CKF v Children's Guardian

[2017] NSWCATAD 6

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CKF v Children’s Guardian [2017] NSWCATAD 6
Hearing dates:	15 August 2016
Date of orders:	04 January 2017
Decision date:	04 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member A Limbury General Member
Decision:	(1) The decision of the respondent dated 15 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
Catchwords:	CHILD Protection – Working with children – Findings in respect of criminal allegations – Evidence – Weight of evidence in absence of testing of evidence – Fairness to party – No presumption of risk s27 – Significant history without instances – Lack of evidence of risk
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Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998(Repealed) Civil and Administrative Tribunal Act 2013 Interpretation Act 1987
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 Children’s Guardian v BRL [2016] NSWSC 1206 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Category:	Principal judgment
Parties:	CKF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: D Kaplan (Applicant) G Mahony (Respondent)   Solicitors: Eckert Legal (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1610041
Publication restriction:	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.

Reasons for decision

1. On 20 January 2016 the applicant applied for administrative review in the Tribunal of a decision of the respondent to refuse a working with children check clearance. That decision was made on 15 December 2015.

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

3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of section 30 (1) of the Child Protection (Working with Children) Act 2012, the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons.

4. On 17 March 2016 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.

5. 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.

6. These proceedings arise because on 15 December 2015, the Children's Guardian made a decision to refuse to grant CKF a working with children check clearance. On 20 January 2016 the applicant applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act.

Background

7. On 4 September 2014 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a clearance in order to resume his work in the medical profession, work which from time to time may involve working with children.

8. From September 2014 the respondent considered the applicant's application.

9. On 6 October 2015 the respondent issued an 'Interim Bar' on the applicant’s Working with Children Check application pursuant to section 17 of the Act. After considering all of the material previously provided and reviewing the matter, on 15 December 2016 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. The applicant lodged the application for administrative review before the Tribunal beyond the period provided for in section 27 (1) of the Act. The section 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.

12. An issue arose that the application for administrative review was lodged out of time, that is beyond the 28 day period allowed for in section 27 (1) of the Child Protection (Working with Children) Act 2012. On 20 January 2016 the applicant CKF lodged his application for administrative review. The decision under review was dated 15 December 2015. In his Affidavit affirmed 20 April 2016 the applicant deposes at paragraph 30 that he received the notice of cancellation on 15 December 2015. A copy of the notice is annexed to the affidavit and that constitutes the decision under review.

13. The Tribunal calculates that on that basis the application needed to be lodged on or before 12 January 2016 having regard to section 36 of the Interpretation Act 1987.

14. As the matter has been heard, and it appears that this issue was not addressed earlier (at either directions or hearing), and has not been raised by either party, the Tribunal wrote to the parties about this issue on 9 December 2016 at the time the reasons were being prepared. The Tribunal sought views on a proposal to extend time for the applicant to lodge his application to 20 January 2016 (the date of lodgement) in accordance with the provisions of section 41 of the Civil and Administrative Tribunal Act 2013.

15. Having received noas response, we make an order extending the time for the lodgement of the application to 20 January 2016 (the date of lodgement) in accordance with the provisions of section 41 of the Civil and Administrative Tribunal Act 2013.

16. The grounds of the substantive application are:

The Children’s Guardian has:

1. Considered material that I have not seen;

2. Refused to provide me with said material;

3. Or appears to be raising allegations, some of which I have no knowledge;

4. Considered material provided by other government departments, much of which I have not seen or had an appropriate opportunity to test, refute, counter, explain or adequately respond.

5. As a result of the above, formed a view without providing me an adequate opportunity to be heard.

17. 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

18. 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).

19. 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).

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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

28. 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].

29. 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].

30. 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.

31. 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 section 28 of the Act.

32. 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 27 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).

33. 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". ...'

34. 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.

35. 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

36. The primary issue before the Tribunal in this application as outlined at paragraph 17 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

37. The matter was heard on 15 August 2016. Both the applicant and respondent were represented by Counsel and instructing Solicitors.

38. At the commencement of the hearing the Tribunal was advised that two witnesses for the applicant would be giving evidence in person at the hearing. Those witnesses were the applicant and his expert witness Clinical and Forensic Psychologist Dr K Seidler. The respondent did not call any witnesses however they cross examined the applicant and his expert.

39. The applicant gave evidence first but was later recalled as it was necessary to take evidence from the expert due to their limited availability prior to the conclusion of the applicant’s evidence.

Written Evidence

Applicant’s written material

40. The applicant filed a number of affidavits in support of his application.

• Exhibit ‘A 2’ an affidavit of ‘M.D.’ who has known the applicant professionally for the last twelve years. The witness is not aware of any complaints concerning children in the applicant’s professional work. The witness also deposed positively of his observations and knowledge of the applicant’s character.

• Exhibit ‘A 3’ an affidavit of ‘Y.B.’ a professional colleague who had worked directly with the applicant for 6 years. The witness deposed their direct observations of the applicant’s working with and care of children, which was favourable to the applicant.

• Exhibit ‘A 4’ an affidavit of ‘A.D.’ who is the son of the applicant. The witness gave evidence of the applicant’s kindness and skill as a parent to the witness and siblings. The witnesses deposed that the applicant never hit him nor did they see the applicant hit any siblings. The witness deposed that the mother utilised corporal punishment, not the applicant.

• The witness account of the marriage breakdown is consistent with the applicant’s and that he obtained knowledge of the serious allegations against the applicant only when the matter was before the Family Court.

• Exhibit ‘A 5’ an affidavit of ‘Y.H.’ who holds a senior role in the religious community of the applicant. The witness gives an account of trying to mediate between the applicant and his wife over financial issues in the relationship. The witness had no knowledge of the serious allegations brought by the applicant’s wife.

• Exhibit ‘A 6’ is an affidavit of the applicant. The affidavit sets out a history of the applicant’s life and in particular professional life prior to coming to Australia over a decade ago. The affidavit sets out the applicant’s medical qualifications and experience, family history and the direct impacts of the allegations at the centre of these proceedings. The remainder of the affidavit deals with the applicant's history during the allegations and in the period since. In addition the affidavit refers to an earlier statutory declaration of 15 January 2015 (which is annexed to the affidavit). In addition various certificates, references, attestations and other material pertinent to the applicant's affidavit and referred to in the body is annexed.

• Exhibit ‘A 7’ is an affidavit of ‘R E’ the current spouse of the applicant. The witness deposes that she first met the applicant in March 2015. They married later that year and her evidence is that the applicant ‘has a good relationship with my 3 children’. (2 of the children are minors and one is now an adult).

• Exhibit ‘A 8’ is an affidavit of ‘A.A.’ a professional colleague of the applicant who has worked with the applicant both overseas and in Australia. The witness gives evidence of the applicant’s dealings with children in his work and provides examples of his care and concern for the welfare of children through his practice. In addition the witness gives evidence about spending time with the applicant’s family between 1994 and 2002 (the former marriage), and observations as to both the applicant’s parenting approach and that of his then spouse and that there was a contrast. In addition the witness gives evidence concerning financial issues in the family and matters concerning the family in Australia and the ultimate breakdown of the relationship and the raising of the serious allegations.

• Exhibit ‘A 9’ is an affidavit of ‘Y.N.’ a step child of the applicant. The witness gives evidence about their mother and the applicant’s courtship and various family gatherings in the months leading up to the wedding. The witness gives evidence as to the applicant’s character both towards the witness and child members of the extended families.

• In addition to the affidavit and his application for review, the applicant filed the report of K Seidler Forensic Psychologist dated 26 April 2016.

Respondent’s written material

41. The respondent filed substantial material under both section 58 of the ADR Act and material obtained since the commencement of these proceedings. Whilst the respondent did not call any witnesses, substantial cross examination of the applicant and examination of the applicant’s expert occurred at hearing. In addition the respondent obtained material under Summons.

Submissions

42. Both parties filed detailed written submissions prior to the hearing, in addition to oral submissions made at the conclusion of the evidence at the hearing.

Applicant’s Evidence at Hearing

43. In evidence in chief the applicant adopted his affidavit and accompanying statutory declaration.

44. In cross-examination the applicant was asked about his contact with his family subject of the allegations. The applicant advised that the marriage ended on a date in April 2011. In October 2011 he had telephone contact but no one on one contact with his children. On 6 June 2014 he met his daughter (‘S’) at her High School and he arranged this meeting through the Principal.

45. The applicant was asked questions in cross examination about his eldest son’s evidence about the 2009 relationship breakdown where the Police were called.

46. The applicant was asked about what corporal punishment or parental chastisement he administered to his children. His evidence was that he smacked his children very rarely. ‘It happened sometimes – very rarely with an open hand’. In respect of his second eldest son the answer was that he ‘beat’ that son ‘M’ on an occasion. (It appeared to the Tribunal and the representatives that this reference was to ‘biting’ the son, but that was later clarified by the Tribunal as being misheard due to the applicant’s accent).

47. The basis of the corporal punishment to the second eldest son was due to ‘M’ starting to challenge the applicant about his behaviour in the home, the state of his room, etc. The evidence was that the applicant ‘beat him’ on the leg on one occasion. There was a second occasion where the same thing happened after the son stole money and was asked by the applicant to leave the house. (The Tribunal notes that the term ‘beat’ was repeatedly utilised by the applicant in his evidence and that English was not his first language).

48. A number of allegations were put to the applicant from the section 58 material. The applicant denied throwing shoes at his daughter and denied the respondents propositions as to why on various aspects of his evidence the applicant could not recall specific details.

49. Matters were put to the applicant about an alleged attempt to contact and coerce his estranged wife to return from the refuge that she had gone to with the younger children. The applicant’s evidence was that three female friends from work wanted to find out what was going on with the wife and children. Two family friends (a man and a woman) attend the refuge to ascertain the situation. When asked whether he perceived any problems arising from these requests to visit the refuge the applicant stated ‘no’. His evidence was that he did not perceive any problems and that the family friends were longstanding acquaintances of 20 years plus.

50. The applicant was asked about the Family Court hearing which was finalised in August 2014. The matter went for three days and the wife, children and applicant gave evidence. When put to him the applicant strongly denied all of the serious allegations.

51. When recalled the applicant was asked in cross examination about his current situation. His evidence was that he met his current wife at a fund raising event in early 2015. He attended family gatherings with her family. He married his current wife in August 2015.

52. He had been doing medical work (as locum) in a regional centre in NSW until July 2015 and had travelled back to Sydney regularly to socialise with his fiancé and her family on a number of occasions. There was some rigorous examination about the specifics of these issues, which appeared to test the credibility of the applicant. Various exchanges during cross examination focused on the dates of the return trips to Sydney, how he was able to meet family members logistically and so forth. During the period between the allegations and the refusal of the clearance, the applicant had been with a number of employers performing front line medical work as a Doctor. He was on a rolling 24 hour roster at times and was challenged about his evidence that he met his family on a weekly basis. His evidence was that it was ‘almost on a weekly basis depending on his roster’.

53. The applicant gave evidence that on one of those occasions his fiancé had travelled to the centre where he was based. This meant that she could see the applicant and one of her children who was studying a University at that location. Sometimes he travelled on weekdays, sometimes on weekends. (The respondent had obtained the applicant’s roster for the relevant period and sought to challenge his movements as against that roster). The Tribunal notes that this approach seemed to either test the witnesses overall credibility and possibly his discharge of his obligations under section 27 (4) of the Act.

54. The applicant was married in late July 2015 and moved back to Sydney after the wedding. Whilst there was a family home in Western Sydney they rented premises elsewhere in Sydney. Whilst he lived with his spouse as husband and wife in the rented premises, the applicant’s sons remained in the family home.

55. The applicant was asked about the family structures. The oldest step son studied at the regional University and lived at that location. The other step son and step daughter lived with the grandfather, however the step daughter moved in with the applicant and his wife in either May or June 2016.

56. The applicant talks to his wife and her children every day, and gave evidence that it is a positive relationship.

57. The Tribunal inquired of the earlier reference to ‘biting’ at the end of the applicant’s evidence. This was clarified as ‘beating’ as set out at paragraph 46 (above).

Expert Evidence

58. Dr Seidler gave evidence at the hearing. The witness was taken to paragraph 53 of the 2016 report where the expert had examined a 2013 assessment. Whilst there was no updating of that assessment the witness noted that the Personality Assessment Index (PAI) had no relevance to the subjects risk of abuse of any kind. Whilst the expert had observed the applicant’s earlier evidence re: ‘Biting’ she advised that it was not related to general risk factors. (The Tribunal notes that this issue was however later resolved in the applicant’s evidence re: ‘beating’ not ‘biting’).

59. The witness indicated that factors such as ‘disrespecting him as a parent’ might be relevant factors however it is difficult to asses risk when trying to weigh up such a finding (within a family context), with generalised risk outside of the family context. The witness did not see those ‘within family’ factors as being evident at the time of her assessment.

60. The witness indicated in her evidence (re: the approach) that as a psychologist you ask yourself the question – what are the factors that lead to the negative emotional states that leads to allegations of abusive conduct. If a lack of full disclosure is due to a lack of insight, then that would be of concern, or if there are negative personality traits.

61. The witness was taken to the report of Dr Krabman (prepared in the Family Court context). The witness gave evidence that she did not find that report useful in respect of her assessment as there is no overarching thesis to the report (in her opinion). There was a reference to one complainant making a statement that the applicant allegedly said ‘it’s OK I am a Doctor’. The witness indicated that in the material before her (including her assessment) there was no evidence of any relevant workplace issues bearing in mind the tangible way that medicine is practiced.

62. In re-examination the witness was asked about the applicant’s level of risk within the family context. (and elsewhere). The witness advised that even though the risk was most concentrated within the family context, the Risk for Sexual Violence Protocol (RSVP) results balances off the other factors.

63. The report concluded that the applicant posed an overall low risk having regard to the protective and risk factors, in respect of sexually abusive conduct.

Respondent’s Submissions

64. The respondent submitted that there were three approaches open to the Tribunal. The Tribunal could make a positive finding that the thing (the abuse) occurred, the Tribunal could make a positive finding that the thing (the abuse) did not occur, or the Tribunal could take an approach in between.

65. The respondent conceded in written submissions that the report of Dr Krabman whilst adverse to the applicant, is balanced out by a long career without any complaints of relevance. It was further submitted that whilst it may not be possible to make a positive finding that the abuse occurred, the Tribunal does not need to make a positive finding.

66. The respondent submitted that the question for decision is not based on positive findings, but rather whether in all the circumstances the applicant poses a real and appreciable risk to the safety of children.

67. The respondent submitted that the allegations, if true are serious and represent a significant breach of trust, and suggest that the applicant may frame abuse type behaviour within a medical context. The respondent also submitted matters of a speculative nature that abuse could be occurring in his employment as inappropriate touching and other conduct could go unnoticed with it being framed as medical treatment. (Respondent’s written submissions dated 4 August 2016 paragraph 49 (b)).

Applicant’s Submissions

68. The applicant made oral submissions at hearing and filed written submissions. The applicant did not dispute the seriousness of the allegations. The respondent referred to the letter from the Director of Public Prosecutions (DPP). The DPP wrote that after considering 16 pieces of detailed evidentiary material that ‘this Office is of the view that there is no reasonable prospect of conviction in relation to various offences disclosed by (the three youngest children)’.

69. It was submitted that a thorough investigation of the allegations had occurred. It was also submitted that there was evidence in the DPP brief that there were fundamental difficulties with the timing and manner of disclosure of the allegations, and that this was noted by the Manager DPP lawyer. Submissions indicated that there were some concerns with the witness evidence given by the children’s mother.

70. The applicant again submitted that the conduct (as alleged) did not occur, and noted that the respondent did not call any witnesses in the proceedings (specifically the mother of the complainants / victims). Matters were submitted relating to the contents of the brief, and answers by children (when allegations were put) that ‘yeah, that’s what my mum said’. (Respondents further documents pg. 194)

71. The applicant submitted that the affidavits of the applicant’s witnesses should be given significant weight, and that they were supportive of the applicant, were cognisant of the nature of the allegations and these proceedings, and supplemented the expert evidence in respect of risk. It was submitted that because of a lack of testing of certain evidence by the respondent it was open to the Tribunal to draw Jones v Dunkel type inferences. (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).

72. This submission was made in particular to the reference by the respondent to the allegations being framed in a medical context. The submission being that the failure to call those witnesses (on the contentious points) is because their evidence would not have assisted the respondent’s case.

73. The respondent submitted that there was a conflict in the evidence in that in other documented evidence the applicant was at work on the day of one of the alleged assaults.

74. It was submitted that the most up to date expert evidence conformably supports the conclusion that the applicant poses a low risk. It was submitted that there were valid criticisms of Dr Krabman’s report in that the recommendations in that report were premised on certain assumptions.

75. It was submitted that Dr Seidler’s report is more recent, it has been tested and for those reasons it should be given greater weight than the Krabman report. It was submitted that the detailed paragraph 98 and paragraph 99 of the Krabman report were two sides of the same coin, attempting to reach both different and supporting conclusions.

76. In closing the applicant submitted that no weight should be placed on the respondent’s submission about the circumstances of the applicant’s consenting to the severely limiting Family Court Orders. The applicant submitted in strong terms (contrary to anything being raised of this nature by the respondent), that the consent was without any admissions and as a result are not indicative of significant concern as to the allegations.

77. The applicant’s counsel submitted that not only are there no complaints against the applicant (in respect of his dealings with child patients and children generally) but that the witnesses / referees ‘sing the applicant’s praises’.

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.

78. 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 is accused of sexually assaulting his youngest children.

79. The seriousness of the allegations is significant. As the father of the children such transgressions would indicate a significant breach of parental responsibility.

80. The Applicant denies the allegations.

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

81. The allegations relate to matters said to have occurred between 2009 – 2011. There are no prior allegations or further allegations since that time from within that family unit, his current spouse and her children, the places of work or community. There is nothing adverse attaching to the applicant’s conduct on the evidence and material before the Tribunal other than the allegations.

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

82. The applicant was approximately 52 to 54 years of age at the time of the alleged conduct.

(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.

83. The victims in the section 30 (1) (a) allegations were approximately between 5-14 years and the children of the Applicant. They were all children and the applicant was in authority (as their father), in so far as if the allegations occurred, the victims would have been especially vulnerable.

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

84. The difference in age between the applicant and the complainants / victims was approximately 40-48 years. The Applicant is the father of the children and was 40-48 years older than the children at the time of the allegations.

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

85. The applicant is aware that the complainant’s in the allegations were children. The Applicant was the father of the children.

(g) The person's present age.

86. At the time of the hearing the applicant was 58 years of age.

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

87. The applicant does not have a criminal record. There are no records of allegations or misconduct in the course of his employment. There are no other complaints of a sexual nature against the applicant from family, work or community.

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

88. The Applicant provided a psychological report in support of his application from a Forensic Psychologist. That report concluded that the applicant posed an overall low risk to the safety of children. The report was tested during the hearing. Dr Seidler’s report set out the evidence leading to the conclusion that the applicant poses a low overall risk. The risk factors and protective factors are set out at paragraphs 75-76 of Dr Seidler’s Report.

89. Dr Seidler gave evidence that she did not see factors evident to be significant risk and warrant intervention in either the work or community contexts.

90. Whilst there is another report before the Tribunal, that report is not in the context of the ultimate task for the Tribunal, a risk assessment.

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

91. The applicant tendered a detailed affidavit and an expert report in support of his application, and was subject to extensive cross-examination at hearing. In addition the applicant tendered a significant number of witness affidavits supporting his application.

92. What was considered as a biting incident was considered an inappropriate abusive response. Dr.Seidler gave evidence to say that it was questionable if it related to sexual abuse. Further it occurred in a familial environment. However the applicant clarified in re-examination that his actions occurred as beating his son on the leg rather than biting him. This clarification gives a different context to the behaviour.

93. In the work setting there was evidence of a long work history with no allegations. Likewise, over a more concentrated period in a community setting, there were no adverse allegations.

94. The applicant’s detailed references are supportive of appropriate behaviour and interactions with the authors and their settings. It is noted that none of these witnesses were required for examination by the respondent or their evidence open to challenge.

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

95. The respondent obtained a report of Dr Krabman which was prepared in the context of the Family Court proceedings.

96. With regard to Dr Krabman’s report there were some aspects of its clarity and usefulness that were questi5ned by Dr Seidler. It was not directly tested in the hearing. (See paragraphs 68, 74 and 75 above)

Consideration

97. In our view the applicant was consistent in his answers. The applicant's overall denials of the conduct were consistent and withstood cross examination.

98. The Supreme Court has recently revisited the correct approach that the Tribunal should take when making a finding on otherwise unproven allegations, and then moving to the substantive consideration of risk.

99. In the matter of Office of the Children's Guardian v CFW [2016] NSWSC Harrison J. observed the following concerning the approach arising from observations made in BKE.

The statutory test

13.The test in s 18(2) of the Act requires a decision maker to consider whether a person "poses a risk to the safety of children". "Risk" in this context excludes "fanciful or theoretical risk" and instead requires a decision maker to determine "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": Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children's Guardian [2015] NSWSC 523 at [33].

14.The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application.

15.The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to:

"... determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess 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 came about, will have a detrimental impact on the child's welfare."

16.Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41].

17.A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left "open", the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.

100. The applicant's evidence in written and oral statements are that the matters alleged did not occur. The denials were consistent and the complainant’s evidence was not tested and witnesses were not required by the respondent but rather the Tribunal was taken to the material provided by Police and the Department on behalf of the respondent.

101. In our view for the reasons set out above the report and evidence by Dr Seidler should be given a larger weighting.

102. The allegations were made in the context of an acrimonious breakdown of the marital relationship. Family Court Orders made without admissions.

103. The accuracy of the daughter’s allegation was brought into question as the Emergency Department Records of 12/04/2011 indicate that the Applicant was at work on the day of the alleged sexually abusive incident regarding the daughter. As such, it would be difficult for us to find that this allegation is positively found.

104. We note that many of the allegations were not substantially tested at the hearing. It would therefore appear that on the balance of probabilities that a positive finding cannot be made with regard to the remainder of the sexual allegations.

105. We observe that although questions arise about the validity of a complaint to Police on 17/09/2012 by the mother about the Applicant attempting to take his daughter from school, the Police enquiry into this found that there were no concerns about an attempt to remove the daughter from school. In our view this potentially raises questions about the credibility of the mother and level of appropriate judgement regarding her willingness to report these matters to Police. (See pages 253-254 Respondents Exhibit ‘R2’.)

106. If a finding needed to be made on that matter we would find that the allegation of an attempt to remove the daughter from school on 17/09/2012 does not stand or is not made out.

107. The significant allegations described by the three children to Police by interviews remain largely untested through a hearing process. That is not to say that those witnesses should have been called, but the significant concerns about their evidence (as set out by the DPP) lead the Tribunal to have significant difficulty in reaching any positive findings in respect of the allegations.

108. However due to the number of allegations by the children and the level of disclosure by them, some suspicion remains that some of the alleged behaviour may have occurred.

109. On this basis, we are not able, on the balance of probabilities, to make a positive finding that the alleged behaviours did not occur. Therefore on many of the issues we cannot make a positive finding that the alleged behaviours occurred or did not occur.

110. For these reasons we find that (consistent with the observations of Harrison J in Office of the Children's Guardian v CFW at paragraph 48) we have explored those matters to the extent available to us at the hearing. We have set out those matters relating to the mandatory considerations above. However we are unable to make a positive finding.

111. Notwithstanding that lack of a positive finding, on the evidence before us, we are not satisfied that the Applicant poses a real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we so find.

112. In consideration of real and appreciable risk based on consideration of all the circumstances we find that the correct and preferable decision is to set aside the decision by the Children’s Guardian and that the Respondent is to grant CKF a working with children check clearance.

Conclusion

113. 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. All material has been considered however the material of the expert witness was given significant weight, having regard to the fact that their evidence was scrutinised, and that they have provided expert evidence on the substantive consideration for the Tribunal, that is whether the applicant is a risk to the safety of children. In particular the applicant's evidence and the expert evidence were considered to a significant extent in determining the major issue for determination, whether the applicant poses a real and appreciable risk to the safety of children and young persons.

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

115. 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.

116. 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.

117. 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.

118. 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.

119. 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 15 December 2015 to refuse to grant the applicant a clearance is set aside.

2. The respondent is to grant the applicant a Working with Children Clearance.

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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: 04 January 2017