CHQ v Children's Guardian

[2016] NSWCATAD 185

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CHQ v Children’s Guardian [2016] NSWCATAD 185
Hearing dates:	31 March 2016
Date of orders:	19 August 2016
Decision date:	19 August 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Organ, Senior Member E Hayes, General Member
Decision:	(1) The decision of the Children’s Guardian made 23 November 2015 to refuse the Applicant’s Working with Children Check clearance is set aside.  (2) In substitution for that decision, the following decision is made: The Applicant is granted a Working with Children Check clearance
Catchwords:	Child Protection-working with children check clearance-application for administrative review-correct and preferable decision-whether Applicant poses a risk to the safety of children- Children’s Guardian decision set aside-working with children check clearance granted.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Child Protection (Working with Children) Act 2012(NSW) Evidence Act 1995 (NSW)
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Commission for Children and Young People v V [2002] NSWSC 949 Commission for Children and Young People v FZ [2011] NSWCATAD 69 Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303 Holbrook and Australian Postal Commission (1983) 5 ALN N46 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; BJB No. 2 M v M [1988] HCA 68 YG and GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CHQ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: Pope & Spinks Solicitors (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510765
Publication restriction:	Pursuant to s.64 (1) (a) of the Civil and Administrative Tribunal Act 2013, 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

Background

1. CHQ (the Applicant), seeks review of the decision of the Respondent (the Children’s Guardian), to refuse her application for a Working with Children Check (WWCC) clearance, under the Child Protection (Working with Children) Act 2012 (“the Act”).

2. The Applicant is a 59 year old woman who has been the carer of her two grandchildren H and O (the “grandchildren”), aged 12 and 11, for a large part of their lives.

3. The Applicant requires a WWCC clearance because she is seeking a care order in respect of her grandchildren in the Children’s Court. A Care Plan has been prepared by the Department of Family and Community Services (FACS) in respect of the Applicant’s grandchildren which provides for the Applicant to have the day to day care of her grandchildren. The Children’s Court has previously found that there is no reasonable prospect of the grandchildren being returned to their parent’s care.

4. On 23 April 2015, the Applicant applied to the Office of the Children’s Guardian (the Respondent) for a WWCC clearance.

5. The Respondent conducted a risk assessment of the Applicant and, on 23 November 2015, determined to refuse the application.

6. On 8 December 2015, the Applicant lodged an application for review of the Respondent’s decision.

The Statutory Scheme

The Child Protection (Working with Children) Act

7. The objects of the Act are as follows:

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.

8. Section 4 of the Act provides that the paramount consideration in the operation of the Act is the “safety, welfare and well-being of children and, in particular, protecting them from child abuse.”

9. The Act prohibits a person from engaging in “child-related work” unless (a) the person holds the relevant WWCC clearance, or (b) there is a current application, by the person, to the Respondent for the relevant WWCC clearance: s 8(1). Contravention of this prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.

10. Section 18 sets out how the Respondent is to determine an application for a clearance. Where the person seeking a clearance has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in Schedule 2 of the Act, or where that person has been charged with such an offence and the proceedings in regard thereto are pending, subsection 18(1) provides that this person is a “disqualified person” and the Respondent must refuse that person’s application for a clearance. In this case, the Applicant is not a “disqualified person” and the subsection does not apply to her.

11. Subsections 18(2) and (3) apply to all other applications. These subsections provide:

1. Determination of applications for clearances

   (1)    …

   (2)    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.

   (3)    The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

   12. A person is subject to an “assessment requirement” if any of the matters specified in Schedule 1 of the Act apply. This includes circumstances where the person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children.

   13. According to the Respondent’s records, the matter which triggered a risk assessment of the Applicant were charges of producing child abuse material in March 2015. These charges were dismissed by a Local Court Magistrate as he was of the opinion that the images produced fell short of the definition of child abuse material within the meaning of the Crimes Act.

   14. In making an assessment, the Respondent may consider the following factors set out in section 15(4) of the Act:

   1. the seriousness of any matters that caused the assessment in relation to the person,

   2. the period of time since those matters occurred and the conduct of the person since they occurred,

   3. the age of the person at the time the matters occurred,

   4. the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim,

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

   6. whether the person knew, or could reasonably have known, that the victim was a child,

   7. the person’s present age,

   8. the seriousness of the person’s total criminal record and the conduct of the person since the matters occurred,

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

   10. any information given in, or in relation to, the application,

   11. any other matters that the Children’s Guardian considers necessary.

Role of the Tribunal

15. Section 27 of the Act makes provision for administrative review by the Tribunal of a number of decisions of the Respondent, including a decision to refuse a WWCC clearance. That 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.

16. Having jurisdiction to review the decision of the Respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Respondent: Administrative Decisions Review Act 1997, s 63.

17. That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].

18. 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]

19. The guiding principle to be applied to practice and procedure in the Tribunal “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” consistent with the objects and principles under the Act: Civil and Administrative Tribunal Act 2013, s 36.

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

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

22. In BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 (BKE) at [29], Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 set out at p 362 per Dixon J, in making a positive finding that an Applicant had sexually abused a child in circumstances where the Applicant had not been convicted of doing so.

23. At [30], His Honour said “significant guidance as to the approach to be adopted” in such cases could be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal’s fact finding task as follows:

“33 … [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.”

Administrative Decisions Review Act 1997

24. Pursuant to section 63 of the Administrative Decisions Review Act 1997, the Tribunal has power to make the following orders:

1. to affirm the decision of the Respondent, or

2. to vary the decision, or

3. to set aside the decision and make a decision in substitution for the decision it set aside, or

4. to set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal.

25. At any stage of proceedings, the Tribunal may remit the decision to the Respondent for reconsideration: Administrative Decisions Review Act 1997, s 65.

Child Protection (Working with Children) Act 2012

26. Subsection 30 (1) of the Act sets out the factors the Tribunal must consider in determining a review application under section 27 of the Act. (These replicate the factors set out in s15(4) to which the Respondent may have regard when conducting its risk assessment) :

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.

27. The meaning of the word “risk” was considered by his Honour Young CJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word “risk” as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

‘What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children".’

28. These remarks have been accepted to equally apply to the word “risk” as it appears in the 2012 Act: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [39] and BKE, at [26].

29. In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an Applicant seeks a clearance and whether he/she poses a “risk to the safety of children” in those circumstances. Instead, an Applicant is “subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area.”

Burden of proof

30. 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].

31. Although the Applicant has no legal burden she does have a practical or forensic onus: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53, and the Tribunal has to consider all of the evidence adduced by the parties in light of, and under, the mandated considerations contained in section 30 of the Act. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.

32. Where a matter requires proof it should be proved to the civil standard, on the balance of probabilities: Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; BJB No. 2 at [32].

33. However, the ultimate issue is not whether a particular allegation has been proved or not proved. This is subservient and ancillary to the ultimate issue: whether in all the circumstances the Applicant poses a real and appreciable risk to the safety of children.

34. 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.

35. The Applicant has a duty to disclose all relevant material pursuant to section 27(4) of the Act.

Evidence before the Tribunal

36. The Applicant relied upon the documents she provided to the Respondent (as part of the assessment process) as well as the following documents:

1. Affidavit of CHQ sworn 29 February 2016;

2. Report of Dr Charles Chan, Psychiatrist, dated 23 February 2016; and

37. The Respondent relied upon the following documents:

1. Bundle of documents filed pursuant to section 58 of the Administrative Decisions Review Act on 13 November 2015.

38. The Applicant and Dr Chan gave oral evidence at the hearing and were cross-examined by Counsel for the Respondent.

39. The evidence is now considered under each of the subheadings of sections 15(4) and 30(1) of the Act.

(a) Seriousness of any matters that caused the refusal of the Applicant’s application for a clearance

40. The matters that caused the refusal of the Applicant’s application for a clearance were two criminal charges brought against her in 2014. The Applicant was charged with two counts under s.91H (2) of the Crimes Act 1900 of producing child abuse material. The first count was that on 9 June 2012 she did produce child abuse material (the first count) and the second count was on 18 August that she did produce child abuse material (the second count). There can be no argument that the offences for which the applicant was charged involving child abuse material are inherently serious. This is indicated not only by community disapprobation but also by the legislature’s imposition of a maximum penalty of 10 years imprisonment for the production of such material.

41. However, at a hearing in the Local Court on 9 March 2015 before Local Court Magistrate Buscombe, the Magistrate found there was no case to answer and both charges were dismissed.

42. A copy of the transcript of evidence at the hearing in the Local Court was in evidence before the Tribunal. The images which formed the basis of the prosecution were not in evidence before the Tribunal. At the hearing in the Local Court, the Magistrate describes the images which formed the basis of the charges against the Applicant.

43. At page 41, line 15 onwards of the transcript the Magistrate describes the image of the Applicant’s granddaughter O which formed the basis of the first count against the Applicant. That description is as follows:

The photograph is of the accused's granddaughter. She has essentially her back to the camera. It is a photograph which is taken inside a room which looks to be normally set up. There is nothing unusual. It looks to be some type of dining room with flowers in a vase on the dining table in the child is in the foreground of the picture. She has one arm on her hip and she appears to be sucking her finger or, perhaps, it could even be nibbling on it. Her face is turned to the side. One can only see one side of her face. She is not looking at the camera. Therefore, she's not looking in my view in any sort of provocative way. She has, it appears, where one arm is on her hip, the rear portion of her top has been pulled up and exposes the whole of her left buttock and most of her right buttock .… There is nothing about the image, to my mind, to suggest it depicts a deliberately struck attitude that draws attention to the sexual aspects of the child’s identity or personality.

44. The Magistrate found that the image did not depict a child in a sexual pose. Further, the Magistrate found that if he was wrong in this regard and that it was capable of being seen as depicting a child in a sexual pose, he was of the view that the image was not capable of being construed as offensive as defined in the Crimes Act.

45. In respect of the video which formed the basis of the second count, this was a video of the applicant’s grandson H. The Magistrate at page 42 of the transcript, line 20 onwards, describes the video as follows:

The video of the male child depicts him dancing frenetically and naked. You can, on occasion, see his penis. At times he is face on to the camera; at other times he turns his back and slaps himself on the backside or buttocks. The video is of fairly short duration. It is true that on occasions when he is facing the camera and he continues to dance he moves his pelvic area in and out and grabs near where his penis is and on occasions you can see his penis. At the end of the video, a female child, the inference being his sister, comes into view, bumps into him and they move to one side and laugh. The female child is fully clothed when that happens. I have watched the video twice. It appears to me to have all the hallmarks of a child simply dancing innocently and having fun. There is nothing to suggest he exposes his penis at anyone’s urging or direction. In my view, he is not depicted in any way in a sexual pose, as I have defined that phrase, although it clearly does depict his private part, his penis.

46. The Magistrate went on to find that the video image was not capable of being seen to be offensive and certainly not capable of reaching that level of offensiveness, being significant offensiveness or significantly offensive, required by the s.91H (2) of the Crimes Act.

47. The Applicant, in her oral evidence to the Tribunal provided an account of the circumstances in which the images that formed the basis of the criminal prosecution in 2015 were created in 2012. She said the video image of H had been taken after they had returned home from an outing to the beach. She said H had a shower and when he came out, the radio was on and it was playing a Michael Jackson song which was one of H’s favourites. H started to dance to the song and on the spur of the moment she took a video of him dancing.

48. The image of O was taken when O was practising a dance routine she had learned at her dancing class. The Applicant said that O was wearing underpants at the time although her buttocks were exposed because the pose she was adopting involved raising her dress.

49. The Applicant’s responses to questions by Counsel for the Respondent were given in a forthright manner. It was put to her that she had acknowledged to FACS when interviewed as part of their assessment process that she now thought that the images she took were inappropriate. The Applicant maintained that she did not think they were inappropriate and that they had been taken innocently and spontaneously. She said she does realise now that that some other people would think they were inappropriate. The Applicant maintains that she did not post the images on social media or anywhere else on the internet, or show them to anyone. The images came to light as a result of the mother of H and O seeing them on the Applicant’s phone.

50. The Applicant’s evidence before the Tribunal was consistent with her affidavit evidence and the accounts of her responses to FACS staff set out in the risk assessment report.

51. There was no evidence before the Tribunal that the Applicant showed the images to anyone else or intended to do so. The applicant’s evidence to the Tribunal was that she had not showed the images to anyone and had forgotten about them after she took them.

(b) The period of time since the matter occurred and the conduct of the Applicant since that time

52. The matters occurred in 2012. Since then the Applicant has had no known criminal offences and there is no evidence before the Tribunal of any conduct which could be considered ‘adverse’ to the Applicant since the matters which occurred in 2012.

53. The Applicant has been heavily involved in the care of her son’s two children H and O since the relationship between the children’s parents broke down in around 2006. From 2011 until 2014 the Applicant assisted her son with the day to day care of H and O and resided in the unit where they lived with their father. The Applicant’s son and the mother of the children are now unable to care for the children and the Applicant has sought an order in the Children’s Court for a care order in respect of the children.

54. After the Applicant was charged with the offences described earlier in these reasons, she was excluded from contact with the children until those charges were dismissed. H and O now live with the applicant’s mother and the Applicant is allowed to visit them which she does on a regular basis.

55. As part of the risk assessment process, references were provided to the Respondent by the Applicant. Each of these referees write positively about the Applicant’s character. These references are discussed in more detail below.

(c) The age of the Applicant at the time the matters occurred

56. The Applicant was 54 years old when the matters occurred

(d) The age of the victim of the conduct at the time it occurred and any matters relating to vulnerability of the victim

57. H and O were aged seven and eight at the time of the conduct which formed the basis of the criminal prosecution of the Applicant. They were vulnerable in their relationship with the Applicant because of her greater age, experience and maturity, and also because of her position and authority as their grandmother. The children were also vulnerable as a result of an extensive child protection history dating from approximately 2006 arising from concerns about drug use and mental health issues of their parents.

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

58. The Applicant is approximately 47 and 48 years older than the children H and O who were born in 2003 and 2004 respectively.

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

59. The Applicant was the grandmother of the children and by virtue of her relationship with them was aware of their ages.

(g) The Applicant’s present age

60. At the time of the Tribunal hearing, the Applicant was 59 years of age.

(h) The seriousness of the Applicant’s total criminal record and the conduct of the Applicant since the matter occurred

61. The Applicant has no criminal convictions. There is no evidence before the Tribunal of any conduct which could be considered ‘adverse’ to the Applicant since the relevant events in 2012.

62. A further video, that did not form part of the criminal prosecution against the Applicant, was produced to the Police. The video was subsequently destroyed by the Police but as the video was apparently produced by a child under 10 there were no criminal charges brought in respect of the video. The description in evidence before the Tribunal of the video, was that it showed the Applicant’s granddaughter O, who was at the time eight years old, sitting in the back of a car with her legs apart and her vagina exposed. The Applicant is heard to say on the video “You’re a bad girl” and the girl replies “Yeah I’m a bad girl.” The Applicant’s evidence is that this video was taken by O on her ipod and the applicant was not aware that she had taken the video.

63. A second photo of O was taken to the Police by the children’s mother at the time she showed the Police the video of H and the photo of O which were the subject of the first and second counts against the applicant in the 2014 criminal prosecution. This photo is described as showing O topless with some sort of white paint on her nipples and elsewhere.

64. In evidence was a report and summary recommendation from FACS which formed part of a Relative and Kinship Carer Assessment Report commenced 6 May 2015 which was prepared by FACS in relation to the Applicant. Concerns were expressed to the Applicant by members of the assessment team about the Applicant taking the subject images of H and O. The Applicant stated in response that she could now see that other people found the images inappropriate and that she would not take these sort of images again. She told the FACS workers that she now understands that it is inappropriate to take these sort of images because even though the court found the images were innocent, they could end up in the hands of inappropriate people. The Applicant reiterated to FACS that she would not repeat this conduct as “the whole thing has destroyed her family and she would never put herself or the children in a similar position again stating she would be complete nuts and a moron contemplating taking another shot of a similar nature again.”

65. Further details of the Applicant’s conduct since 2012 are detailed in earlier paragraphs.

(i) The likelihood of any repetition by the Applicant of the conduct and the impact on children of any such repetition

66. In regard to the likelihood of any repetition of engaging in similar conduct in the future, the Applicant relied on the written report dated 23 February 2016 and the oral evidence of Dr Charles Chan, Psychiatrist. As part of his assessment, Dr Chan was provided with the transcript of the criminal prosecution against the Applicant in the Local Court, the Applicant’s affidavit and a letter of instruction from the Applicant’s Solicitors.

67. In his report, Dr Chan details the Applicant’s background and her involvement in her grandchildren’s care. He describes how the Applicant has been treated with an anti-depressant since her son had his first psychotic episode some years ago. He says the Applicant’s presentation is consistent with a diagnosis of recurrent depressive episodes. He says that he could not elicit any specific risk factors that significantly increases the risk of child abuse to her grandchildren or other children. Dr Chan notes that no paraphilia was elicited. He says the Applicant’s depressive episodes have been controlled with her treatment.

68. In his oral evidence Dr Chan, in cross-examination, confirmed that he did not prepare an actuarial risk assessment of the Applicant. He also confirmed that he had not seen the image or video that was the subject of the criminal prosecution of the Applicant. The Tribunal notes however that Dr Chan did have available to him the detailed description of the images by the Magistrate in the Local Court transcript.

69. The Respondent suggested that Dr Chan’s report should be given limited weight as he was not provided with all of the material in evidence before the Tribunal. Further the Respondent says Dr Chan did not examine the Applicant’s insight into the conduct which formed the basis of the criminal prosecution against her. The Respondent says that the report should be categorised as a mental health assessment rather than a risk assessment.

70. The Tribunal found Dr Chan’s written report and his oral evidence to be balanced, professional and persuasive. The Tribunal accepts his assessment of the Applicant elicited no specific risk factors that significantly increases the risk of child abuse to her grandchildren or other children. The Tribunal also took into account that Dr Chan’s opinions were not contradicted by any other expert evidence.

71. It is conceded by the Respondent that the images in question were not at the most serious end of the child abuse spectrum. There is no question that the production of images such as the ones in this matter could, if disseminated, place the children in the images at risk of emotional harm, or present an opportunity for the sexual exploitation of minors.

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

72. The Applicant seeks a clearance solely to enable her to resume the care of her grandchildren who were living with her previous to the criminal charges in 2014. That she does not intend to seek employment in child-related employment is largely irrelevant to the assessment of risk.

73. The Applicant provided a number of character references to the Respondent in support of her application for the WWCC. These included a reference from the Human Resource Director of the company at which the Applicant had been employed for approximately 25 years at the time of her application for the WWCC. This reference speaks highly of the Applicant in terms of her employment record and describes her as reliable and honest. However, the author does not state that she is aware of the criminal charges against the Applicant or of the images of H and O which were the subject of the criminal charges.

74. The Applicant also provided to the Respondent a copy of a letter from an individual who has known the Applicant since 2006. It appears that the letter was written in support of the Applicant’s application for a care order in the Children’s Court. Although the reference does not expressly state the author is aware of the criminal charges that were brought against the Applicant, it makes reference to the Applicant being separated from H and O since July 2014 and having her character and integrity called into question. The author speaks highly of the Applicant’s involvement in the lives of H and O and the support she provides to them. The author states that she would have no hesitation in entrusting the care of her own children to the Applicant.

75. An e-mail from the maternal grandfather of H and O, who is a senior Solicitor, written in support of the Applicant’s application to be accepted as an approved carer for H and O, was in evidence. He says he has known the Applicant for approximately 12 years since his daughter commenced a relationship with the Applicant’s son. He speaks of the Applicant’s involvement with his grandchildren in very positive terms and describes the Applicant as prioritising the needs of H and O in the aftermath of the breakdown in their parent’s relationship. He states that he is aware of the images of H and O found on the Applicant’s phone and says that although he thought this was inappropriate, he did not think they were criminal. He says he accepts the Applicant’s undertaking that such activity would not occur again. He concludes by stating that he considers that the Applicant should be the carer for H and O and that the Applicant “…should be allowed to return to being an integral part of their life.” The Tribunal afforded considerable weight to the views expressed in this e-mail noting that the author has known the Applicant for approximately twelve years, is aware of the images taken by her of his grandchildren and holds her and her involvement with the care of H and O, in high regard.

76. At the hearing, the Applicant told the Tribunal she was now retired. She is able to visit her grandchildren H and O regularly although she said that it has been difficult and stressful on both them and her since they have not been able to live with her. As stated earlier in these reasons the Applicant seeks the WWCC clearance so that she can resume the care of H and O.

77. FACS support the Applicant being approved as a long term kinship carer. The assessment report prepared by FACS states that the concerns about the Applicant taking photographs of H and O have been addressed and the Applicant has stated that she can see that other people found the images inappropriate.

78. The Solicitor for the Applicant submits that the Applicant does not pose a risk to the safety of children and the Respondent’s decision should be set aside. He said the Tribunal should accept that the Applicant gave evidence in a frank and forthright manner to the Tribunal and has complied with her duty to disclose all relevant matters to the Respondent in respect of her application for a WWCC clearance. He said the report of Dr Chan is supportive of the Applicant and although Dr Chan did not perform an actuarial assessment of risk, the Tribunal should have regard to the fact that the Applicant has never been convicted of any criminal offence.

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

79. The Respondent opposes the application. The Respondent questions the Applicant’s insight into her actions noting that in an affidavit she swore in the Children’s Court proceedings, she refers to the police prosecution of her as a “grave error of judgment on the part of the police.” It is relevant to note that the Magistrate in the criminal proceedings against the Applicant found that as a matter of law, the agreed facts could not constitute the offence, and that in his view, the proceedings were initiated without reasonable cause. He found that the Applicant was therefore entitled to a costs order against the Police. It is possible that the Applicant’s attitude towards the Police prosecution was based, at least in part, on the finding by the Magistrate that she was entitled to a costs order as the proceedings had been instituted without reasonable cause. Further, on the available evidence, the Tribunal is satisfied that the Applicant does have insight into her conduct, that she understands that the images she took of her grandchildren would be regarded as inappropriate by some people and that she is highly unlikely to produce such images again.

Conclusion

80. In this matter, the role of the Tribunal is to review the decision of the Children’s Guardian to refuse the Applicant a WWCC clearance, and to decide what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable law.

81. The applicable law includes the Child Protection (Working with Children) Act, which provides that the safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration. Importantly, the jurisdiction of the Tribunal is protective and not punitive in nature. In this matter, the Tribunal is tasked with determining whether, on the balance of probabilities, the Applicant poses a risk to the safety of children.

82. Relevantly, a WWCC clearance must be granted to the Applicant unless the Tribunal is satisfied that the Applicant poses a risk to the safety of children. It has previously been held by this Tribunal that no conditions may be placed on the issue of a WWCC clearance.

83. The Applicant now accepts that the images in question may be viewed by some people as being inappropriate or at the very least in questionable taste. The Tribunal accepts that this experience has had a significant impact on the way that the Applicant has behaved since the relevant events and the way she intends to behave in the future. The Tribunal accepts that as a consequence of reflection the Applicant has developed insight into why the taking of these sort of images involves an opportunity for the sexual exploitation of children or promoting sexual behaviour in minors. It is likely that being charged and prosecuted was a very humiliating experience for the Applicant and, one would expect, if such a personal deterrent were needed, that the experience would operate very powerfully as one. The Tribunal was satisfied that it was highly unlikely that the Applicant will ever take similar images again.

84. The Tribunal is also satisfied that the Applicant now has real insight into her actions in taking the images in question and sincerely regrets her actions. The Tribunal accepts that she has learned from her actions at considerable personal cost.

85. The Tribunal is not comfortably satisfied that the circumstances surrounding the taking of the images which formed the basis of the criminal prosecution of the Applicant in 2014, the photo of O with paint on her body and the video image of O taken in the back of the Applicant’s car, could be said to give rise to a real and appreciable risk to the safety of children.

80. In addition, there is an absence of any evidence of other conduct on the part of the Applicant which would give rise to a real and appreciable risk to the safety of children.

81. The Tribunal has considered all of the matters in s.30 (1) of the Child Protection (Working with Children) Act. The available evidence establishes on the balance of probabilities that there is no real and appreciable risk of harm to children posed by the Applicant. The Tribunal is satisfied the Applicant does not pose a real or appreciable risk to children, and the correct and preferable decision is to grant the Applicant a WWCC clearance.

ORDERS

88. Accordingly, the Orders of the Tribunal are as follows:

1. The decision of the Children’s Guardian dated 23 November 2015 to refuse the Applicant’s Working with Children Check clearance is set aside.

2. In substitution for that decision, the following decision is made: The Applicant is granted a Working with Children Check clearance.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 19 August 2016