CLE v Children's Guardian

[2018] NSWCATAD 234

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CLE v Children’s Guardian [2018] NSWCATAD 234
Hearing dates:	26 July 2018
Date of orders:	09 October 2018
Decision date:	09 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member L Houlahan Senior Member
Decision:	The decision of the respondent dated 6 December 2016 is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – history of allegations – whether pattern – risk assessment –weight of evidence – conflicts in evidence – whether adverse inference available – whether positive findings can be made – adverse findings about risk of harm – availability of findings in absence of positive findings on allegations
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013 Evidence Act 1995
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 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 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 CDF v Wesley Dalmar, CLE v Wesley Dalmar [2016] NSWCATAD 187 Children’s Guardian v CKF [2017] NSWSC 893 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Jones v Dunkel (1959) 101 CLR 298 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Texts Cited:	Nil
Category:	Principal judgment
Parties:	CLE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: Self Represented (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2017/0023705
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

1. This applicant seeks administrative review of a decision by the respondent refusing his Working with Children Check clearance (WWCC), in that the respondent (the Office of the Children’s Guardian) following a risk assessment, formed the view that the applicant poses a real and appreciable risk to the safety of children and young persons. The applicant sought a clearance under the Child Protection (Working with Children) Act 2012 (the Act), due to the foster care arrangements involving his spouse. This required a clearance for all adults who reside in the home of the foster care placement.

2. On 6 December 2017 the respondent issued a Notice of final decision refusing Working with Children Check clearance under s.20 of the Act. In refusing the clearance the respondent focused on seven Court matters related to an alleged aggravated indecent assault, two counts of aggravated sexual assault and two counts of indecent assault all involving a victim under authority and under 16 years of age. These matters arose in an earlier foster care context between 2011 and 2014, and initially proceeded in August 2015.

3. Initially the nature of the Court matters (for which Court Attendance Notices issued) meant that the applicant was a disqualified person under the Act and his clearance was cancelled by the respondent. Section 18 (1) (b) mandates that persons for whom proceedings have been commenced against for certain serious offences are disqualified persons similar to persons who have been convicted of those offences. However when the serous criminal matters were withdrawn the applicant sought to reinstate his clearance. Notwithstanding that the applicant was no longer a disqualified person, the very existence of these (now withdrawn) matters required the respondent to conduct a risk assessment in accordance with s. 14. While all the criminal matters were withdrawn the respondent noted in their reasons the findings of the Joint Investigation Response team (JIRT) that to the civil standard the applicant had caused ‘sexual harm’ to the complainant. Separate allegations were made in October 2015 involving disclosures from two (of three younger) step-grandchildren concerning ‘sexual abuse’ from the applicant.

4. The respondent appears to have focussed on the seriousness of the allegations and the frequency of the alleged offending in reaching their conclusion that the applicant posed a risk to children. In addition the respondent noted that the Department of Family and Community Services (FACS) recorded the applicant as a person causing harm, and that the Children’s Court had made final orders prohibiting the applicant from having contact with the three step-grandchildren subject of the October 2015 allegations.

5. The Applicant in these proceedings is referred to as "CLE". CLE is the applicant's pseudonym used in these proceedings in conformity with the order referred to in par 7 (below).

6. 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 s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is presently a real and appreciable risk to the safety and well-being of children and young persons. We note that the jurisdiction is protective. As a result of the finding the decision of the respondent will be affirmed and the application will be dismissed.

7. On 2 July 2017 an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Jurisdiction of the Tribunal

8. 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 s 28 of that Act: Commissioner 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 ss 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.

9. The Notice of final decision refusing Working with Children Check clearance under s.20 was issued on 6 December 2016. The applicant stated in his application that he was notified of the decision on 9 December 2016. On this basis, the claim for administrative review filed 5 January 2017 was lodged within the required period and as a result his application for administrative review has been received within time.

The application for administrative review

10. The grounds of the substantive application are:

“1.   None of the matters raised in the attached letter (notice of final decision) have ever been proven.

2.   I have not had any access to any of the files upon which the OCG has relied upon in making their decision. I am being denied procedural fairness in responding to the matters raised.’

11. More detailed grounds were provided in written material submitted by the applicant.

12. The issue to be decided by the Tribunal is whether on the balance of probabilities the applicant poses a risk to the safety and well-being of children. In reaching this position the Tribunal is required to traverse section 30(1) and (1A) of the Act and determine the correct and preferable decision. In addition reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk.

The working with children legislative scheme

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

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

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

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

17. Other provisions of the Act deal with assessment requirements which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)).

18. Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions. 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) A person whose clearance is cancelled by the Children’s Guardian under section 23 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.

(3) A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

(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.

(8)   The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person’s employer.

19. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Section 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

20. The jurisdiction of the Tribunal under s 27 of the Act has been found to be 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].

21. 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].

22. An application pursuant to s 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.

23. As stated above, the Tribunal is required to have regard to the matters contained in s 30(1) of the Act in deciding this issue. (See paragraph 24 above).

24. 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 s 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". ...'

25. 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 s 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.

26. 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].

The hearing

27. The matter was heard on 26 July 2018. By the time of the hearing the applicant did not have legal representation, however during the related proceedings and for a significant period over the 18 months that the matter was pending the applicant had retained a lawyer. The lengthy pre-hearing period appears to have arisen as the applicant sought to obtain legally aided or pro-bono representation, but the Tribunal understands that the attempts were unsuccessful.

28. The respondent was represented at hearing by counsel and instructing solicitors. At the conclusion of the hearing, the Tribunal reserved its decision.

29. As the applicant represented himself, we assisted the applicant’s understanding of our role and the role of the respondent’s counsel, the purpose of evidence in chief and cross-examination. (s-38 (5) Civil and Administrative Tribunal Act 2013). We reminded the applicant of his duty to fully disclose relevant matters to the Tribunal (s.27 (4)), and our obligations to ensure fairness in the hearing to both parties and any witnesses.

30. The applicant gave evidence at the hearing as did the expert report writer Dr K Seildler. In addition both parties relied upon written material.

31. At the outset of the Tribunal alerted the respondent to the fact that the presiding member had determined the care proceedings in late 2015 concerning the applicant’s spouse. Those proceedings set aside the uplift decision whereby the three younger girls were removed from the applicant’s home, with the Tribunal finding that the decision was not in the best interests of the three children.

32. In addition the respondent was alerted to a matter that in those proceedings this applicant gave evidence and was examined about the criminal matters from 2011 to 2014 which were eventually withdrawn. What was never put before the Tribunal however were the subsequent allegations from the three younger girls subject to the ‘uplift’ order. It was not disclosed that in September 2015 and November 2015 (while that matter was before the Tribunal), ‘L’ and ‘J’ disclosed instances of abuse by the applicant.

33. Notwithstanding these matters the respondent submitted that it was appropriate for the Tribunal as currently constituted to hear and decide the current proceedings.

Written Evidence

Applicant’s written material

34. The applicant filed a number of written items in support of his application.

1. Exhibit ‘A 1’: the application for administrative review filed 5 January 2017;

2. Exhibit ‘A 2’: letter from applicant’s former solicitor attaching NSW ombudsman and Children’s Guardian correspondence to CLE’s wife.

3. Exhibit ‘A 3’ Summons by applicant to NSW Police

4. Exhibit ‘A 4’ 5 x personal references from ‘P.S.’, ‘N.H.’, ‘K.R.’. ‘D.W.’ and ‘J.M.’ all filed March / April 2017.

5. Exhibit ‘A 5’ Expert Report of Dr K Seidler 27 April 2017.

6. Exhibit ‘A 6’ Affidavit of applicant 22 November 2017

7. Exhibit ‘A 7’ Children’s Court Clinic assessment report 1 June 2016.

Respondent’s written material

35. The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings under s 31.

1. Exhibit ‘R1’: documents purs s-58 (1158 folios);

2. Exhibit ‘R 2’ : further documents filed 1/9/17 (957 folios);

3. Exhibit ‘R 3’: further documents filed 2/11/17 ( 7 folios).

Brief history of relevant proceedings

36. The applicant and his wife were authorised as out of home carers under s 137 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). They both received a WWCC clearance in July 2013. In August 2015 the three younger sisters were removed from their care, however this decision was set aside by the Tribunal in the ‘care proceedings’ on 3 December 2015. However the children were not returned to the applicant and his wife, and this appears to be due the their carer status having been revoked. In addition their WWCC clearances were by this time not current due to action taken by the respondent.

37. The applicant’s WWCC clearance had been cancelled in August 2015 as by the nature of the 2015 criminal charges the applicant became a ‘disqualified person’ for the purpose of the Act. When the criminal matters were withdrawn in early 2016 the applicant made enquires with the respondent to have his clearance reinstated. The applicant applied to the Tribunal on 16 February 2016 to have the clearance reinstated. However the respondent decided to treat the applicant’s request as a further early application pursuant to s13A (2a) of the Act. On this basis there was no embargo under the Act applying to his application.

36. While the February 2016 proceedings by the applicant and his wife were before the Tribunal the respondent determined to issue a Notice of Interim Bar and Proposed Cancellation of Clearance on 15 April 2016. Due to this re-characterisation of the applicant’s WWCC application from a re-instatement, to a risk assessment leading to a proposed cancellation (coupled with an interim bar), separate legislative provisions and time frames now applied to the matter.

37. Notwithstanding the fact that the respondent deemed a ‘fresh application’ under s13A to have been lodged after the Tribunal application, the respondent proceeded to determine the matter irrespective of the review before the Tribunal. Once the respondent issued the interim bar in April 2016, that subsequent decision had a determinative effect on those Tribunal proceedings. As a result the Tribunal decided that due to the manner and timing of the decisions and application, it lacked jurisdiction to hear the matter.

38. The wife’s matter was dismissed due to there being no reviewable decision. However the applicant’s matter was dismissed due to the application being lodged prematurely (prior to the six month period) provided in respect of interim bars, (s-27 (3)), notwithstanding that the interim bar was issued after the Tribunal application was lodged.

39. If the WWCC clearance had not been reinstated at some time between 25 February 2016 (date of withdrawal of charges) and 15 April 2016 (date of notice of proposed cancellation and interim bar), it is difficult to understand what was proposed to be cancelled and what clearance the interim bar applied to. Perhaps it had been re-instated as at 21 March 2016, the respondent’s ‘deemed date’ of a fresh application. Nothing turns on that issue for these proceedings.

40. In any event possibly due to the uncertainty of his status concerning the clearance, the 2016 Tribunal application was made and pursued in apparent good faith. One outcome of the 2016 proceedings was to clarify the applicant’s clearance status as at the date of decision (19 August 2016) in CDF v Wesley Dalmar, CLE v Wesley Dalmar [2016] NSWCATAD 187.

41. Following that decision the current application to the Tribunal was made (after the expiration of the 6 month period referred to in s 27 (3)). In the interim the Children’s Court had made an order under s.90A of the CARE Act prohibiting the applicant from having any contact or communication with the three step-grandchildren. The section provides:

90A Prohibition orders

(1)   The Children’s Court may, at any stage in care proceedings, make an order (a prohibition order) prohibiting any person, including a parent of a child or young person or any person who is not a party to the care proceedings, in accordance with such terms as are specified in the order, from doing anything that could be done by the parent in carrying out his or her parental responsibility.

(2)   A party to care proceedings during which a prohibition order is made may notify the Children’s Court of an alleged breach of the prohibition order.

(3)   The Children’s Court, on being notified of an alleged breach of a prohibition order:

(a)   must give notice of its intention to consider the alleged breach to the person alleged to have breached the prohibition order, and

(b)   must give that person an opportunity to be heard concerning the allegation before it determines whether or not the order has been breached, and

(c)   is to determine whether or not the order has been breached, and

(d)   if it determines that the order has been breached—may make such orders (including a parent capacity order) as it considers appropriate in all the circumstances.

(4)   The person who is alleged to have breached the prohibition order is entitled to be heard, and may be legally represented, at the hearing of the matter.

44. The above history shows the various legal and regulatory impediments that the applicant has gone through since the August 2015 complaints leading to police action and criminal matters related to child abuse. Irrespective of the applicant being cleared of these matters, or differently expressed – the criminal matters being withdrawn with no adverse finding, if the applicant and his wife seek to remain as authorised out of home or foster carers, one of the requirements is a valid WWCC clearance.

Applicant’s Evidence at Hearing

45. In evidence in chief, the applicant adopted his affidavits of 3 August 2017 and 22 November 2017 and his Statutory Declaration of 29 September 2016.

Applicant’s evidence under Cross Examination

46. In cross-examination the applicant was asked about the allegations that lead to the Court proceedings (the disqualifying and later trigger matters). The applicant gave evidence that the trigger complainant ‘H’ and her brother had been ‘molested by their uncle’.

47. In March 2014 counsel for the respondent alleged that an incident with ‘H’ who was now was 16 years old occurred involving the applicant. The applicant denied the allegations as put to him and gave evidence that at the time he was recovering from a cancer operation.

48. In rebutting the allegations the applicant posed a number of practical matters which in his view diminished the likelihood of the alleged matters occurring. The applicant recovering from cancer as outlined above was an example of this approach. The applicant’s sworn evidence was that at the relevant time he had a friend up visiting from Tasmania and staying in his house so the alleged matters could not have practically occurred.

49. In response to an allegation that the applicant put his hand up under ‘H’s tights the applicant gave evidence that to his knowledge ‘H’ never wore tights. When it was put to the applicant that he went into ‘H’s bedroom the applicant denied this and stated that there was no need to go into the bedroom.

50. The serious allegation concerning digital penetration of ‘H’ was put to the applicant, including that he continued with this act until he heard the kitchen door opening (by his wife). The applicant denied this allegation and noted that they did not have a kitchen door.

51. A further allegation was put to the applicant concerning FACS workers attending the house in November 2014. It was suggested that while the workers were talking to his wife the applicant went into ‘H’s room and held her on the bed and indecently assaulted her by fondling ‘H’s breast and vagina under her clothes. The applicant denied this and said that Department workers were never in the house, just agency workers who in that period were helping ‘H’ with her maths homework.

52. In respect of a further allegation of sexual assault concerning the child ‘J’ the applicant’s evidence was that he was only made aware of this by a caseworker. When questioned about the girls coming into his bed the applicant stated that the only one who ever did this was ‘L’ who would get up early on the weekend and come into his room. The applicant was adamant in his answers in cross examination that ‘J’ never came into his room. When asked about getting into the girl’s bed the applicant stated that never happened.

53. A reoccurring issue during the cross examination was the issue of the applicant being alone with children in the home. The applicant was consistent in his evidence that such a situation never occurred, however on clarification it was clear that the applicant understood the phrase to mean ‘being left alone in the house with the children’, not whether at any time he was alone with one of the girls as in a room for example. However the respondent pointed to a FACS case note in evidence at page 123 of Exhibit ‘R-2’ that inferred that the applicant had denied ever being in any of the children’s bedrooms at any time. The applicant explained that the kids would go in and say ‘good morning’.

Expert evidence of Dr K Seidler

54. The applicant’s expert Dr Seidler gave evidence at the hearing, and provided an expert report and a supplementary report on the applicant’s risk to children. Having read all of the respondent’s further material the expert stated that her opinion of the applicant’s risk is unchanged.

55. In cross examination the expert was asked about the validity factors referred to at paragraph 61 of her report. The expert advised that the elevated scores would usually give the reader the impression that the subject was being defensive.

56. Various questions arose concerning the Static – 99 Risk Assessment and the limitations when applied to persons who are not convicted offenders such as the applicant.

57. In respect of the report the expert concluded that whilst the testing indicated a low risk, because of particular circumstances arising in recent years (where a vulnerable female child is present and in his care),

‘it would be sensible to conclude that (CLE’s) risk is in the Moderate range under particular circumstances that reflect the allegations to date.’

58. The expert qualified in her report that the assessment (referred to above) is predicated on the assumption that the allegations are true. The expert also gave the following insights further at paragraphs 99 and 100 of her report.

99. …. ‘I note that it is possible that (CLE) has never engaged in any sexually abusive behaviour against these children. It would however, be difficult (although not impossible) to explain the consistency and the similarities in the allegations that have been made. Further to this, on the basis of the reported history provided by (CLE) at interview, it would also be difficult to explain how and why he sexually abused three children in his care.

100. The present assessment has suggested that (CLE) is a low risk of engaging in sexually abusive behaviour with children and young people generally but given the nature and extent of the various allegations against him, it would seem reasonable to conclude that this risk is higher for children and young people in his care. I accept that this assessment is incomplete in the sense that I do not have the detailed records of interviews taken with the children and (CLE’s) wife has not been assessed for her account or her ability to be protective. ….

Nevertheless on the basis of the information available to me, and taking into account (CLE’s) age, future plans, capacity for insight and awareness of risk management, it would be conservative to take a cautious approach in this case and not grant (CLE) a Working with Children Check. This I acknowledge, is not on the basis of “Proven fact” but rather, following consideration of three separate sets of similar allegations being made against him.

59. Again the Tribunal observes the expert’s evidence following the supplementary report that having now examined all of the previously absent material her opinion had not changed.

Applicant’s submissions

60. At hearing the applicant submitted that we need to look at all of the evidence and referred to the matters never having been proven.

61. In addition in response to a query by the Tribunal (on the basis of his carer’s authority being cancelled) as to why he sought a clearance, the applicant stated that initially it was sought to reinstate the authorities allowing care for the three girls as was in place prior to the uplift. However over the last three years as this situation had become barred by the various actions of the Department, the respondent and the Children’s Court orders, he now sought the clearance so that he could volunteer in his community. His version was that most entities require a volunteer to hold a valid clearance. The Tribunal notes that this is an increasingly common situation raised with the Tribunal even when the actual volunteer duties do not meet the definition of child related work.

62. The applicant referred to the lack of any written submissions and whether there was anything else that he wished to raise as being somewhat uncertain. The applicant observed that his evidence was prepared some time prior when he still had legal representation. As he had exhausted his funds such representation was no longer available and he placed himself in the hands of the Tribunal.

Respondent’s Submissions

63. The respondent in oral submissions referred to the references (Exhibit ‘A-4’) and suggested that as none of the referees were required to be called, they should be given their full weight (on the face of the document).

64. The respondent noted that the applicant’s spouse had not given evidence in support of her husband and as a result it was open to the Tribunal to draw an adverse inference along the lines of Jones v Dunkel (1959) 101 CLR 298. The respondent referred to the FACS file note at page 124 of Volume 3 of the further documents (Exhibit ‘R-2’) which contained a reference to the wife observing two girls in CLE’s bed.

65. The respondent also submitted at hearing that Dr Seidler’s final written and oral evidence maintains her previous position and that after reading the younger children’s interviews then her position is even stronger. The respondent noted the expert’s reference to applying caution in deciding on a clearance based on the weight of evidence.

66. In written submissions the respondent referred to the Mid North Coast Joint Investigative Response Team (MNC JIRT) of FACS June 2017 assessment of the applicant. In August 2017 that assessment concluded and substantiated the allegations of child sexual abuse and determined that the applicant was a person causing harm. Around this time the Children’s Court at Port Macquarie made the s.90A (Care Act) order prohibiting contact by the applicant with any of the three younger girls notwithstanding that the youngest girl had not made any specific allegations.

67. The respondent also submitted that the allegations by the older two of the three girls (‘J’ and ‘L’) were in very similar terms to the initial allegations by ‘H’. In addition they had made these allegations to police and caseworkers in addition to their carers.

Consideration

Section 30 (1) considerations

68. Section 30 of the Act sets out the factors that the Tribunal must consider in determining a review application. We shall consider each in turn.

(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.

69. The applicant's application to the Tribunal is brought about by an adverse risk assessment triggered by the existence of court proceedings concerning assault offences against a child and sex based offences.

70. We note that none of the trigger matters have been proven to a criminal standard, however some aspects have been ‘adjudicated’ at JIRT level and some findings arising from the allegations have been made by the Children’s Court.

71. The allegations in respect of ‘H’ (the older step granddaughter of the applicant) from December 2010 to November 2014 are extremely serious. They indicate an abuse of trust and serious criminality on the part of the applicant – if they occurred. The allegations involved digital penetration, indecent assaults and common assaults, over a period of four years.

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

72. The matters are alleged to have occurred from December 2010 to November 2014 a period of approximately four years. They commenced almost eight years ago and concluded almost four years ago. Other allegations (not creating the mandatory risk assessment) have arisen in the intervening years. Those matters concern two other step granddaughters of the applicant.

73. As a result the applicant has had further adverse allegations raised beginning in August 2015. These allegations concern indecent assaults on the younger girls. In late January 2016 these allegations escalated to behaviour that is consistent with unlawful sexual intercourse. The escalation being that one of the younger girls (‘J’) had tried to demonstrate on an eight years old girl in the same placement behaviour consistent with unlawful sexual intercourse. When she was prevented from carrying out the behaviour the girl allegedly said that the applicant engaged in that behaviour with her.

74. A further disclosure was made by ‘J’ similar to that in the paragraph immediately above, sufficient for the Department to make a risk of significant harm report concerning the applicant in early June 2017.

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

75. The age of the applicant when the initial disqualifying matters and later risk assessment triggers alleged occurred was 64 years.

(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.

76. The nominated victim ‘H’ was 12 in 2010 and 14 in 2014 when the allegations of behaviour directed at her occurred. That conduct occurred where ‘H’ was a child under the care of the applicant and his wife. ‘H’ was in foster / out of home care and there is some evidence of prior trauma / abuse. All of these matters coupled with the applicant being a physically domineering adult male added to ‘H’s vulnerability.

77. ‘J’ was nine to 10 years old when the behaviour is alleged to have occurred. ‘L’ was seven and a half through to eight years old when the behaviour is alleged. Both were obviously children and the comments re: ‘H’s vulnerability also apply to them. Clearly all three 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.

78. Based on the age range set out (above) the difference in age between the applicant and the children was between 50 and 60 years depending on which victim and the year of the alleged offending.

79. All matters involved a pre-existing relationship between the parties. All of the allegations involved persons well known to the applicant, as either their co foster carer and / or step grandfather.

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

80. The applicant clearly knew that the allegations concerned children. This is evident due to his extended family history (being their step-grandfather) and care history.

(g)   The person's present age.

81. The applicant was almost 72 years old at the time of the hearing. The relevance being that offending (including sexual offending) generally declines with age and significantly past middle age.

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

82. The applicant’s criminal record consists of one larceny or stealing matter occurring over 25 years prior. This matter is of no great significance to the Tribunal. This is not a statement of endorsement of the applicant’s character but couched in the context of the ultimate task that the Tribunal is considering.

83. Since that conviction in 1991 other than the matters identified in these proceedings (including the court matters arising from ‘H’s allegations), there has been no criminal behaviour positively identified and adjudicated upon by a criminal court.

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

84. The Applicant provided an expert report which with the limitations of the technical testing provided a low rating of risk of harm. However the expert qualified that finding and indicated that it would be sensible to conclude that the risk is moderate.

85. However if any offending behaviour was to occur in the future it is clear from the material before us that the impact on children would be significant.

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

86. The applicant tendered a number of character references in support, and the expert report of Dr Seidler. The applicant also provided a statutory declaration and an affidavit of November 2017. The applicant refers to other evidence being the October 2015 affidavit of the Guardian Ad Litem – (GAL) in the 2015 Tribunal Care proceedings (No 1510507), and repeated in the Children’s Court proceedings.

86. The applicant refers to the evidence of the GAL that the younger children were possibly coached by the respite carer or some other persons following the uplift. The observations of coaching concerned what the girl’s mother had told them to say about the applicant and his wife.

87. Various references were provided noting the applicant as sincere, honest and trustworthy and others referring to observing the applicant positively caring for his step granddaughters.

(j1)   Any relevant information in relation to the person that was obtained in accordance with section 36A.

89. There is no material obtained under s 36A.

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

90. The respondent made various submissions concerning the FACS and JIRT findings against the applicant. In addition the s.90A prohibition order by the Children’s Court was relied upon by the respondent. In addition the respondent complied and filed the 2,100 + pages of information relevant to the matter that the Tribunal must decide. The respondent maintained its position that the clearance should be refused.

The statutory approach

91. The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Like the facts in BKE, certain matters in the current case were not settled, in that the Courts had not been a position to make any positive findings on the conduct and the applicant.

92. At pars 29 - 33 of BKE the Court observed:

29. In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Biginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

30. Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at p 70).

31. In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and 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 come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

32. The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

33.The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

Further Consideration

93. 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 (above) at [33]. That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities. Our substantive role is to assess risk, and whether specifically the applicant poses a risk to the safety and well-being of children and young people. We have based our consideration on all of the evidence given by the applicant at hearing (and in documentary form), and for this reason we have set out above some of his evidence at hearing.

Findings

94. We find that the applicant gave his evidence in a frank manner, even though there were, at times, gaps and inconsistencies in his answers. This was particularly so when challenged in cross examination and taken to other evidence.

95. We did not however discern anything deliberately untruthful in his evidence and are satisfied (for the purpose of s-27 (4) ) that as a self-represented person he has complied with his duty to disclose fully to the Tribunal to the best of his ability at hearing.

96. Whilst we did not detect any concerns we remain unsure as to whether the applicant was entirely truthful in his answers however we observe that in respect of the initial allegations concerning ‘H’, his version was broadly consistent with the written version and his evidence in the 2015 Care Act proceedings before the Tribunal. We note that none of these matters have been tested before the criminal Courts.

97. In respect of the serious allegations concerning ‘H’, we find that we are unable to make a positive finding as to whether these matters occurred. That is not to say that none of those matters occurred, or that some of those matters occurred. We make that finding because of the conflict in the evidence, the inability to test the evidence further, and a lack of understanding of the cogent reasons for ‘H’ making the allegations and then declining to proceed. All those factors contribute to this position.

98. Whilst we understand some of ‘H’s motivation for making the complaints to police (protecting younger siblings from applicant), that does not fully assist us in reaching a positive finding that the allegations are factual or not. On one of ‘H’s allegations (the alleged incident on 29 November 2014 we find that this allegation would appear unlikely on balance. That allegations concerning significant assaults and indecent assaults of ‘H’ in her bedroom whilst two FACS Caseworkers were present in the house. Of all the allegations this one seems least likely, but we do not make a finding that it did not occur, rather that it illustrates a significant problem with the evidence in the untested form available.

99. We therefore find that we are unable to make a positive finding in respect of ‘H’s suite of allegations.

100. In respect of the allegations involving ‘L’ and ‘J’ we find that we are in a similar situation to the lack of a positive finding concerning ‘H’s allegations. The veracity of the detail and consistency of the allegations is on the one hand compelling, and we note that this was observed by the expert.

101. However coupled with that is the evidence of the GAL in the NCAT Care proceedings in her affidavit of 25 October 2015, that in her independent view the girls were being coached in their answers and what to say in respect of Nan and Pop. We also note the significant developmental deficits that these girls had prior to and at the time of the allegations and the making of the affidavit.

102. We also note that late October 2015 (when the GAL affidavit was deposed), was part way through the time of the allegations being made by the younger girls, but that from that time on any contact was supervised and those girls were not returned to the applicant and his wife. The relevance of these observations is that those disclosures may have been made in a somewhat tainted environment, although we decline to make any finding to that effect due to the lack of sufficient evidence.

103. We also note that notwithstanding the JIRT report and findings no prosecution was commenced arising from the complaints of abuse by the younger girls.

104. In our view, for all of the abovementioned reasons we are unable to make a positive finding as to what occurred, predominantly due to the conflicts in some of the evidence, and the inability to test it further in any meaningful way.

105. We have not drawn any adverse view from the lack of evidence by the applicant’s wife. We note in particular that there was some evidence of her observations in the FACS material, and also observe that the applicant has exhausted his means for legal representation. We note that the applicant and his wife both gave evidence in the Care proceedings before the Tribunal in late 2015 which dealt in substance with all of ‘H’s allegations including other relevant matters concerning the safety and welfare of children.

106. Our preliminary conclusion therefore on the allegations is that we are unable to make any positive findings.

107. However notwithstanding the lack of any positive finding, we have had particular regard to the Risk of Significant Harm report and the s.90A Care Act order of the Children’s Court. We have also had significant regard to the second or more conservative opinion of the expert.

108. In our view due to the lack of conditions that may be imposed on a clearance, these matters provide significant evidence of probable risk of harm from the applicant to the younger girls. We must have significant regard to these matters in determining whether the applicant is a risk generally to the safety and well-being of children and young persons.

109. Based on a consideration of all of the evidence, we are not satisfied that the applicant does not currently pose a real and appreciable risk to children. In our view, on the evidence and material before us, and having particular regard to the fact that the applicant has been barred from having any contact with his step granddaughters, we find that the applicant poses a risk to the safety and well-being of children.

110. In making this finding we have had regard to the weight of evidence. We also note that whilst there is no definitive evidence that we have made positive findings on concerning the applicant harming children, that does not mean that there will be no basis for concluding risk per M v M. Rather, our finding is that the risk of him harming children in an unsupervised context is in our view on the weight of evidence significant.

111. In our view the risk is greater than that of any adult harming a child. In reference to the observation of Young J in the case of ‘V’, at [42] we are of the view that the risk is significant and therefore real and appreciable.

'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". ...'

112. In consideration of real and appreciable risk based on consideration of all the circumstances we find that the applicant does pose a risk to the safety and well being of children and young persons.

113. 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 s 4 of the Act.

Section 30 (1A) consideration and findings

114. The respondent referred to these provisions in their submissions. In our view, having regard to the background to the refusal (as set out at pars [36] – [44] above), and noting the terms of the decision under review, in our view these provisions do not apply to this review.

115. The Notice of final decision refusing Working With Children Check clearance pursuant to s.20 dated 6 December 2016 giving rise to these proceedings, lists the date of application for the clearance as: 27 June 2013.

116. It is our understanding that the s30(1A) amendments only apply to applications to the Guardian made after the enactment of those amendments in November 2015.

117. The section provides:

(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.

118. If we are wrong in this analysis then in our view the matter is not of great consequence, having regard to the finding that we have made concerning the applicant’s risk to children. Section 30 (1A) is only traversed if the Tribunal decides that an applicant for review (or and enabling order) is not a risk to children.

119. For completeness we would find that a reasonable person knowledgeable of all the evidence and material that we have considered in our review would not allow the applicant to have unsupervised access to children.

120. In respect of the public interest, noting the revocation of the carer’s authorities of the applicant and his spouse, and in particular the s.90A order against the applicant, we would make a finding that the granting of a clearance was not in the public interest.

Conclusion

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

122. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant poses a risk to the safety and wellbeing of children.

123. In our view, having regard to all of the material before the Tribunal, the applicant currently poses a risk to the safety of children.

124. It therefore follows that the application for review should be in practice dismissed and order made that the decision of the respondent be affirmed.

Orders

1. The decision of the respondent dated 6 December 2016 is affirmed.

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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

Amendments

11 October 2018 - Paragraph 112 "not" deleted.

Decision last updated: 11 October 2018