CKJ v Children's Guardian

[2018] NSWCATAD 117

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CKJ v Children’s Guardian [2018] NSWCATAD 117
Hearing dates:	15 February 2018
Date of orders:	31 May 2018
Decision date:	31 May 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member D Crowley, General Member
Decision:	(1) The respondent’s decision made on 30 September 2016 to cancel the applicant’s working with children check clearance is set aside.  (2) In substitution for that decision a decision is made to grant the applicant a working with children check clearance.
Catchwords:	ADMINISTRATIVE REVIEW – review of a decision of the respondent to cancel the applicant’s working with children check clearance – the applicant was a former authorised carer who had her authorisation cancelled following allegations made against her by two boys in her care – the allegations were investigated and found sustained – in 2017 the District Court found that the findings of the allegations was unreliable and care orders were made granting the applicant parental responsibility of a child who had been in her care – whether the allegations made – whether the allegations made by the boys were such that the applicant poses a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) and other Child Protection Legislation 2016 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Commission for Children and Young People Act 1998 (NSW) (Repealed) Community Services (Complaints, Reviews and Monitoring) Act 1993 Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264 CKJ v Life Without Barriers [[2016] NSWCATAD 70 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 CTM v Children’s Guardian [2016] NSWCATAD 280 CZZ v Children’s Guardian [2018] NSWCATAD 56 Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 FZ v Commissioner for Children and Young People [2010] NSWSC 1144 Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162 M v M [1988] HCA 68; (1988) 166 CLR 69 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 Re: A Foster Carer v Department of Family & Community Services [2017] NSWDC 360 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	CKJ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Brain (Applicant) V Hartstein (Respondent)   Solicitors: NSW Crown Solicitors (Respondent)
File Number(s):	2016/00378444
Publication restriction:	Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal.Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

reasons for decision

Introduction

1. The applicant, CKJ, seeks administrative review of a decision of the respondent, the Children’s Guardian, to cancel her working with children check clearance (a WWC clearance): see Child Protection (Working with Children) Act 2012 (WWC Act) (NSW), s 23(1) and s 27(1). The applicant is 49 years of age and a former authorised out-of-home carer under the Children and Young Person (Care and Protection) Act 1998. As an authorised carer, the applicant was required to be the holder of a WWC clearance.

2. On 30 September 2016, the respondent, through her delegate, determined to cancel the applicant’s clearance, as she was satisfied, after conducting a risk assessment, in accordance with ss 14 and 15 of the WWC Act, that the applicant posed a risk to the safety of children: WWC Act, s 23(1).

3. The respondent undertook a risk assessment following the cancellation of the applicant’s authorisation as a carer, by Life Without Barriers, in February 2016. The applicant’s authorisation was cancelled following an investigation, by Life Without Barriers, of allegations made against the applicant by two boys in her care. The boys, siblings, aged 15 and 13 years had been place in the applicant’s in 2008. In 2009, their younger sister, child A, was also placed into the applicant’s care. She was 10 days old.

4. The boys made their allegations in September 2015 and all three children were removed from the applicant’s care at that time pending the investigation of the allegations that the applicant had kicked, threatened, assaulted and inappropriately and unreasonably treated the three children that were placed in her care.

5. The investigation found the allegations to have been sustained giving rise to a “a trigger event” that required the respondent to undertake a risk assessment of the applicant’s clearance: see WWC Act, ss 14 and 15 and cl 2(b) of Sch 1 (i.e. a finding by a reporting body that the applicant had engaged in a number of serious physical assaults of a child). In undertaking the risk assessment the respondent was satisfied that the applicant posed a risk to the safety of children and as a consequence she was required to cancel the applicant’s clearance: see WWC Act, s 23(1).

6. The applicant has at all times denied the allegations and taken steps to obtain parental responsibility of the girl, child A. On 15 December 2017, the NSW District Court found that “there were no reasonably sustainable allegations or suspicions against the applicant in respect to unacceptable risk of harm to the child if in her care, I consider that there is no reasonable impediment to the parental responsibility order that the applicant now seeks”. The Court subsequently made orders granting parental responsibility of child A to the applicant. The orders were subject to several monitoring conditions for a period of two years.

7. This application of the applicant has had a protracted history due to her challenges to the findings of the Life Without Barriers’ investigation in seeking parental responsibility of chid A. Up until the hearing of this application, on 19 February 2018, the respondent contended that its decision to cancel the applicant’s WWC clearance was the correct and preferable decision. However, at the hearing of this application, which was listed for a two day hearing at a regional Local Court, the position of the respondent changed to one of neither supporting or opposing the applicant’s application for review.

8. There is no dispute that the Tribunal has jurisdiction to review the decision of the respondent that is the subject of this application. The role of the Tribunal in reviewing that decision is to determine the correct and preferable decision having regard to the material before it and the applicable law: see Administrative Decisions Review Act 1997 (NSW), s 63(1). The orders the Tribunal can make on an application for review include an order to affirm the decision of the respondent, or an order to setting aside the decision of the respondent and in substitution thereof making another decision (in this case an order to grant a clearance): see Administrative Decisions Review Act, s 63(3) and WWC Act, s 18(2) and (3).

9. In this application, the primary issue for us to determine is whether, as at the date of hearing, we can be satisfied the applicant poses a real and appreciable risk to children generally if her clearance to work in child related-work was to be restored: see WWC Act, s 30(1). If we are not so satisfied, before we can make an order setting aside the decision of the respondent, we must also be satisfied of the matters in s 30(1A) of the WWC Act; namely, that:

“(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.”

10. For the reasons that follow, having carefully considered all the material before us and the applicable law, we find that the decision of the respondent is not the correct and preferable decision and should be set aside. That is, we are not satisfied that the applicant poses a real and appreciable risk to the safety of children if her working with children check clearance were to be restored to her. That the boys made serious allegations against the applicant is of concern. However, on the material before us we are not satisfied that they occurred as alleged. That is we do not find that the evidence establishes that the applicant did in fact physically and emotionally abuse the children in her care. Nevertheless, we accept that the circumstances giving rise to the boys’ removal from the applicant’s care involved a number of unexplained complexities, not necessarily attributable to the applicant. We found the applicant to be a credible witness who readily acknowledged her shortcomings in communicating with others, and we are satisfied that she has adequately addressed these, even though, as pointed out by the expert, Dr Lennings, they do not give rise to concerns about the applicant posing a risk of harm to children in a child-related environment. We are otherwise satisfied of the matters set out in s 30(1A) of the WWC Act.

The WWC legislative scheme

11. The WWC Act came into force on 15 June 2013. The objects of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: see WWC Act, s 3.

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

13. The word “children” is defined in s 5(1) to mean persons under the age of 18 years. Consequently, the word “child” has the same meaning.

14. The term “child abuse” is not defined in the WWC Act and should be given its ordinary meaning. In this regard, the Tribunal has referred to s 227 of the Children and Young Persons (Care and Protection) Act (NSW), which creates an offence of “child abuse”, which is in the following terms:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.

Maximum penalty: 200 penalty units.”

15. Subsection 8(1) of the WWC Act prohibits a person from engaging in “child-related work”, unless:

1. the person holds the relevant working with children check clearance; or

2. there is a current application, by the person, to the respondent for the relevant working with children check clearance (i.e. a clearance).

16. Subsection 9(1) contains a similar prohibition on an employer from employing, or continuing to employ a person, in child related work where the employer knows, or has reasonable cause to believe, that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.

17. Child-related work is very broadly defined in ss 6 and 7 of the WWC Act. A clearance is not granted for specific child-related work. Once it is granted it is a clearance for any child-related work: see BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 at [27].

18. While the applicant does not intend to seek authorisation as an out-of-home carer at this time, she does seek to have her clearance re-instated so that she can engage in other child-related work.

19. Section 18 prescribes how the respondent is to determine an application for a clearance. That section relevantly provides:

“18 Determination of applications for clearances

(1) The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

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

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

20. Section 23 makes provision for the circumstances in which the respondent must cancel a person’s clearance. That section provides:

“23   Cancellation of clearances

(1)  The Children’s Guardian must cancel the working with children check clearance of a person if the Children’s Guardian becomes aware that the person is a disqualified person or the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(2)  The Children’s Guardian must notify the holder of the clearance in writing of the Children’s Guardian’s decision to cancel the clearance.

(3)  Notice of a decision to cancel a clearance must set out the reasons for the cancellation and the right to seek a review under Part 4.

(4)  The Children’s Guardian must as soon as practicable after cancelling a clearance, give written notice of that cancellation to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance.

Note.

The holder of a clearance may also be made subject to an interim bar (see section 17).

21. The applicant is not a “disqualified person” for the purpose of this application. However, as we have noted above, the findings of the 2016 investigation of allegations made against the applicant in her role as an authorised carer required the respondent to conduct a risk assessment under ss 14 and 15 of the WWC Act. Being satisfied that the applicant posed a risk to the safety of children, the respondent was required, under s 23(1), to cancel the applicant’s WWC clearance.

22. The Tribunal has accepted that the word “risk”, in the context of the WWC Act, should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949, at [42]. That meaning was in the following terms:

“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.”

23. As we have noted, a person who has his/her application for a clearance cancelled under s 23(1) of the WWC Act has a right to seek external review of that decision by the Tribunal under s 27(1) of the WWC Act. Subsection 27(4), provides that in review proceedings an applicant must fully disclose to the Tribunal any matters relevant to his/her application.

24. The matters the Tribunal must consider in determining an application for external review are those set out in s 30 of the WWC Act, which are similar in terms to those matters the respondent is to consider when conducting a risk assessment under s 15.

25. Section 30 relevantly provides as follows:

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 … any matters that caused a refusal of a clearance …,

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

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

(d) the age of each victim of any relevant … 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 … 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.

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.”

26. In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered by the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267, where it was held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.

Evidence

27. At the hearing of this application, the applicant relied on the following material:

1. three large bundles of documents. Included in theses bundles was a number of affidavits of support of the applicant and a report of a psychologist dated 24 February 2016 concerning the applicant’s care of child A and child A’s attachment to the applicant – the respondent did not seek to have the psychologist or any of the deponents of the affidavits available for cross-examination at the hearing;

2. a copy of the report of Dr C Lennings, a forensic psychologist dated 16 April 2017. At the request of the applicant Dr Lennings conducted an independent psychological risk assessment of the applicant;

3. a copy of the Judgment of the NSW District Court: see Re: A Foster Carer v Department of Family & Community Services [2017] NSWDC 360

4. a copy of the Minute of Order of the District Court dated 9 February 2018;

5. a copy of the transition plan for child A’s return to the applicant;

6. a copy of the Amended Care Plan for child A dated 15 December 2017;

7. a copy of an undated reference from the applicant’s treating psychologist; and

8. a copy of the transcript of the applicant’s appeal to the NSW District Court together with a further copy of the decision of the Court.

28. The respondent relied on the following bundles of documents:

1. a large bundle of documents, filed on 21 April 2017, containing the s 31 responses it received from the Department of Family and Community Services in regard to allegations made by and about the three children in the applicant’s care;

2. the s 58 documents which consisted of 990 pages, divided into three separate bundles. These bundles were filed on 21 July 2017;

3. a further bundle of documents filed on 21 July 2017; and

4. a small bundle of documents, filed on 5 October 2017, containing a copy of the orders made by the Children’s Court of NSW on 28 July 2017, together with the transcript of the Court’s oral reasons for decision.

29. Both parties filed written submissions.

30. The applicant gave evidence at the hearing and was briefly cross-examined by counsel for the respondent. Dr Lennings was also made available for cross-examination. With the consent of the respondent, Dr Lennings appeared by telephone. He was only asked a few brief questions by counsel for the respondent. Notwithstanding the evidence given by the applicant and the respondent that day, the position of the respondent remained the same.

Background

31. In 2006, Life Without Barriers approved the applicant’s application to become an approved authorised carer. In February 2008, the brothers of child A were placed into the care of the applicant. At that time, the boys were aged 7 and 5 years of age. Both boys presented with some degree of intellectual disability and exhibited some challenging behaviours.

32. In May 2009, child A was placed into the care of the applicant. She was 10 days old. Child A was born with a chromosome 6 abnormality, an absent septum pellucidum, an intellectual disability, gross developmental delay, autism epilepsy and hip dysplasia.

33. On the application of Family and Community Services, the Children’s Court made a Care Order in respect of each child after they were removed from the care of their birth mother: see Children and Young Person (Care and Protection) Act, Part 2. Each Care Order granted parental responsibility to the Minister until each reached 18 years of age.

34. In 2013, the applicant and her husband formally separated. The applicant subsequently moved to another town with the children. In making the move, the applicant was closer to her family, but the children were required to change schools.

35. In early August 2015 the applicant travelled overseas, leaving the children in her father’s care. The applicant’s father was also an authorised carer and Life Without Barriers had consented to the children being placed in his care while the applicant was overseas.

36. On 30 August 2015, the applicant’s father called the local police station to say that the boys had run away. By the time the police arrived, the boys had returned. The following day, the applicant’s father called the case manager of Life Without Barriers to informed her that the boys were “roaming the streets” and misbehaving. Life Without Barriers located the boys and removed them from the care of the applicant’s father. Following their removal, the boys made a number of allegations about the applicant having physically disciplined them and also having assaulted them. A few days later Life Without Barriers made a Risk of Significant Harm report to the Family and Community Services helpline. Shortly, thereafter Life Without Barriers also removed child A from the care of the applicant’s father.

37. The applicant returned from overseas on 4 September 2015.

38. During September 2015, officers from Life Without Barrier and Family and Community Services interviewed the boys. Police also interviewed the boys. In late November 2015, police also interviewed the applicant.

39. An investigator, employed by Life Without Barriers, investigated the allegations made by the boys. It was an investigation conducted pursuant to Life Without Barrier’s “Reportable Conduct Investigations” format. The investigator spoke to a number of people including the birth mother, relevant former and current Life Without Barriers case workers, the School Principal and relevant clinicians. The investigator found 6 allegations to have been sustained. The applicant denied each and every allegation. The terms of each allegation was as follows:

1. Allegation 1 - The applicant treated the boys and child A in an unreasonable and seriously inappropriate and improper manner by:

1. displaying favouritism and preferential treatment with food items between the boys and child A and the applicant’s own children;

2. limiting child A’s dietary needs;

3. denigrating and speaking negatively about the children’s birth family – especially the children’s mother;

4. failing to support or co-operate with birth family contact arrangements;

5. refused supports and denied child A access to appropriate and therapeutic activities; and

6. spoke to the boys and child A in a derogatory manner;

2. Allegation 2 – during 2015, at a specified place, while the older boy was sitting down in the study nook upstairs, the applicant kicked him in the face causing his nose to bleed;

3. Allegation 3 – during 2015, at the same specified place, the applicant threatened the older boy with a knife causing him to leave the house for fear of his life;

4. Allegation 4 - at another specified place, the applicant held a knife to the throat of the younger boy whilst he was in the kitchen and the applicant then forced a tea towel into his mouth. It was alleged the applicant then threatened the younger boy with violence before kicking him into his room in which he was then locked;

5. Allegation 5 – Between late 2014 and early 2015, the applicant chocked the younger boy and banged his head against the wall in his bedroom. It was alleged that this had occurred as a result of an earlier argument the applicant had with the younger boy when he threw an apple away when they were at a fun park;

6. Allegation 6 – the applicant smacks child A on the bottom when she is in trouble, including when she has thrown her ipad.

40. On 19 February 2016, Life Without Barriers cancelled that applicant’s authorisation as a carer on the basis that the abovementioned allegations were found sustained. The applicant filed an application with the Tribunal seeking review of the decision of Life Without Barriers, which she was entitled to do: see Community Services (Complaints, Reviews and Monitoring) Act 1993, s 28(1)(a) and Children and Young Persons (Care and Protection) Act, s 245. The applicant only sought review of the decision in so far as it related to child A, as the boys said they did not wish to return to her care. The applicant also made an application for a stay of the decision of Life Without Barriers pending the outcome of her review application.

41. On 1 March 2016, the respondent, having been notified by Life Without Barriers about the reportable conduct investigation findings, imposed an interim bar on the applicant under s 17 of the WWC Act. The effect of the interim bar was that the applicant was barred from engaging in child-related work pending a risk assessment being undertaken by the respondent.

42. On 11 April 2016, the Tribunal refused the applicant’s application of a stay of the decision of the respondent to cancel her authorisation as a carer: see CKJ v Life Without Barriers [2016] NSWCATAD 70.

43. On 29 April 2016, the applicant filed an application in the Children’s Court, under s 90 of the Children and Young Person (Care and Protection) Act seeking rescission and variation of the Care Orders previously made by the Court in regard to child A. In effect the applicant sought a order granting her parental responsibility of child A.

44. On 28 July 2017, the Children’s Court found that the existing Permanency Planning for child A had been appropriately and adequately addressed and on the basis of that finding the applicant’s application for rescission/variation of the Care Order previously made was dismissed.

45. The applicant then lodged an appeal of the decision of the Children’s Court in the District Court. As we have already noted, on 15 December 2017, the District Court allowed the appeal: see Re: A Foster Carer v Department of Family and Community Services (supra). In the introductory paragraphs of the Court’s decision were as follows:

“Introduction

1. At the outset of these reasons it is appropriate that I identify my ultimate finding that the appellant has suffered an injustice that occurred in the investigatory phase of the circumstances leading to this child care appeal.

2. That injustice stemmed from inherent deficiencies which concerned an investigation report relating to the removal of children in the appellant’s care, and where the Children’s Court later based its decision on an acceptance of the adverse findings that report.

3. The investigation was doubtless produced with the best of intentions by the lead investigator. It was nevertheless revealed to be a deeply flawed document that resulted from an unsatisfactory and incomplete investigation, which lacked fair balance insofar as it stated findings adverse to the appellant. This was in circumstances where, following management decisions made by the care agency responsible for the report, on considerations of investigation costs and the logistics of travel to various locations for the suggested purpose of obtaining statements from potential witnesses to clarify evidence, there was a failure to follow up further supervisory and pertinent investigative suggestions made by the Office of the Ombudsman.

3. Although the document in question had the appearance, title and form of an investigation report, its content lacked examinable evidence to show that, before adverse findings were made against the appellant, there had been a reasoned evaluation of the critical issues with which the report was concerned. This has unfairly operated against the appellant, with deleterious life changing consequences for her, and also, potentially, for the child the subject of this appeal, who was removed from the appellant’s care. In those circumstances, for reasons that will become clear, the appeal must be allowed, along with a reconsideration of the orders made by the Children’s Court.”

46. On 9 February 2018, the NSW District Court made final orders in regard to the applicant’s appeal. The effect of those orders was to rescind the April 2009 order granting parental responsibility for child A to the Minister and ordering that parental responsibility was granted to the applicant until child A attains 18 years of age. The Court also accepted the signed undertakings of the applicant for a period of two years after the making of the orders.

Consideration

Applicable Legal Principles

47. The applicant is not a “disqualified person”. Hence, the general principle of administrative review applies in this application in that neither party bears a burden of proof in establishing that the decision was, or was not, “the correct and preferable” decision: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]–[40]; BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264 at [17] and BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 at [32]. However, as noted by the Administrative Appeals Tribunal of Australia in Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 at [18]:

“… [when] either party to such an application [i.e. a review application] raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge.”

48. It is accepted that where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at p362: see BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 at [33]. That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 at [15] per Dean J; BSR (supra) at [18]; BJB (supra) at [32] and Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 at [23].

49. In BKE (supra) at [30], his Honour Justice Beech-Jones said, where there are allegations of sexual abuse by an applicant for a clearance, significant guidance as to the approach to be adopted when considering the allegation and risk can be derived from the High Court’s decision in M v M [1988] HCA 68; (1988) 166 CLR 69. His Honour went on to say at [33]:

“... [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.”

50. Finally, the jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.

Consideration of the s 30(1) factors

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

51. It is accepted that the “trigger events” giving rise to the cancellation of the applicant’s clearance were serious if true. The applicant has at all times denied having treated the children in her care in an unreasonable and seriously inappropriate and improper manner. She denied kicking the children, threatening them with a knife, stuffing a tea towel into their mouth, banging their heads against a wall, choking them, or smacking child A on the bottom.

52. As we have noted, the allegations made by the boys in the applicant’s care were made after they were removed from her care and at a time they told Life Without Barriers that they did not wish to return to the applicant’s care. Some of the allegations related to events that were alleged to have occurred in 2013.

53. We note the applicant is recorded as having been very conciliatory and co-operated with the Life Without barriers investigation.

54. In regard to kicking the oldest boy and causing his nose to bleed, the applicant confirmed in her interview with the investigator that the boy did have an injury to his nose. She explained that this had occurred when he “nicked off” into the yard. She said the boy would not tell her what happened but he later explained to his case manager that he hit his nose on a table while waiting. In regard to the alleged threatening the older boy with a knife, the applicant said he was in a bad mood and had run away to hide. She suggested the boys could be lying, which they had done previously in an attempt to get her into trouble.

55. In regard to threatening the younger boy with a knife and putting a tea towel into his mouth, she explained that the younger boy had been outside playing and did not want to come in. She said he did come in to drink some water and tipped it onto her head – she said she responded by calling him by his full name – an expression of her disapproval of his behaviour. She said that, at the time she was drying a knife when the boy yelled out to his friend “she’s got a knife.” She said, at no time did she threaten him.

56. In regard to the incident that is alleged to have occurred at the fun park, the applicant said they had been at the fun park in June 2015 and there were many people in the house at that time and they would have seen this incident if it were true.

57. Nevertheless, the question is whether, on the material before the Tribunal, we are satisfied that the acts and omissions as alleged the boys in any of the six allegations, are proven on the balance of probabilities. As we have noted, the investigation report found that each of the six allegations were sustained.

58. We are not bound by that finding. Nevertheless, the applicant contends that the findings of the investigation must be rejected on the basis of the decision of the District Court in Re: A Foster Carer (supra).

59. In that decision, at [322] to [328], the Court made the following remarks in regard to the investigation report of Life Without Barriers:

“322. Underpinning the outcome of the proceedings in the Children’s Court was the issue of the reliability of the care agency final investigation report, which is a 41 page document described as a Final Investigation Report that was prepared and co-signed by two agency Investigations Officers, and that agency’s State Manager, Investigations and Complaints, NSW & ACT.

323. The appellant criticises the process by which the care agency’s investigation proceeded. The appellant also criticises the report that followed, referring to it as being seriously flawed: MFI “4”, par 7 – par 8.

324. In the face of criticisms of the care agency final investigation report as ventilated in the appeal, counsel for the Secretary sought to defend that report by submitting that it was not an expert report in the sense used in civil litigation where civil courts expect authors of expert reports to comply with UCPR r 31.27; Sch 7, cl 5(1)(c): TA176.14 – TA176.20. Accordingly, it was argued, that the report should not be viewed and analysed as critically as occurred during the course of the hearing. For the reasons that follow, I see difficulty in accepting that submission.

325. If the report in question had been described as a preliminary investigation report to be used in order to scope or to guide the development of a final investigation report, the Secretary’s submission cited in the preceding paragraph may have been capable of some limited acceptance.

326. However, having regard to the limited reasoning within the report, and as the report was stated to be, and was proffered as being, a final investigation report, in which findings were made that were adverse to the appellant, I find myself unable to accept the submission made on behalf of the Secretary.

327. That position arises because of the seriousness or gravity of the matters set out in the report in the form of allegations against the appellant, and which stand to be assessed on the balance of probabilities to a standard commensurate with the relative seriousness or gravity of the allegations raised against the affected party: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

328. The document put forward by the care agency investigators in effect stated opinions which sustained findings against a carer concerning the mistreatment of a child in care. The allegations were at a level of the utmost gravity where, as a consequence of such allegations being sustained, the inevitable consequences for the child, and the carer for that matter, could be devastating and life-changing.”

60. The approach taken by the Court in Re: A Foster Carer (supra), is consistent with that stated by his Honour Justice Beech-Jones in BKE (supra); namely for an allegation to be found sustained, it should be proved to the civil standard, on the balance of probabilities. We adopt the same approach and agree that the conclusions reached by the Life Without Barriers investigator are unreliable. As pointed out by the counsel, the investigator did not speak to persons who were present at the time of many of the alleged incidents. Nor did police find a dent in the wall of the applicant’s home as alleged by one of the boys. We note that following their interviews with the boys and the applicant, the Police decided no further investigation was warranted. They found that the statements of the boys were extremely vague in detail and not reliable. Nor did they apply for an apprehended violence order as they had formed the view that there were no immediate fears for the safety of the children.

60. However, this does not mean we disregard the record of what was before the investigator. In this regard we accept that what is recorded in the transcripts of the various interviews with the boys is reflective of what they said at that time. We also note the circumstances that gave rise to the boys being interviewed. The boys had previously made similar complaints against the applicant, which were investigated and were found to have been fabricated. The youngest boy had been in trouble at his school and both boys appear to have expressed a wish not to remain in the applicant’s care. There also appears to have been issues about contact with their older sibling and their birth mother. These issues do not appear to have been entirely of the applicant’s making, but she did acknowledge that she was experiencing some difficulty in managing the escalating behaviours of the boys. As we have noted the boys made their allegations at the time the applicant was overseas and arrangements had been made for them to be looked after by her father, who was also not able to manage their behaviours. We make no adverse findings against the boys in regard to their behaviour, and merely note it appears to have been a difficult time for them, which the applicant also readily acknowledged.

61. We have had the benefit of seeing the applicant give evidence and be cross-examined by counsel for the respondent. We found the applicant to be a credible witness and while she continues to deny having caused any physical or emotional harm to the boys or child A, she continues to acknowledge that during 2013 to 2015 there was some friction between herself and the case workers of Life Without Barriers, the foster carer of the children’s older brother and the school that child A attended. She said the boys’ behaviour became more difficult for her to manage during this time, which is reflected in the material supplied to the respondent by Life Without Barriers. She said that they would often tell her that they would report her to Life Without Barriers in order to get their own way.

62. The Life Without Barriers’ records before the Tribunal provide some support for what has been said by the applicant ever since the boys made their allegations.

63. In regard to the allegations the subject of this application, included in the applicant’s bundle of documents were a number of affidavits in support of her account of events. The deponents of the affidavits included members of the applicant’s family. The respondent did not seek to have any of the deponents available for cross-examination.

64. The applicant now acknowledges that she could have communicated better, listened more and been more supportive of the children’s birth mother. She acknowledged that she suffers from anxiety and in 2016 she decided to seek treatment. Since that time she has engaged in ongoing treatment with a clinical psychologist for her own well-being.

65. In our opinion, on the material before us, we are unable to find, on the balance of probabilities that the applicant engaged in the acts and omissions as alleged by the boys. However, at the same time we are not persuaded that what the boys said during their interviews was “all lies”. There appears to have been considerable tension between the applicant and the boys, which may not have been dealt with as well as it could have been given the boys ages and needs. The difficulties seem to have become more pronounced after the applicant’s husband left the family home in 2013 and the applicant’s subsequent move to another town.

66. In any event, on the material before the Tribunal, we are not satisfied that the applicant threatened or physically abused the boys or child A. However, something must have happened to cause the boys to say that they did not want to return to the applicant’s care after they were removed. We can only speculate as to what actually happened, but on the material before us, we can take it no higher than the applicant having inadequate skills and support in parenting young teenage boys, in out-of-home care, with special needs.

67. Accordingly, we find that the events of 2015, when the boys made the allegations against the applicant were not as serious as alleged. Nevertheless, the circumstances giving rise to those events are of some concern.

68. However, for the reasons set out below, we are satisfied that the applicant has obtained sufficient insight into her past behaviours so as to avoid situations that might give rise to a real and appreciable risk of harm to children in any child-related employment, be it paid or voluntary.

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

70. It is three to five years since the alleged incidents the subject of the Life Without Barriers investigation report. There have been no further reports of incidents of this kind having been made against the applicant. Since the children were removed from the applicant’s care, the applicant has had regular contact with child A and there have been no adverse reports concerning that contact. The ongoing contact has been at the insistence of the applicant who travels two hours there and back to have contact with child A. It is accepted that child A’s main attachment is to the applicant.

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

71. The applicant was aged 42 years in 2013. She was 44 years of age in 2015.

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

72. Child A and her brothers were aged 6, 15 and 12 years old at the time the allegations were made.

73. The children were particularly vulnerable. They were foster children who had been removed from their biological mother. Prior to their removal the boys were neglected and were exposed to physical and emotional harm. Child A and the boys all had special needs.

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

74. There was more than a 30-year age gap between the children and the applicant, who was the children’s foster carer.

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

75. The applicant knew that that child A and her brothers were children.

(g) The person’s present age

76. The applicant is currently 49 years of age. She works in aged care and has enrolled, part time, in a bachelor of nursing.

(h) the seriousness of the person’s total criminal record and the conduct of the person since the matters occurred

77. The applicant was charged with shoplifting in 1992 and 2000. She also has a minor traffic offence. As acknowledged by the respondent this is not a serious criminal history. Nor is it, in our opinion, one which raises any concern about the applicant posing a risk to the safety of children.

(i) The likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition

78. In support of her contention that she did not pose a real and appreciable risk to children, the applicant relied on an expert report of Dr Christopher Lennings, a forensic psychologist. Dr Lennings interviewed the applicant in April 2017 and he reported on that interview about a week later.

79. Dr Lennings’ report is comprehensive in that he sets out his understanding of the “trigger event” and the applicant’s family, education, employment, relationship, fostering and medical history. Dr Lennings also reviewed the documents he had been provided which included the Life Without Barriers investigation report. He conducted a parenting assessment, psychological assessment and a risk assessment. In the concluding paragraphs of his report Dr Lennings said:

92. … [The] most important issue for [the applicant] is the dynamic between caring for vulnerable children and her tendency to be negative and abrasive at times in her manner towards some support services and supervision bodies. It should be pointed out that such abrasiveness seems more following 2013, in part I assume because of the reduction in supports to her (especially following her move to [name of the town]) a change in chemistry between herself and her case worker, and the greater stress acting on her as a result. This does not suggest she is likely to be a person who would cause harm to other children, and in that context her risk is likely low. However, it does suggest that over time the stress of caring for three challenging and vulnerable children exposed her coping flaws, and this has now lead to the current situation.

93. Formulation. [The applicant] presents as a tense woman who is in a stressful situation at the moment, but managing her stress appropriately. On her account she had a traumatic and psychologically abusive background that has established legacy issues for her, including distrust in others, an abrasive communication style, rigid thought patterns, but a strong desire not to be like her mother. She appears to have been a competent and loving parent to her own children, but was mismatched in caring for disadvantaged and challenging children. Although she presents herself as caring and loving to her foster-children, and likely was, she also found it hard to work within the strictures of supervised out of home care (especially after 2013). … The critical issue is whether [the applicant] was as physically abusive as has been claimed. There remains a dispute about these despite substantiation of them by the Department. … Ultimately, if the Tribunal is to accept these claims then there seems little doubt that [the applicant]’s risk in regard to caring for difficult or demanding children will be high. If the claims are not accepted then her risk is low in regard to likely harm to children, despite the caveats mentioned in this report that [the applicant] was ill matched to care for such demanding children and the report of Mr John De Laurence who identified carer burnout as likely contributing to some of the abrasiveness in [the applicant]'s communication. … As I read the documentation [the applicant] was assiduous in promoting what she thought were (child A)'s needs, and the dispute is about the extent to which she could cooperate with people she had taken a dislike to, or perceived as acting against [child A]'s best interest. This likely makes her unsuitable to be a foster carer of demanding children but does not imply a risk of harm to children generally, and it should be noted that having her authorisation to care for children removed adequately (sic) manages the total risk involved in her alleged inadequate care of child A.”

80. Prior to the hearing of the applicant’s application, Dr Lennings was given a copy of the decision of the District Court in Re; a Foster Carer (supra). He gave very brief evidence at the hearing and was asked a few questions in cross-examination by counsel for the respondent. In his oral evidence Dr Lennings said:

1. his risk assessment proceeded on the basis of the allegations made against the applicant had been sustained. Even so, he had assessed her risk to the safety of children as being low;

2. risk cannot go below low;

3. having read the decision of the District Court, he would change his report and remove the last sentence about the applicant being unsuitable to be a foster carer of demanding children; and

4. in his opinion he could not see any appreciable or likely risk the applicant poses to children.

81. We agree with Dr Lennings, on the material before us, that the likelihood of the applicant physically or emotionally abusing a child or children in the manner alleged in 2015 is low. We make that finding on the basis that the applicant is now settled with good family support. She has also acknowledged that she needs ongoing psychological support to address her anxiety and to keep improving her communication style.

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

82. We understand the applicant’s sense of injustice in having her authorisation as a carer and her working with children check clearance being cancelled given the outcome of her appeal to the District Court. However, those proceedings, as pointed out by the respondent, specifically related to her parenting capacity of child A, which was not the issue for determination in this application.

83. While the allegations made by the boys was relevant to the cancellation of her authorisations and the question as to whether she should be granted parental responsibility for child A, the applicant’s parental capacity more generally was not relevant to this application. What was relevant to this application was whether the allegations of the boys gave rise to a real and appreciable risk of harm to children generally in child-related employment. For the reasons we have given, we are not satisfied that the allegations of the boys give rise to a the applicant posing a real and appreciable risk to the safety of children.

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

84. As we have noted, up until the date of hearing, the respondent’s position was that her decision to cancel the applicant’s clearance was the correct and preferable decision. However, at the commencement of the hearing of this application, counsel for the respondent advised that the respondent’s position had changed given the decision of the District Court to one of neither consenting to, or opposing the orders sought.

Can we be satisfied that the applicant poses a risk to the safety of children?

85. For the reasons we have given above, we are not satisfied that the applicant poses a real and appreciable risk to children.

Are we satisfied a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the affected person is engaged in any child - related work?

86. It is accepted that the “reasonable person” in s 30(1A)(a) of the WWC Act would not approach the matter with a closed mind and would apply an objective test to the material that is before the Tribunal and the submissions that have been made: see CZZ v Children’s Guardian [2018] NSWCATAD 56, at [142] to [145]. Additionally, a reasonable person would approach the issues as to risk in the same manner prescribed in s 30(1) of the WWC Act.

87. In this case, in our view a reasonable person would be concerned about the allegations that were made against the applicant in 2015. However, a reasonable person would also have regard to the conduct of the applicant more generally, especially since the alleged events of 2015, the report of Dr Lennings and the decision of the District Court. In our view, taking all these matters into account a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant is engaged in child-related work.

Is it in the public interest to make an order?

88. In ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162, at [20], the High Court (per French CJ, Gummow and Crennan JJ) said:

“The term "in the public interest" is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.”

89. In this case, the main purpose of the WWC Act is the protection of children from sexual, physical or psychological harm and this is achieved by requiring persons engaged in child-related work, be it voluntary or paid, to have their suitability to undertake such work checked by the respondent and if not suitable to be refused a working with children check clearance or have such a clearance cancelled: see ZZ v Secretary, Department of Justice [2013] VSC 267, at [206].

90. Hence, many of the factors relevant to considering whether the applicant poses a risk to the safety of children are relevant to where the public interest lies: see PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455, at [45]. However it might also embrace other consideration.

91. In this application, for the reasons set out above, we are not satisfied that the applicant poses a real or appreciable risk to children and on this basis we find that it is in the public interest to make the order sought.

Orders

92. For the reasons set out above, we find that the decision of the respondent to cancel the applicant’s working with children check clearance is not the correct and preferable decision and should be set aside.

93. We note the WWC Act does not make provision for a cancelled working with children check clearance to be restored on review or reconsideration. Section 22(1) of the WWC Act provides that a clearance ceases to have effect after 5 years unless it is sooner cancelled or surrendered. Section 22(2) makes provision for the holder of a clearance to be able to apply for a “new clearance” within 3 months before the existing clearance expires.

94. Where a person has his her clearance cancelled, s 13A of the WWC Act places an 5 year embargo on that person from reapplying for a new clearance, unless one of the prescribed circumstances arise. These do not include circumstances such as these where the Tribunal sets aside a decision to cancel a person’s clearance.

95. Hence, in these proceedings, where we have determined that the decision of the respondent is to be set aside it is also necessary to make an order that the applicant be granted a new clearance.

Orders

96. Accordingly, we order:

1. The respondent’s decision made on 30 September 2016 to cancel the applicant’s working with children check clearance is set aside.

2. In substitution for that decision a decision is made to grant the applicant a working with children check 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: 31 May 2018