CHY v Children's Guardian

[2016] NSWCATAD 136

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CHY v Children’s Guardian [2016] NSWCATAD 136
Hearing dates:	20 April 2016
Date of orders:	05 July 2016
Decision date:	05 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M O’Halloran, General Member
Decision:	(1) The decision of the respondent dated 8 December 2015 to refuse to grant the applicant a 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 – Risk Assessment – Whether applicant poses a risk to children – Real and appreciable risk – Weight of uncorroborated evidence- Whether evidence sufficient to make a positive finding –Significant weight of rebuttal evidence from witness.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998(Repealed) Civil and Administrative Tribunal Act 2013
Cases Cited:	Children and Young People v FZ [2011] NSWCA 111 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] NSWIRComm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BKE v Children’s Guardian [2015] NSWSC 523 M v M (1988) 166 CLR (HCA)
Category:	Principal judgment
Parties:	CHY (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: I Fraser (Respondent)   Solicitors: CHY (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1510777
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim of 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 "CHY". CHY is the applicant's pseudonym used in these proceedings.

2. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. In part on the basis of the applicant’s own evidence, but significantly on the basis of the evidence of a contemporaneous witness to / victim of the alleged behaviour to which the applicant was deemed a risk, the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons.

3. On 21 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 8 December 2015, the Children's Guardian made a decision to refuse to grant CHY a working with children check clearance. On 11 December 2015 the applicant CHY applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act.

Background

6. On 22 May 2015 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a clearance in order to resume his tutoring and teaching work.

7. During the period from May 2015 until December 2015 the respondent considered the applicant's application.

8. On 2 November 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 8 December 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 11 December 2015 the applicant lodged an application for administrative review before the Tribunal. The grounds of the application are detailed but in summary they address the primary concerns of the applicant. Those concerns being that the respondent placed too much reliance on the untested, incorrect, in part trivial and unreliable allegations concerning the conditions of the foster care which the applicant and his spouse provided to two young persons for many years.

11. Amongst those reports and records of observational matters as recorded by the relevant departmental officers, were some more serious allegations relating to neglect.

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 working with children legislative scheme

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

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

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

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

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

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

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

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

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

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

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

(2) ………...

(3) ………...

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

(5), (6) (Repealed)

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

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

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person's present age,

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

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

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

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

Burden of Proof

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

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

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

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

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

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

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

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

30. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal.

The Issue to be decided

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

The Hearing

32. The matter was heard on 20 April 2014. The applicant was self- represented and the respondent was represented by Counsel.

33. At the commencement of the hearing the Tribunal ruled on the admissibility of a number of summons issued in respect of having various persons attend and give evidence at the hearing. These witnesses were required at the request of the applicant. In addition there was an application by the applicant concerning an apparent conflict of interest between the respondent’s delegated decision maker and himself. The Tribunal dealt with these applications and declined to entertain both the summons and the conflict issue, and provided detailed oral reasons.

34. Only the applicant and one witness (L.J.) the applicant’s step daughter, gave evidence at the hearing. The respondent did not call any witnesses but relied on the section 58 material and other material that had been obtained prior to the hearing using the respondent’s powers under the Act.

35. Prior to summarising the evidence in our view it is necessary to explain the circumstances of the home life, which covers almost the entire period in issue. The applicant and his spouse took two children into foster care from the Department in the early to mid 1990’s. One child ‘A’ was a boy who was taken into foster care by the applicant at 11 months of age. The other child ‘L’ a girl was 2 years and 5 months of age when she came into the applicant’s home.

36. In 2001 both children were uplifted by the Department on the basis of allegations of neglect. The applicant re-obtained ‘A’ into his care as a result of a care Appeal in the then Administrative Decisions Tribunal (ADT) in 2002. The female ‘L’ was placed in alternate care in 2003. By this time ‘L’ was a young teenager. ‘A’ remained in the applicant’s care until 2006 where once again he was uplifted due to the Department ‘de-authorising’ the applicant and his spouse as carers.

37. The applicant commenced further proceedings in the ADT in 2007 and in August of that year ‘A’ was returned to their care. The legal proceedings were ultimately resolved through a mediation agreement in December 2007. ‘A’ turned 18 years of age in 2011. In the interim ‘L’ had ‘run away’ from her alternate placement from 2003 and had lived on the streets and returned regularly for short visits to the applicant’s home. It appears on the material before the Tribunal that for the last few years of her period in care ‘L’ was not subject to any official placements. Those matters do not concern the applicant.

38. Of significance is that ‘L’ (like many children in care) had various individual needs over and above that of the average child. That is not to say that she had special needs but behavioural management was of some concern during her period under Ministerial responsibility. ‘A’ on the other had had significant special needs and was diagnosed with autism and a number of serious medical conditions. The Tribunal notes that any assessment of the actions of carers must be considered in the terms of both the law and the conditions prevailing at the time of care.

Applicant’s Evidence.

39. The applicant gave detailed evidence about a large number of concerns and wide ranging matters concerning the 15 plus years that the children were jointly and separately in his care in his home. In evidence in chief he made the initial point that ‘L’s mother had apparently been a High School student that he had prior teaching contact with. Reliance was placed on ‘L’s mother having a poor or adverse view of the applicant (based on something arising from her schooling) and that this was the reason that she both resented the applicant and was somewhat put out by the fact that he and his spouse had care and custody of her daughter ‘L’.

40. In evidence in chief the applicant also gave evidence that rather than he and his spouse being non-compliant with certain requirements of the Department during their foster care period, that the Department was non-compliant on a number of administrative issues and neither paid in a timely manner or in some instances failed to reimburse at all, for monies which the Department was liable to the Carers.

41. The applicant spoke at length in his evidence about his lifelong poor relationship with the Department.

42. In cross examination the respondent took the applicant to specific allegations. These concerned the condition of the living area, the hygiene of the home and subsequent appearance / cleanliness of the children, as well as matters relating to dental care, and a specific allegation concerning ‘A’.

43. The applicant denied that any of these issues amounted to neglect and noted that notwithstanding that some of these matters were ‘sustained’ at Departmental level, none of the matters resulted in proceedings to prosecute under the Care Act.

44. Allegations about excessive alcohol consumption and allowing the children to ingest beer were put to the applicant. The applicant’s evidence was that the allegations were an exaggeration and embellishment of the facts at the time, and nothing inappropriate or in any way improper occurred.

45. Other allegations appear to have arisen from an examination of police and other material. That material indicates that rather than the applicant ‘stalking’ ‘L’ after she was uplifted from his care, the evidence was that he happened to observe ‘L’ and other adolescent females vandalising a bus stop, and his own report produced this evidence.

46. Further allegations were put to the applicant concerning affectionate behaviour between the applicant and 'L' in September 2004. The applicant stated that these matters only amounted to a 'parental embrace'.

47. The applicant stated that the remainder of the allegations as summarised in the respondent’s material were false. In respect of a sustained finding by the NSW Ombudsman the applicant stated that he had only been made aware of this as a result of the service of material upon him by the respondent in these proceedings.

48. The applicant stated that in the period following ‘L’s uplift there was only one occasion whereby the Department advised him of concern, being when ‘L’ was taken to hospital and asked for the applicant to be called.

39. The Tribunal asked a number of questions of the applicant, about the home life and managing two challenging children with specific needs. The applicant advised that up until the first uplift in 2002 it was a fairly normal family and a fairly normal relationship.

40. The applicant advised that when she was 13 or 14 the applicant became aware that ‘L’ was not attending school and he became quite emotional about that. His evidence was that from time to time he was called upon by ‘L’ and that he was quite content and happy with that arrangement and that she relied on him as no one else cared or was reliable. The applicant expressed feelings that he was happy and that ‘L’ was thankful about the assistance.

41. In evidence he indicated that ‘L’ had become pregnant at 15 years of age, and at the time (or subsequent) was not in any formal placement.

Evidence of Witness ‘L’

52. ‘L’ gave evidence on the applicant’s behalf over the telephone at the hearing. The applicant asked ‘L’ whether she had ever suffered emotional abuse from the applicant. The witness answered ‘no’. She added that she could never call anyone else in her life her dad, and that the applicant is such a good dad.

53. In cross examination ‘L’ was asked how she would describe her relationship with her ‘dad’. The witness answered that she had / has a very good relationship with him.

54. In further questioning the witness was asked how she would describe her relationship with the applicant at that time in respect of the allegations about the hugs and embraces after she was uplifted from the placement as a teenager. The witness answered that: ‘If you were taken away from your parents – wouldn’t you hug him for as long as you can.’ ‘My dad wasn’t very affectionate, I was the affectionate one.’

55. Later the witness was asked to describe the closeness of her relationship with the applicant. The witness advised that her relationship was closer with Mr ‘CHY’ than with any other placement parent or person in her childhood. In addition ‘L’s evidence indicated that all contacts with the applicant since uplift and currently, were initiated by her. She gave evidence that: she ‘always knew that the one person who was there for me and was always there for me was my dad.’

56. The witness denied any of the adverse allegations about alcohol and does not remember stating certain things in Departmental interviews. In response to these questions the witness stated the following: ‘To be honest, I used to lie a lot when I was a child. My biological mother used to tell us things to say.’

57. In respect of the series of allegations about her brother ‘A’, the witness stated that they were not true. The witness was asked directly whether she had any concerns that her relationship with her father was inappropriate, to which she answered ‘No’. She was further asked whether in her view any aspect was inappropriate even in her teenage years to which she answered ‘No’.

58. Finally in respect of the allegations concerning poor hygiene and the habitat in the home, the witness answered that it was hard for her parents to manage – it was not unhygienic, just messy.

Written Evidence

59. The applicant filed six affidavits in the proceedings. In our view for reasons which will become apparent, it is unnecessary to detail their contents in these reasons. As indicated earlier the respondent filed substantial volumes of material under both section 58 of the ADR Act and material obtained since the commencement of these proceedings.

60. At the conclusion of the evidence the Tribunal adjourned briefly so that the respondent’s representatives could take instructions. The respondent subsequently advised the Tribunal that its position at the conclusion of the evidence had changed, and that it no longer opposes the application.

Section 30 (1) considerations

61. (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.

62. The applicant's application to the Tribunal is brought about by an adverse risk assessment of him by the respondent. Those matters encompass the matters whereby the applicant was accused of neglect type matters in circumstances of a care placement. The allegations were sustained in part at Departmental and child protection administration level. Other than the seriousness allegations (in that they related to children), they are less serious than most matters which identify possible risk. This observation is made having had particular regard to the circumstances of the care placement.

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

63. The matters referred to in the risk assessment are alleged to have occurred in the period 1994- 2005.

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

64. The applicant was approximately between 42 and 53 years of age when the matters relevant to section 30 (1) (a) are alleged.

(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.

65. The victims were approximately 3 - 15 years old at the time of the alleged conduct against them.

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

66. The difference in age was approximately 35-40 years between the applicant and the two alleged victims. The evidence indicates that the alleged victims were under Ministerial Responsibility / care and the applicant was their carer.

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

67. The applicant was aware that both of the complainants were children.

(g) The person's present age.

68. At the time of the hearing the applicant was 59 years of age.

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

70. The applicant does not have a criminal record. No relevant matters have come to light between the allegations and the application for a clearance.

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

71. The Tribunal noted that the male child ‘A’ (who is now an adult) continues to reside in the applicant’s home. There no evidence of any matters coming to attention in the intervening period.

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

72. The applicant tendered an affidavit from Witness 2 in addition to her oral evidence at hearing. In addition to the other material relied upon by the applicant, the evidence of witness ‘L’ is (in our view) of significant weight.

73. The applicant provided six affidavits in the proceedings and was subjected to lengthy cross-examination.

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

74. The respondent raised a number of issues in written submissions, however at the conclusion of the evidence the respondent advised that the position is not to oppose the applicant’s application for a clearance.

Consideration

75. In our view the applicant was consistent in his answers. The applicant's overall denials of the conduct were borne out in the main by the evidence of Witness 1 ‘L’.

76. The evidence of the witness, was cogent and clear, and in our view compelling. Her evidence was consistent but also illuminating as to the circumstances of the household and related matters.

77. We note that whilst uplift proceedings occurred, and some sustained findings took place, no other official or police action arose from these allegations and that there is no evidence of any pattern of behaviour on the evidence and material now before the Tribunal at the conclusion of the evidence.

78. In our view, there was no evidence that the applicant was untruthful or deliberately evasive in his answers, and in that regard (in addition to the six affidavits) has (in our view) satisfied the requirement of section 27 (4) of the Act.

79. We have had regard to all of the evidence and submissions in these proceedings, even if we do not refer to all of that information specifically in these reasons.

80. In our view, on the evidence and material before us, the applicant does not currently pose a real and appreciable risk to the safety of children and young persons. In our view the risk is neither real, nor appreciable, and neither is there sufficient evidence before us to the requisite standard that there is any real likelihood of future risk.

Conclusion

81. For the reasons set out above, and specifically having regard to the evidence of witness 1, (‘L’), we reach the following conclusion.

82. The evidence and material referred to in these reasons does not establish that the applicant currently poses a real and appreciable risk to the safety of children.

83. The evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant poses a risk to the safety and wellbeing of children.

84. We 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.

85. In our view having regard to all of the material before the Tribunal, to the requisite standard the applicant does not pose a risk to the safety of children.

86. It therefore follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children's Guardian.

Orders

1. The decision of the Children's Guardian dated 8 December 2015 to refuse to grant the applicant a 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: 05 July 2016