CJD v Children's Guardian

[2016] NSWCATAD 243

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CJD v Children’s Guardian [2016] NSWCATAD 243
Hearing dates:	27 May 2016
Date of orders:	31 October 2016
Decision date:	31 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M Bolt, General Member
Decision:	(1) The decision of the Children’s Guardian dated 20 November 2015 to refuse to grant the applicant a Working with Children check clearance is affirmed. (2) The application for review of the decision of the Children’s Guardian filed 14 December 2015 is otherwise refused and dismissed.
Catchwords:	CHILD protection – Working with children- Absence of positive finding – Existence of risk – Real and appreciable risk – Similarity of allegations – Pattern of allegations
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 Act 1900 Crimes Sentencing Procedure Act 1999
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 CGA v Children’s Guardian [2016] NSWCATAD 241
Category:	Principal judgment
Parties:	CJD (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: CJD (Applicant in person) Crown Solicitors Office (Respondent)
File Number(s):	1510791
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

1. The Applicant in these proceedings is referred to as "CJD". CJD is the applicant's pseudonym used in these proceedings. Having considered all of the evidence and material both filed and presented at hearing, and the provisions of section 30 (1) of the Child Protection (Working with Children) Act 2012, the Tribunal finds that the applicant does pose a risk to the safety and well-being of children, a risk that is a real and appreciable risk to the safety and well-being of children and young persons.

2. On 14 December 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 20 November 2015, the Children's Guardian made a decision to refuse to grant CJD a working with children check clearance. On 14 December 2015 the applicant CJD 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 12 December 2013 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a clearance in order to continue the type of work that he has performed at various times during his career and for personal reasons.

7. During the period from December 2013 until October 2015 the respondent considered the applicant's application. In July 2015 the respondent having identified various matters in the applicant’s record imposed an Interim Bar having identified matters within the applicant’s history / record. The Interim Bar was issued pursuant to section 17 of the Act. 9. As a result of the Interim Bar the applicant was prevented from engaging in child related employment until such time as a clearance was issued, or the Tribunal reviewed the Interim Bar.

8. Overall the respondent had identified a record of the nature which required a risk assessment of the applicant in accordance with the relevant provisions of the Act.

9. On 24 August 2015 the respondent issued a 'Notice of Proposed Refusal of Application' pursuant to section 19 of the Act. After considering all of the material previously provided and reviewing the matter, on 20 November 2015 the respondent finalised the working with children check and the applicant was refused a clearance.

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

11. On 14 December 2015 the applicant lodged an application for administrative review before the Tribunal. The grounds of the application are in summary:

I have had allegations made about me which are untrue.

I am about to lose my family as a result of this.

I need to have my side of all this told.

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 appellant’s 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 27 May 2016. The applicant was unrepresented and appeared himself. The respondent was represented by Counsel, with instructing Solicitors. At the conclusion of the hearing the Tribunal reserved its decision.

Applicant's Written Evidence.

34. The applicant filed an application for review in addition to a stay application. In addition to that material the following items were tendered by the applicant:

• Signed statement submission dated 1 May 2016.

• Unsigned Statement by son of applicant addressing allegations arising 2013/2014 during foster care arrangements.

• Six page statement of applicant in response to adverse matters / inferences raised by respondent.

35. After a brief adjournment to allow the applicant time to prepare and address material served on him by the respondent, the applicant proceeded with his evidence.

Applicant’s Oral Evidence

36. The applicant gave evidence about his family history and arrangements. He stated that the male child ‘M’ had been in care for 8 years and the female child ‘M’ had been in care for 7 years. Another child ‘J’ had been in care for 16 years.

36. The applicant had performed service as a football coach for both male and female child participants and had performed this work at an elite level both as an official and participant / competitor in football and other sporting areas.

37. The applicant set out briefly in his oral evidence in chief and by reference to his six-page statement and 1 May 2016 statement the circumstances of the somewhat adverse incidents. The applicant characterised those as being ‘two incidents from troubled teenagers’.

38. In cross-examination the applicant was questioned about the incident from 1992 which resulted in charges of wilful and indecent exposure. The applicant advised that the name recorded on those records related to his birth name and that he subsequently reverted to his current surname. The birth name continued to be referenced in police records during the 1990’s.

39. In oral evidence the applicant stated that to his understanding there was no conviction in respect of the 1992 matter. However the records from Court show that a Recognizance under the then section 558 of the Crimes Act 1900 was ordered with conditions being a monetary Bond. An order under section 558 amounts to a conviction as opposed to an order under the then section 556A where similar conditions may be imposed without proceeding to a conviction.

40. The applicant maintained that he was not convicted, and that was his understanding of the court outcome. In any event the Tribunal notes that a dismissal under the previous section 556A amounts to a deemed conviction for the purposes of section 27 of the Act and consequent risk assessment. A 556A or current section 10 (Crimes Sentencing Procedure Act 1999) is a finding of offence proven without proceeding to a conviction as opposed to an outright dismissal.

41. The Police Facts tendered at page 368 of the respondent’s bundle referred to the applicant walking through the gate at the perimeter of the property, whereas the applicant denied this and said in evidence that he only walked from the laundry to the back shed (within the yard). The complainants’ evidence was that the applicant was naked, whereas the applicant stated at the time that he was wearing his underpants. The complainants were a group of female High School students. At the hearing the applicant maintained that he had been naked and that was why he had run to the back door from the laundry / back shed.

42. The applicant was taken to pages 325, 329 and 336 from the respondent’s bundle, which dealt with allegations that the applicant in the workplace had accessed pornographic sites / material on the internet in the presence of young persons under his care. These matters relate to an incident in July 2003.

43. The applicant was asked what he did, and answered that he had looked at pornography on the computer after hours and when the children were in bed. There was an incident where he admitted that something ‘opened up’ on the computer, but this was characterised as an incident when he had a colleague open up a ‘Paris Hilton’ website and taught the applicant how to delete the item(s). The applicant maintained that he was ‘inexperienced with computers’ and this is why he had sought assistance.

44. The July 2003 incident had resulted in a workplace investigation. Arising from that investigation the applicant had admitted accessing pornographic material in front of the two children in his care at work, however explained the circumstances as being not deliberate. He says that he was unaware prior to it loading onto the screen that the material was pornographic in nature. The applicant denied saying to one of the female children ‘M’ following this incident, ‘don’t tell anyone’.

45. The applicant denied that he later went outside and urinated on the perimeter fence with the two female children were present. The allegations in the workplace investigation included a reference to this conduct which included the applicant ‘exposing himself’ to the girls. The applicant only admitted going outside with the two girls.

46. The applicant was taken to a psychological report prepared in respect of the applicant and in the context of he and his wife fostering children on behalf of the (then) Department of Community Services. The report was prepared in late 2007. In paragraph 17 of that report was a reference to the applicant’s use of computers. (Page 275 of the respondent’s bundle).

Until that time (CJD) says that he was quite inexpert with computers and had found them too complicated to use. He said that he became addicted to the watching of adult porn as a consequence of being shown how to do this.

48. The applicant was asked by the respondent’s Counsel in cross-examination whether he was telling the truth in his answers to the psychologist in 2007. The applicant answered ‘yes’. The applicant was then asked why he had not mentioned the 1992 incident to the psychologist. The applicant advised that he did not because of his understanding / belief that he was never convicted of that ‘exposure’ matter. He only disclosed matters where he was convicted.

49. The 1992 matter is not recorded at paragraph 9 of the Psychologist’s 2007 report, under the heading ‘Prior criminal behaviour’. The author notes that no criminal history or record was supplied at the assessment, and notes the applicant disclosing a cannabis possession matter from over 10 years prior.

50. When asked about this at hearing the applicant explained the circumstances as being that he was holding the contraband for another person (on their behalf), so as to lessen the impact of possession. In this regard the Tribunal infers that the ‘owner’ of the drugs would have received a more serious penalty at Court than the applicant, who presumably had a lesser or not drug significant record.

51. It was outlined in examination that after the conclusion of the workplace investigation the allegations against the applicant were sustained. However in respect of other outcomes arising from that finding the applicant characterised the allegations as having been dismissed by police.

52. The applicant was questioned about his statutory declaration of 29 May 2015 which was submitted as part of his response to his working with children application. Specifically the applicant was asked why he did not address the workplace investigation matter in the Declaration. The applicant gave evidence that he did not refer to that matter because the Department (Docs / Community Services) already knew of the matter. In his evidence in cross-examination the applicant stated in addition that Docs ‘dismissed the entire allegation’, and repeated his earlier evidence that ‘Police dismissed the entire (workplace) allegation’.

53. The applicant referred to his earlier life and that his father died when the applicant was 19 years old, and his mother died four or five years later when he was 23 or 24 years old. The respondent’s Counsel identified apparent inconsistencies in aspects of the applicant’s evidence, and questioned whether he was being entirely truthful to the Children’s Guardian in his statement / declaration. There was a dispute about when his parents died, and whether he was working in the army as a driver at the relevant time or not. The applicant gave evidence that his mother was violent when the applicant was a young child and that he was thrown out of home at the age of 15.

54. The applicant denied in answers during cross examination ever urinating on the fence in the presence of the two young girls and / or exposing himself to them at that time (as per paragraph 46 above).

55. The applicant was asked about various allegations that arose in more recent years concerning fostering children and matters in the family home. These matters were significantly referred to in the applicant’s written material. Counsel for the respondent took the applicant to matters involving complaints from the female adolescent ‘J’ who was a child living in the family home. Evidence was given about the complainant seeing ‘J’ in the shower on one occasion. The applicant’s evidence was that it was accidental. He did not walk into the bathroom, but closed the door from the outside and went and told his wife. This incident arose in Care Report records within the respondent’s bundle at page 22, whereby ‘J’ reported this incident and other matters of concern about the applicant, to the Department.

56. By the time of the above incident ‘J’ was a foster child placed in the applicant’s home and care. ‘J’ had made further allegations concerning an inappropriate level of interest in her, possession of photos of her by the applicant, matters relating to the applicant’s son’s behaviour towards her, and a more serious allegation of sending an inappropriate image of his genitalia to ‘J’. Page 22 and page 421 of the respondent’s bundle provide this material.

57. At the end of cross-examination the Tribunal allowed in fairness, a manner of re-examination so that the applicant could clarify aspects of his evidence in cross-examination.

58. The applicant addressed the issue of the image referred to at paragraph 56 above, and indicated because of his enlarged prostate he could not urinate at the relevant time without medication and that (side effect) affected his ability to function normally in a sexual physiological context.

59. The applicant gave evidence that in respect of the matters involving ‘J’ what occurred was actually the opposite of what she alleged. The applicant said that he had stated that ‘J’ did have a ‘good body’ on a number of occasions, however the context was to improve her self-esteem as she had previously and continued to engage in self-harm.

60. The applicant had been married for 22 years and had been apart (because of the lack of a clearance) for nearly a year.

Evidence of Witness 1 – applicant’s spouse

61. The applicant’s spouse gave evidence at the hearing. In respect of the applicant’s problems with urination, her evidence was that he was having problems passing urine. A few years prior to taking up the medication the problem had arisen for the first time.

62. In respect of the issues with the adolescent foster child ‘J’, the witness gave evidence that ‘J’ came to their home because she was being sexually abused at home by her cousin (in a previous foster care placement). ‘J’ was frightened of going back because of repercussions. The witness wrote everything down in respect of the allegations and called the Helpline. The Department arranged in 2013 for ‘J’ and her brother to move in.

63. The witness gave evidence that in her view ‘J’’s behaviour was provocative, and she was exhibiting sexualised behaviours towards other persons in the home. Evidence of this was when ‘J’ allegedly ‘sauntered down the staircase’ in a sexually provocative manner for all to see. In the witness’s view, ‘J’ ‘acted like a sexual being’.

64. Further, in the witness’s view, ‘J’ had low self-esteem. She sexualised relationships with her biological behaviour. The witness gave evidence that in respect of the shower allegation, ‘J’ was in the shower and called out to the applicant / for the applicant. The applicant was in his ‘man-cave’ with the television on loud with their son. That was why (in her view) they did not hear ‘J’ calling out but the witness did.

65. The witness gave evidence that ‘J’ had told her that ‘Dad’ (the applicant) had seen her in the shower with the door open. ‘J’ was bad in respect of self- harm and reacted to things that were said to her. She was provocative and had called the applicant into her room when she was barely dressed.

66. Possibly due to the hearsay element of aspects of this evidence and the respondent’s view as to weight that could be given to this evidence in the context of risk, the respondent declined any cross examination of the witness.

Applicant’s written material

67. The applicant provided the written material outlined at paragraph 34 (above). In respect of the 1992 allegation the applicant characterises it as ‘someone looking over his fence’, and knew nothing of the matter until the police knocked on his door some time later. In this statement the applicant says the issue about being not convicted is down to the Court Clerk making a mistake, and this was brought to his attention a week after the verdict. His Solicitor advised him that it could be corrected but only by paying more (to engage the Solicitor again). Due to financial reasons – and his belief that it would have no repercussions, he decided to take no action on this error / issue.

68. In respect of the allegation of showing pornography on his computer to two children under his care the applicant’s statement made the following observations. ‘M’ was a new girl who had been transferred to this refuge because she was previously causing trouble. ‘M’ had asked to borrow $50 earlier in the day and the applicant had refused. Later back at the refuge the young males / youths in the neighbouring house were intoxicated and causing trouble. The applicant confronted the youths and they calmed down. At 10:00pm his colleague ‘Pauline’ signed off and went home. Later the two girls ‘M’ and ‘Z’ asked the applicant to open a website while he was tending to administrative matters. It was suggested that the site covered wedding dresses and had a title with ‘Australian Dream’ or similar. When the applicant opened the website it was a pornographic website and the applicant tried to shut it down. His statement records that he kept getting ‘pop ups’ and that delayed the process.

69. In his statement the applicant sets out hearsay evidence of conversations between ‘M’ and Pauline, in respect of constructive dismissal, which from the statement is directed at having the applicant dismissed. Later in the statement the applicant sets out the official history of management informing him of the computer incident allegation and workplace investigation within days of his knowledge of what his colleague Pauline told him. Whilst the allegations came up officially very quickly, the applicant submits that the eventual investigation only commenced 2 years later as a result of his agitating for it to occur.

70. The applicant ties his medical (prostate) problems with the related allegation about urinating on the fence and advises that physically it would have been impossible for him to do this.

71. The applicant also addresses the allegations by ‘J’ in the statement. In addition to matters canvassed in his own and his spouse’s oral evidence, the applicant sets out his view that ‘J’ was destabilising the other children in the household and seeking to be disruptive. The applicant sets out the circumstances of the instances or the interactions between himself and ‘J’ (as referred to in the evidence and section 58 documents). The general picture from the statement is that ‘J’ caused the issues or was to blame or otherwise responsible in some way for these incidents (applicant walking in on ‘J’ or ‘J’ walking in on the applicant). In addition the applicant raises issues concerning ‘J’s integrity in addition to her behavioural concerns, such as petty stealing etc. After ‘J’ turned 18 the applicant referred to ‘J’ asking for loans and his view that she was buying drugs with the money. When he was unable to lend her any more money (in the hundreds of dollars) the applicant referred to her anger.

72. A statement was provided by the applicant’s son (also referred to by his initial ‘J’). That unsigned statement addresses allegations that the female ‘J’ had responded to a request to teach him how to kiss and that comments were made about her breasts. He denies these things.

73. The statement provides similar observations as the other applicant evidence that the issues were all caused by her (‘J’s) behaviour and that in effect she is to blame, brings things on herself, and is flirtatious with males.

Respondent’s Evidence and Submissions.

74. The respondent tendered four volumes of material. The section 58 documents Exhibits R 1 comprised 432 folios being the material upon which the respondent made the decision. The other volumes comprised detailed reasons for decision, and two items filed following inquiries made under section 31 of the Act.

Submissions

75. The respondent submitted at hearing that full disclosure requires honest disclosure. To disclose everything and to disclose it truthfully. In the respondent’s submission the applicant was not honest with the Tribunal in respect of the 1992 incident, and also not honest and completely frank with the psychologist in 2007.

76. It was submitted that had he been honest with the psychologist, he may not have been approved as suitable and allocated foster children. The respondent submitted that paragraph 9 (prior criminal history), and paragraphs 32 and 33 of the report illustrate the lack of candour and full honesty and disclosure by the applicant, so as create significant flaws in the risk assessment process performed by the psychologist.

77. The respondent submitted that in respect of the 1992 incident and the 2003 incident of exposing himself to ‘M’ and ‘Z’ after they looked at the computer constitute an element of Paraphilia – the exhibitionism of taking one’s clothes off and showing oneself to school girls.

78. The failure to disclose these matters it was submitted that the psychologist report concerning a risk assessment is flawed, in both its elements and conclusions.

79. The respondent submitted that the applicant’s demeanour during cross-examination is a concern in respect of risk. The applicant became aggressive and angry when matters were put to him that he either disagreed with or found in some manner objectionable. It was submitted that these matters demonstrate evidence of a characteristic that should cause considerable concern to the Tribunal in making an assessment of the applicant as part of its current role.

80. The respondent submitted that there was the 1992 exhibitionism, the 2003 sustained workplace finding in respect of the schoolgirls seeing pornography on the computer, and conflicting evidence as to whether he turned the computer off, did not turn the computer off, send the girls out of the room etc. Later that evening he allegedly exposed himself. The respondent submitted that on the available evidence it was more likely than not that the complainant ‘M’ was telling the truth.

81. It was submitted that on those two complaints alone the applicant poses a risk to children that is both real and appreciable.

82. In respect of the complaints from ‘J’ in the family home the respondent submitted that they are of less weight and does not seek to draw them to any particular attention of the Tribunal.

Applicant’s submissions

83. The applicant made brief oral submissions at the conclusion of the hearing. In respect of the 1992 incident the applicant emphatically submitted that he ‘did not show himself’, but rather that ‘he was seen’.

84. The applicant submitted that he did not lie to the psychologist who prepared the 2007 report, and maintains his position that he was not convicted of the matter in 1992.

85. In respect of the other matters for which a finding was made, the workplace conduct matter, the applicant submitted that ‘he got it that it is wrong looking at porn after hours in the workplace’. He submitted that arising from the evidence and submissions he did it on a couple of occasions late at night after hours when the residents were asleep. The issue in respect of the two adolescent girls ‘M’ and ‘Z’ he didn’t report because he did not get a chance (as per paragraph 69 above) the matter having escalated initially within days.

86. The applicant revisited the evidence from one of his statements in his submissions concerning his colleague Pauline. He submitted that Pauline made a report of a girl (‘M’) asking questions about how to get a staff member fired.

87. In closing the applicant submitted that he had worked with children for many years after his career in the armed forces and time as a corrections officer. It was submitted that the Tribunal needed to examine the conduct of the accusers rather than his conduct, which had been largely appropriate.

Consideration

88. 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. It is clear to the Tribunal that the criminal matter has been found to have occurred to a higher standard than required in these proceedings. We make this observation notwithstanding the applicant’s denials in respect of the accuracy of the outcome of the 1992 matter. The Tribunal has already addressed this issue in examining the evidence.

89. 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 and will now formally address the matters required under the Act.

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.

90. The applicant was convicted of wilful and obscene exposure offences involving female schoolchildren as witnesses / complainants. Whilst these matters do not constitute an assault they are concerning offences when both the nature and circumstances of the offences are considered in light of the objects of the Act. These matters occurred in 1992 and the applicant continues to deny both the elements and circumstances as considered by the Court.

91. In 2004 the applicant’s employer made sustained findings against the applicant that he had accessed pornography on a workplace computer in the presence of two female children (adolescents) who were in his charge / care. In addition findings were made in respect of the applicant urinating on the fence and exposing himself to the two young persons present when the pornography was accessed.

92. The workplace matters are significantly serious due to the fact that the context was caring for particularly vulnerable children, being a youth refuge.

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

93. The applicant’s last relevant criminal conviction was in 1994. It is 24 years since the exposure matter and just under 13 years since the workplace finding conduct at the time of the hearing.

94. Allegations were made to the Department by the elder sister of the applicant’s foster children (‘J’), in early 2015. Those allegations involved sending an image of the applicant’s erect penis, watching her take a shower, making inappropriate comments about ‘J’s body. Other allegations concerning misuse of foster children’s funds, and photos of children were reported to the Department.

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

95. The applicant’s age at the time of the 1992 incident was approximately 28 and at the time of the 2003 matters was approximately 39 years of age.

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

96. The 1992 witnesses were high school females and therefore somewhere between 12 and 17 years of age. The other victims were aged 13 and 15 at the relevant time (2003) and were clearly vulnerable as they were living in a youth refuge. All of the victims for which findings were made, or merely allegations (such as ‘J’), would have been vulnerable as they were children. The 2003 and 2015 matters involved children in care or being supported by a refuge service due to domestic issues.

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

97. In respect of the 2003 matters the difference in age of one victim was approximately 26 years and 24 years in respect of the other victim. In respect of the 1992 offences there would have been a general range of age differences between 16 and 11 years depending on their specific ages. We note the matters referred to above in respect of Section 30 (1) (d). The relationship with ‘M’ and ‘Z’ was that of youth refuge resident and youth worker. In respect of ‘J’ it was foster parent.

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

98. In all of the allegations involving children, it is clear that the applicant knew that the victims / complainant’s were children.

(g) The person's present age.

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

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

100. The applicant’s criminal record whilst not significant, contains the 1992 offence and the drug offence from 1994. However the overall record (whilst containing the exposure offence in circumstances where schoolgirls were exposed) is not considered a serious record.

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

101. In our view, the pattern of the findings and the allegations of inappropriate behaviour is a matter of some concern due to the similarity of the circumstances and the nature of the alleged conduct. Whilst the 2007 psychological assessment did not consider the applicant to be a risk to children, that assessment was made in the absence of the exhibitionism / exposure matter being disclosed.

102. The applicant has not provided any further or recent expert evidence to mitigate the assessed risk determined by the respondent, even though there is no onus on him to establish that he is not a risk. In addition no evidence was given in support of some of his assertions. Eg: the evidence of Pauline concerning ‘M’.

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

103. The applicant provided character references from his General Practitioner, a friend and a business associate. The applicant’s son ‘J’ provided an unsigned statement and attended the hearing in support of the applicant. The applicant’s wife gave evidence on his behalf at the hearing. The applicant’s own written statements talked positively about his work career, and the fact that complaints never arose in his other wide ranging jobs which often gave him access to potentially vulnerable persons. (Night ride buses, taxi, children’s birthday parties etc.).

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

104. The respondent submitted that the relevant criminal and workplace records all included the indecent exposure of the applicant to teenage girls. The respondent submitted that 1992, 2003 and 2014 incidents showed a pattern of behaviour, and it was inferred that due to the nature of the behaviour there were significant concerns having regard to the overarching purpose of the Act and working with children scheme.

105. The respondent submitted that it was of particular concern that the circumstances of the 2003 incidents were in the context if the applicant being in a position of authority in a youth refuge.

Consideration

106. 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).

107. Reference was made in the respondent’s written submissions to the case of BKE [at 30], which in turn referred to the case of M v M [1988] HCA 68; 166 CLR 59. Significantly submissions focused on whether the Tribunal being satisfied that a particular allegation on the available evidence had not been made out, whether the Tribunal could still be satisfied that the applicant did not pose a real and appreciable risk.

108. 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.

109. 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.

110. 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).

111. 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.

112. 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.

Further Consideration and Findings

113. In making a finding as to whether the allegations from 2015 (involving reports) occurred, we find that we are unable to make a positive finding. In doing so we find that the evidence in the form submitted at the hearing is (in our view) not sufficient to establish those allegations to the civil standard. We note that the respondent did not provide any evidence (other than the reports) to rebut the applicant’s evidence as to what occurred in the family home with ‘J’ and the reasons for ‘J’s behaviour. We do note however that as per all of the other adverse allegations or findings, the applicant in respect of the allegations by ‘J’ sought to mitigate the matters and in doing so did (on our assessment of the evidence at hearing) minimise his conduct wherever possible.

114. That is not to suggest that the allegations of ‘J’ have no truth, (or in the alternative – have truth), but rather than we are unable to positively determine them, in that we are required to be reasonably satisfied as to their veracity (on the balance of probabilities). Therefore whether those matters occurred, or did not occur remains open.

115. However, in the context of whether the applicant poses a risk (notwithstanding the finding above), having regard to all of the material before the Tribunal, including the pattern of the allegations conduct and findings over almost 25 years, 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.

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

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

118. We have particular concerns as to the applicant’s consistent denials in the face of sustained findings, both at the civil and criminal standards. In addition we note the observations of the Tribunal recently in the case of CGA v Children’s Guardian [2016] NSWCATAD 241 at paragraph 82.

For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed towards children. The risk of relapse remains a significant possibility whilst the applicant continues to harbour unresolved psychological issues about his past relationships, and suffers from an ongoing mental illness, and is not undertaking more intensive or specific psychological or psychiatric interventions.

119. Whilst we do not for a moment suggest that the applicant harbours unresolved psychological issues – as in CGA (or any matters of that nature where evidence has been adduced), we are concerned that the denials and deflecting of responsibility (even for matters that were admitted in part), create significant concerns as to the likelihood of risk if similar situations were to present themselves.

120. Notwithstanding the fact that the applicant was self-represented and did not submit any independent evidence as to his current or future risk, 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. A significant period of time was allocated at the outset for the applicant to review late material from the respondent, after which he was content for the matter to proceed.

121. The Tribunal was mindful of the fact that the applicant was unrepresented when giving his evidence and was afforded by the Tribunal the right of reply / re-examination at the conclusion of his cross-examination.

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

123. In our view having regard to all of the material before the Tribunal, the applicant poses some risk to the safety of children, above that of a low risk, being a risk that is (in our view on the evidence and material) both real and appreciable.

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

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

Conclusion

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

127. 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.

128. 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.

129. 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 20 November 2015 to refuse to grant the applicant a Working with Children check clearance is affirmed.

(2) The application for review of the decision of the Children’s Guardian filed 114 December 2015 is otherwise refused and dismissed.

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

Registrar

Amendments

31 October 2016 - Corrected Counsel on cover sheet

Decision last updated: 31 October 2016