.’

43. The respondent’s witness ‘J.H.’ gave evidence at the hearing where she adopted her affidavit of 14 March 2016. In her evidence she indicated that herself, witness P.T. and the applicant took part in the meeting following the complaint. The evidence was that the applicant showed the witness and her colleague a series of photos on his phone. Her evidence was that there were nine photos in total as she counted eight ‘swipes’ of the phone, when the applicant was accessing the photos. The witness said that the applicant wanted to keep some of the photos to show the Ombudsman. In evidence in chief the witness stated that she was concerned that the applicant had photos of a client (the young person) on his personal phone. Her evidence was that some of the photos she saw were of the young person in the recreation room, and some were of him within the office.

44. One photo from inside the office was described as the young person ‘with a chair’, whilst another was described as the young person lying or laying ‘on the desk’. The witness advised that the applicant said that he presented the phone to them because he wanted to show the photo that he had referred to earlier, to his manager. The witness’s evidence was that the first photo was of the young person ‘lying on the desk beside the applicant – who was working at the desk.’ The witness’s evidence was that the descriptions of the young person were minuted from the meeting. One photo was of the young person standing behind a chair. Some photos were of the young person and some were of him walking away.

45. The witness gave some brief evidence about the operational procedures that applied to clients such as the young person, as the specific service constituted a young persons homeless service.

46. In cross-examination the witness was questioned about the operational procedures and processes. Her evidence was that staff are inducted into the organisation and that she was certain that the applicant would have had job specific training and induction. The witness advised that she was involved in recruiting the applicant to the organisation and may have seen him two or three times in the three months that he had worked there prior to the complaint. Her evidence was that this was due to the fact that the witness did not work at a refuge (in an operational area) but worked in head office in Human Resources.

47. The witness was questioned about numerous behavioural problems concerning the young person. In addition the witness was asked about the disciplinary meeting with management and why no offer of a support person was made. It was put to the witness that Mr ‘L’ (a support person for the applicant) was available.

48. The witness was not aware of when the photos were taken but stated that the text messages were sent on 4 May 2015. The witness gave evidence that she was not aware of any prior concerns by the applicant about the behaviour of the young person. However when questioned the witness agreed with the proposition that it was the applicant who raised the issue of the existence of photos of the young person and had in fact offered to show the photos to management. This aspect arose from the initial basis of the meeting being concerning the content of the text messages.

49. A proposition was put to the witness that the first eight photos were part of a ‘burst’ showing a number of different photos in different locations. In the eight or nine photos following there were different photos / locations. This evidence seemed somewhat confusing as the witness gave evidence that she did not see all of the photos. At the conclusion of her evidence the witness stated that she had not spoken to the other witness about this matter.

Witness ‘P.T.’

50. The respondent’s second witness ‘P.T.’ gave evidence at the hearing. In evidence in chief she stated that the young person had telephoned her in respect of texts that he had received from the applicant. Her evidence was that when viewing the photos, the first photo was of the young person on a bench / desk with his right hand on his groin and he was looking directly at the camera and smiling. Her evidence was that the picture was visible to her.

51. The witness gave evidence that after the first 5 photos or so there was an ‘album’ of about 6 photos. The second photo was of the young person who appeared to be in the recreation room with a chair. The witness could not describe the other photos other than the young person being a subject in each of them. The witness stated that this was because the applicant was busy deleting them at that time.

52. In her evidence the witness stated that she raised with the applicant the seriousness of the situation concerning the complaint and texts and now the photos. The witness gave evidence that she advised the applicant that it would not be in his best interests to keep the photos and after that he agreed to delete them.

53. The witness gave evidence about the policies and procedures that are in place to manage a situation and assist a worker who is experiencing difficulties with a client. Her evidence was that she was available during office hours by either telephone or e-mail to assist employees. She was also available on call after hours.

54. The witness gave evidence that she was involved in the applicant’s employee induction and that she had arranged for him to be ‘buddied up’ with a more experienced worker. The witness stated that she had no knowledge of the photos prior to attending the meeting on 6 May 2015. The witness (as the supervisor / manager) visits the regional centre where the applicant was based on a weekly basis. She is substantively located in another town some 1 hour and 20 minutes drive away. Her evidence was that if a worker had been assaulted, put in a headlock or similar, then she would expect the worker to raise the matter with her (by either telephone or e-mail).

55. In cross examination it was put to the witness that the applicant had called her about the behaviour of the young person and had held the phone up so that she could hear how the young person was behaving. The witness did not recall this incident. The witness did however confirm in her evidence that the young person had behavioural problems and these were manifested in outbursts etc at that time. The evidence was that the young person was a Department of Juvenile Justice (DJJ) placement. The witness confirmed that the applicant had said words to the effect of ‘you will have to tell J.J.’ following one of the outbursts.

56. Counsel for the applicant put a proposition to the witness that his client had ‘two shifts with a buddy before letting them loose’. The witness was involved in the applicant’s recruitment, and as a result knew the boarding house where he was living and that as such, in such a social situation economically the applicant was ‘close to homeless’. The witness noted those matters but rejected the characterisation of the applicant as ‘awkward’, stating that in her view he was thoughtful and considered rather than awkward.

57. The witness confirmed that there was a curfew in place at the relevant time and that the young person had previously broken the 6:00pm curfew from time to time. It was put to the witness that staff and other residents took photos of staff and residents at time during activities at the refuge. When it was suggested that there were 50 to 100 similar photos taken by others, the witness rejected this assessment and stated that it would have been closer to 5 photos.

58. Reference was made to ‘G’ a colleague of the applicant, and that ‘G’ had picked the young person up from school on the date of the text message. ‘G’ performed this role because the applicant did not drive.

59. Matters were raised concerning the level of training that the applicant received. It was suggested that the applicant had received no specific instruction in ‘sexualised behaviours’ matters. The witness stated that the applicant was trained in the basis of being a casual employee. It was suggested in questioning that whilst the applicant was a casual employee he had been placed in a refuge and was in charge overnight. The witness responded with evidence that she calls in and out to the manager and staff every day, except if she believes that the placement of the young person is stable. In any event the witness visits the workplace at least every week.

60. The witness was asked about what type of training support, supervision and induction the applicant received. The witness gave evidence about meeting the applicant one on one concerning his roles and responsibilities, discussing what being a worker involves, outlining support mechanisms, including outlining how he could seek support if needed.

61. Evidence was given that the induction was a ‘generalised induction’, with no specific behaviour management strategies being raised. However the witness advised that the issue of how workers report concerns about a young person was dealt with in the induction program. The witness confirmed that staff sign a code of conduct when commencing employment.

Affidavit evidence of witness ‘P.T.’ after completion of her oral evidence.

62. Further evidence was tendered on behalf of this witness following matters arising from the applicant’s evidence at the hearing. (See paragraph 33 above). The witness prepared another affidavit affirmed 8 April 2016. The affidavit addresses the claim that the witness had received a report from the applicant on 22 March 2015 in respect of the young person.

63. The witness deposed that her records contained seven complaint reports concerning the young person, but that none of the seven were from the applicant. However later in her affidavit the witness identifies an e-mail shown to her after the completion of her oral evidence. (This is the e-mail raised in the applicant’s evidence in chief). In evidence the witness stated that this e-mail had been received after hours and it is her usual (business) practice not to read e-mails received after business hours unless contacted by staff by telephone about the matter. It appears from the terms of the affidavit that the witness did consider the applicant’s e-mail (contemporaneously), and considered it (by its terms and context) not to be an incident report.

64. The witness did not recall asking the applicant to prepare a report in relation to the young person prior to 2 May 2015.

Applicant’s Oral Evidence

65. The applicant gave evidence at the hearing. In evidence in chief he adopted his affidavit of 15 February 2016 but with the final sentence of paragraph 26 deleted, paragraphs 28 and 29 deleted. The applicant was not currently working, but studying. The applicant gave evidence concerning how he obtained the youth worker job. He advised that he passed his C.V. on to a friend and was contacted by ‘P.T.’. At the second interview he was asked to commence work and given a 15 minute induction. He was invited to another meeting with ‘P.T.’ in respect of completing case notes, but did not attend this meeting. The applicant advised that he did have one meeting with employee ‘H’ concerning the housing service for homeless youth.

66. In evidence in chief the applicant stated that ‘P.T.’s main role involved a women’s refuge in a regional centre. He met ‘J.H.’ at interview and recruitment, and saw her at the meeting. His evidence was that ‘P.T.’ telephoned him once indicating that it was not a problem if there was difficulty locating referees, and not to worry about providing copies of I.D. etc.

67. The applicant gave evidence that he had a conversation about how the young person was trying to highlight how sexy he was. He raised the issue with ‘P.T.’ via case notes. He gave evidence that one day he was doing (typing) his case notes and the young person just came in. In respect of the young person’s behaviour the applicant thought that he might have been doing exercises. The applicant stated that he was concerned about the chair (being held up) next to a glass window by the young person. In addition when asked to get off the table / desk that he was laying on, the young person did not wish to move.

68. The applicant’s evidence was that during this ‘incident’ involving the young person, ‘he was fully dressed. I made one attempt to take a photo of him, and when I had taken it, he then jumped off the table and stated aren’t I sexy.’

69. The applicant stated that he had raised issues concerning the young person’s behaviour with ‘P.T.’ and referred to an e-mail of 2 May 2015. (See paragraph 63 above). The applicant stated that ‘P.T.’ knew the young person as he had done farming with her. He gave evidence about an incident when he held the phone up so that ‘P.T.’ could hear the young person screaming and yelling. It was this incident which the applicant stated caused ‘P.T.’ to request a report which became the 2 May 2015 e-mail. The applicant conceded that there was a delay in writing the report as he believed that management were already aware of the young persons ‘poor’ behaviour.

70. The applicant gave evidence that on Australia Day the young person had tried to assault him. A colleague ‘L’ was on duty and had intervened to stop the incident escalating. The applicant’s view was that the employer has a policy of there being ‘no wrong door’ and a client / child should be left to run freely, and behavioural intervention is a last resort.

71. Evidence was given about the disciplinary meeting, and that he was advised that based on the SMS his position was terminated ‘from that day’. The applicant gave evidence that he stated that he realised that his behaviour was ‘unethical’ but asked for a second chance. He was advised that there was no second chance, and that he was asked whether he took photos of young people. The applicant’s evidence was that he answered, ‘yes, for the purpose of showing you how he was misbehaving.’ The applicant admitted that he ‘made a silly joke about putting it (the photo(s)) on YouTube’. His evidence of the conversation at the meeting was that he stated ‘would you like me to show you the photos’, to which he was asked ‘are you going to delete the photos’?

72. When the applicant was asked in evidence about the taking of the photos he said that he pressed the button once but his phone takes a ‘suite of photos’. When asked about the young person’s behaviour when the photos were taken he said that the young person lay on the table, then he took a chair and lifted it up a couple of times. Then the young person put it down. He said that he stated to the young person that he would take a photo. In addition he stated that it was a concerning incident (the behaviour of the young person) but not the sort of incident where you would call the police.

73. The applicant gave evidence about the terms of the disciplinary / management meeting and the lack of a support person. He stated that he was contacted 2 hours prior to the proposed meeting and asked to attend. He was not specifically offered a support person.

74. In cross examination he gave evidence that the incident involving the young person with the chair and lying on the desk was at least a few days prior to the SMS message being sent. When questioned the applicant agreed that the assaults / phone breakage and incidents by the young person occurred prior to May 2015.The applicant was asked to confirm that he made no mention of these matters in his e-mail report of 2 May 2015, which he confirmed., including the lack of any reference to ‘sexualised behaviour’ by the young person.

75. The applicant advised that there was an incident in the office where the young person had asked the applicant to call him ‘sexy’. The applicant reiterated his earlier evidence that there was no ‘wrong door policy’ in respect of the clients and that this was because in the applicant’s view, the management needed more ‘kids at the refuge’. The applicant was specifically asked whether he reported the assaults, to which he answered ‘No’. He was asked whether he reported the assaults and the broken phone, to which he answered ‘No’. By way of explanation the applicant stated that he wasn’t sure what was normal in respect of the young person taunting and saying ‘sexy’ etc.

76. Initially in some responses the Tribunal notes that the applicant answered ‘no’ and that he ‘did not recall’. However later in his cross examination the applicant stated that he did not bring certain matters (concerning the young person and the photos / texts) up at the time as he was saving the information for the Tribunal.

77. The applicant was asked specifically about paragraph 26 of his affidavit whereby he refers to specific dealings with the applicant. The applicant was asked why in the original form of his affidavit (as sworn), he initially lied about the taking of photos. It was put to the applicant that he made the statement and attested it knowing that it was not true. In reply the applicant stated that he was scared and unfamiliar with the legal system. The Tribunal notes that when specifically asked further about this matter, following much deliberation by the applicant, he was unable to answer when he decided to amend his affidavit, in essence, why he had amended his evidence. Whilst the respondent tried to explore with a line of questioning focused on the applicant having read the affidavits of ‘J.H.’ and ‘P.T.’ from March 2016 (after his own affidavit was initially sworn), the applicant seemed unable to answer in any meaningful way.

65. The applicant advised that he had deleted the SMS messages from his employer’s mobile phone, but that to do so he had to have a colleague show him how to do this. When it was put to him about attending the disciplinary / management meeting he stated that he did not have any time to do anything, due to the fact that he was given two hours’ notice and not told what the meeting was about. The applicant denied showing ‘P.T.’ and ‘J.H.’ the photos on his phone and referred to a number of photos with a reference to a photo or photos from ‘in the shower’.

Evidence of Expert Witness

79. The expert gave evidence at the hearing by telephone. The expert advised that the applicant did not meet the criteria for assessing risk due to his lack of any conviction (including sex based matters). The expert qualified that when the first report was written he only had minimal material (interim and final; decision of the Children’s Guardian) before him. The supplementary report was written to address the further more detailed material provided.

80. The expert in evidence in chief stated that in his opinion, unguided judgments (such as the assessment of the respondent), which do not refer to the body of literature are problematic. In the experts view the respondent’s reports or assessments should be directed at real risk. Nothing in the further material changed the experts overall assessment of the applicant. The expert was unable to conclude that there was a real and appreciable risk.

81. In cross examination the expert was asked about the young persons sexualised behaviour and whether it indicated that he is at risk or potentially vulnerable, and asked about the text messages. In the expert’s opinion the text message content showed ‘very poor judgement’ but that in his opinion the applicant was clearly under duress and the young person was doing it (the behaviour) to ‘get a rise’ out of the applicant.

82. The expert conceded that a significant part of his conclusions to the risk assessment are based on accepting the applicant’s basis for the behaviour (by him). Usually when assessing risk the expert is looking at a pattern of behaviour.

83. The expert was asked about the applicant’s affidavit and the change of the evidence in the context of material leading to his assessment. The expert advised that he saw the changes that morning and it was put to him that the applicant had lied in the affidavit and whether that position creates an increased risk. The expert noted that there was no particular pattern, no other complaints etc, and for that reason it did not increase risk. It was stressed by the expert that these matters need to all be considered in the relevant context.

84. In the expert’s view, the applicant comes across as a socially awkward person. The change of evidence was not entirely irrelevant, however in the expert’s opinion it does not carry very much weight to the overall assessment of risk.

85. The expert stated at the conclusion of his evidence that the applicant was a person from another culture working in an isolated area with little supports. The matter (it was conceded) constituted a boundary violation. It was submitted that even two photos (at its highest) would not be enough to change or unhinge the assessment especially as in the expert’s opinion the matter was ‘non-sexual’.

Submissions

86. In written submissions the respondent submitted that the case should be considered in accordance with the provisions laid down in the case of BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523. (paragraph 18 of respondent’s submissions dated 18 March 2016.)

87. 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.

88. The respondent submitted that the evidence established that the applicant added inappropriate remarks (‘sexiest boy ever’), to a text message that he had been asked to forward by a colleague to the young person concerning collection from school arrangements. A further text was sent independently by the applicant stating ‘little pussy cat’ some minutes later. These texts formed the basis of the initial complaints.

89. The respondent submitted that the photos (to the extent observed by the witnesses at the meeting) were taken at different locations and dates within the Youth Refuge premises. The respondent also submitted that the evidence of the young person (within the section 58 documents) when applying for the AVO, was relevant, in that the young person had alleged that the applicant had touched him inappropriately, had been asked stop, and did not but continued to touch him several times. The Tribunal notes that this evidence was not able to be further tested at hearing.

90. The respondent submitted that whilst the applicant reported to the expert that the young person asked the applicant to refer to him as ‘sexy boy’ and how the behaviour and request made the applicant uncomfortable, why then did the applicant later send texts in the manner conceded.

91. Other texts referred to terms such as: ‘Oh, eh baby, come on!’ and ‘Little pussy cat’. The applicant did not suggest in his evidence that the idea for those messages came from the young person, unlike the term ‘sexy boy’.

92. There was an inconsistency in the applicant’s evidence and the basis for the changing of his evidence about taking photographs remained unclear at the conclusion of the hearing.

93. The applicant submitted that the contentious texts and comments were a joke. The applicant also submitted that the comments of the witnesses requesting on the one hand deletion of the phone photos and on the other seeking to give evidence as to their content, is contrary to provision of the Evidence Act. The Tribunal notes however that these proceedings for review are not strictly governed by the Evidence Act provisions.

94. The applicant also submitted that all of these incidents occurred over a fairly short period of time and there was no long term pattern. In addition submissions were made as to the validity of the experts report, and the notion of real and appreciable risk.

Further submissions after hearing

95. Further submissions were filed after the receipt of the further evidence following the hearing. The respondent addressed matters in the applicant’s submission and matters raised from the evidence. It was submitted that the evidence of the two witnesses who had made contemporaneous notes as to what had transpired, should be preferred over the evidence of the applicant.

96. At paragraph 16 of the submission dated 20 April 2016 the following is submitted:

16. Mr (CGO) went beyond a simple denial of taking an image in his affidavit. He deposed an elaborate account about his phone’s camera being previously damaged by the young person. Although he had attempted to take a photo of the young person, he wasn’t able to do so at the material time. He also annexed a receipt concerning his mobile phone being repaired in an attempt to corroborate his account about his phone’s cameras being damage [sic] .

17. Mr (CGO) also deposed in his affidavit that he offered to show those present the photos but “they simply would not look and the phone remained closed”, which is also inconsistent with the oral evidence he gave that he did access and delete those images (paragraph 28).

97. The respondent submitted that there were significant inconsistencies in the applicant’s evidence, but that in addition to the inappropriate behaviour, the applicant instructed his legal representatives to file his affidavit knowing that it contained false accounts. Submissions were made that contrary to the applicant’s assertions as to his lack of knowledge and experience, he was in reality a well-educated man.

98. It was submitted that the ‘false account’ given to the Tribunal about the images and the lack of candour concerning other images and instances, was a breach of the applicant’s obligations under section 27 (4) of the Act, to fully disclose to the Tribunal. These matters (it was submitted) remained unanswered by the applicant at the conclusion of his evidence.

99. The applicant in further submissions rebutted the respondent’s submissions about the giving of his evidence. It was submitted that based on the expert’s opinion the relevant behaviour was not sexually explicit but simply inappropriate.

100. Reference was made to paragraph 40 of the respondent’s submissions. The Tribunal understands that the reference means to refer to section 30 (1) (h), (j), and (k) of the Act.

Consideration

101. 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 detailed reasons.

102. 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.

103. The applicant was working as a youth worker in charge of vulnerable child clients when he took the photos and sent the text messages. We do not place any specific reliance on the more serious untested allegations of assault (or inappropriate touching). However the behaviour is serious due to the context in which it occurred.

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

104. The matters occurred approximately 10-11 months prior to the hearing. As such it is quite recent.

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

105. The applicant’s age at the time of the incidents was 37.

(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.

106. The complainant in the matter was sixteen years of age at the time. The victim was vulnerable because he was a child and the applicant was an adult and in authority over the young person. The applicant’s own evidence concerning the young person’s behaviours and homelessness antecedents further illustrates his vulnerability.

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

107. The difference in age was approximately 20-21 years. We note the matters referred to above in respect of Section 30 (1) d) concerning the relationship. In fact the nature of the relationship appears to be the substance of the matters ventilated between the parties in these proceedings.

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

108. The applicant clearly knew that the young person was a child, and this was not controversial between the parties.

(g) The person's present age.

109. The applicant was 39 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.

110. The applicant does not have a criminal record. There is no evidence before the Tribunal concerning any matters relating to the applicant’s conduct (re; risk or incidents) since the imposition of the Interim Bar on 1 July 2015.

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

111. The matters which caused the refusal are fairly recent. In that regard it is difficult to ascertain whether sufficient time has passed to allow the applicant to modify his behaviour in respect of any sustained findings. However we note that his expert recommends that the applicant is young enough to undertake training to assist him to deal appropriately with young persons.

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

112. The applicant provided evidence of character and qualifications as annexures to his affidavit. In addition he provided an expert report which went some way to explaining inappropriate behaviours, boundary setting and interacting professionally and effectively with young persons. Various cultural matters were submitted.

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

113. The respondent’s submissions went to risk, lack of boundary setting, aspects of minimising and blaming in the applicant’s behaviour and evidence, and touched on a lack of honesty, candour or not fully disclosing all relevant matters in accordance with his statutory obligation.

Consideration

114. 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).

115. Reference was made in submissions to the case of BKE [at 86], which in turn referred to the case of M v M [1988] HCA 68; 166 CLR 59. Significantly these cases focus on the task of the Tribunal and 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.

116. 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.

117. 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.

118. 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 ).

119. 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.

120. 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 (in our summary):

• the conduct of the applicant in his employment at the relevant time;

• the manner of the evidence given by the applicant in the proceedings.

Further Consideration and Findings

121. We make a finding of fact that the applicant took photos of the young person on his phone on a number of occasions within the confines of his then employment, and sent a number of text messages. Some of these matters were conceded by the applicant, and on the rest we find on the balance of probabilities, those matters are made out.

122. We have had particular regard to the references to the lack of applicability of the principles set out in Briginshaw as referred to in the case of Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 referred to at paragraph 25 (above) and BKE at paragraph 120 (above).

121. 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 suite of 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.

122. Even if there was an absence of a positive finding in respect of various allegations, the nature of the allegations may be indicative of a pattern of behaviour. Whilst the expert report has been carefully considered by us, having regard to the manner in which the applicant’s oral and written evidence was received at the hearing, we have concerns as to the applicant’s attempts to minimise all contentious aspects of his behaviour. This concern applies to both matters conceded and not conceded by the applicant.

123. In our view, as the finder of fact we disagree with the expert’s summary in the supplemental report that the behaviours ‘..would appear embedded in a background of possible cultural misunderstanding and social awkwardness on the part of Mr (CGO)’. We have had regard to the observations of the Court of Appeal in the case of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 in considering the conclusions of the expert in both of his reports. Even if the expert’s opinion (above) was a factual position, having regard to the protective nature of the jurisdiction, those matters (in themselves) could elevate risk of damage to a child or young person if they were to re-occur, irrespective of the background.

124. In the context of the matters canvassed in BKE, the current evidence and material does not 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.

125. 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. In respect of the potential of a positive finding, we note that this was a matter which was clearly contemplated especially once the matters arose concerning the issues with aspects of the applicant’s evidence.

126. In addition we observed that many of the applicant’s more cogent submissions and lines of inquiry at the hearing focused predominantly on aspects of his employment, concerning due process, fairness and notice, and duty of care owed to the applicant. Whilst these are potentially live issues in some other forum, and may well be relevantly based in fact, those matters do not in any way go to the essential issue of risk in respect of children and young persons in the context that we are required to address.

127. Finally the Tribunal was mindful of the fact that the further evidence needed to be considered after the formal hearing, and both parties were given the opportunity via submission and directions in April 2016 to reopen the matter.

128. 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.

129. In our view having regard to all of the material before the Tribunal, the applicant poses a risk to the safety of children, in that the risk is 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.

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

131. For the reasons set out above, we reach the following conclusion.

Conclusion

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

135. 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.

136. 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.

137. 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

02 September 2016 - Inserted 'if' in the last sentence of [125].

Decision last updated: 12 June 2018