CMQ v Children's Guardian

[2017] NSWCATAD 358

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CMQ v Children’s Guardian [2017] NSWCATAD 358
Hearing dates:	01 September 2017
Date of orders:	12 December 2017
Decision date:	12 December 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member Prof E Foreman, General Member
Decision:	(1) The decision of the respondent dated 9 February 2016 to cancel the applicant’s Working with Children Check Clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – Working with children – Criminal history – Offences of violence – Child victims – Assault
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998 (Repealed) Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Records Act 1991
Cases Cited:	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 CGP v Children’s Guardian [2017] NSWCATAD 12 BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 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 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:	CMQ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00377964
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, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR decision

Introduction

1. On 29 March 2016 the applicant applied for administrative review in the Tribunal of a decision of the respondent to cancel the applicant’s working with children check clearance. That decision was made on 9 February 2016.

2. The Applicant in these proceedings is referred to as "CMQ". CMQ is the applicant's pseudonym used in these proceedings in conformity with the order referred to in par 4 (below).

3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is currently 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 must be affirmed.

4. On 12 May 2016 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, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

5. The jurisdiction of the Tribunal under Part 4 of the Child Protection (Working with Children) Act 2012 (the Act) is protective and not punitive in nature, as set out by the Court when considering 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.

6. These proceedings arise because on 9 February 2016, the Children's Guardian made a decision to cancel CMQ’s Working with Children Check Clearance (the Clearance). The applicant stated in his application that he was notified of the decision on 9 March 2016. We note that this is exactly four weeks after the date of the cancellation decision.

7. No explanation appears to have been provided for the delay in transmission of the decision to the applicant. In addition, no argument has been ventilated by the respondent that the applicant was notified at an earlier time. In the absence of any evidence to the contrary, the application was notified to the applicant on 9 March 2016. On this basis, the claim for administrative review needed to be lodged on or before 6 April 2016. The application was lodged on 29 March 2016, and as a result his application for administrative review has been received within time.

Background

8. In June 2014, the applicant applied for the Clearance. The applicant required the Clearance for his employment in the area of disability support. The Clearance was granted shortly after the application. As his initial application was made prior to November 2015, it is arguable whether the provisions of s 30(1A) of the Act apply to these proceedings. We will however (for reasons of relevance and efficiency) not consider this issue in these reasons. There are a number of first instance decisions which agitate the correct approach to the applicability of s 30(1A).

9. In that regard, s 30(1A) only comes into play in a practical context if the Tribunal finds that, based on the evidence and material before it, an applicant does not currently pose a risk to the safety and well being of children and young persons. For completeness, we note that the respondent advised the Tribunal that as the cancellation decision ‘post-dates’ the amendment enactment on 2 November 2015 the s 30(1A) provisions are applicable if the Tribunal determines that the applicant is not a risk.

10. After granting the Clearance in 2014, the respondent became aware in April 2015 of matters which occurred in between December 2013 and December 2014. These matters equated to a ‘trigger offence’ creating an assessment requirement as described in the Act. The criminal matters are as follows:

1. The applicant assaulted his stepdaughter by throwing a hard object at her head in December 2013 following a disagreement. He was convicted and given a s bond under s 9 of the Crimes (Sentencing Procedure) Act 1999.

2. Over 12 months from September 2014, the applicant was alleged to have assaulted his stepson by punching him in the face. He was convicted and given a s 9 Bond.

3. On the last day of school in 2014, the applicant assaulted his stepdaughter allegedly due to her failure to obtain specific grades in her school results. The applicant was convicted and given a s 9 Bond.

4. In December 2014, the applicant assaulted his then wife and mother of the stepchildren when she was intervening in the applicant's behaviour as described immediately above. The applicant was convicted and given a s 9 Bond.

5. An ADVO issued in respect of these offences protecting the victims referred to in those offences. In January 2017 a final ADVO was issued against the applicant. The applicant remains under that ADVO as at the time of the hearing, which expires in the New Year.

6. Following his successful appeal in June 2017 prior to this hearing all offences were found proven without proceeding to a formal conviction. The section 9 bonds and convictions were set aside by the District Court which substituted with s 10 conditional orders.

11. The offences were commensurate with offences listed in Sch 1 of the Act, requiring the respondent to conduct a risk assessment of the applicant pursuant to s 15 of the Act. Section 15 relevantly provides:

15 Assessment of applicants and holders

(1) The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

12. During the period following the notification in 2015 to early 2016, the respondent conducted its own risk assessment of the applicant. On 20 December 2015, the respondent notified the applicant of its proposal to refuse his application by way of a Notice of Proposed Cancellation of Clearance.

13. The respondent then concluded the assessment in February 2016 and on 9 February 2016 issued a Notice of Cancellation of Working with Children Check Clearance under s 23 of the Act.

14. As a result of the assessment, the respondent was satisfied that the applicant posed a risk to the safety of children and cancelled the Clearance, due to the inability to discharge the provisions of s 18(2) of the Act following further risk assessment. In reaching that position, the respondent was required to make findings in respect of the matters required under s 15 of the Act. These findings were made on the papers after seeking further information from the applicant. The section is applicable for cancellations, due to the reference to the term ‘holders’ in the words of s 15.

15 Assessment of applicants and holders

…..

…..

…..

(4) In making an assessment, the Children’s Guardian may consider the following:

(a) the seriousness of any matters that caused the assessment in relation to the person,

(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 offence or conduct at the time it 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 matters occurred,

(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,

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

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

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

15. The respondent found that the applicant’s record that triggered the risk assessment was of a serious nature and that there were multiple charges and convictions in relation to serious physical assaults in a domestic violence context involving at times children. Other assaults occurred at times in the presence of children. The respondent noted that the applicant did not provide any information by way of mitigation in the risk assessment process.

The application for administrative review

16. The grounds of the substantive application are:

“Cancellation of my working with children check”.

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

18. The issue to be decided by the Tribunal is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting or refusal of a clearance in relation to the applicant: see s 63 of the Administrative Decisions Review Act 1997 (ADR Act).

The working with children legislative scheme

19. 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.

20. 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.

21. 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.

22. 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.

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

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

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

26. Part 4 of the Act deals with reviews and appeals. Section 27 provides for the administrative review by the Tribunal of decisions of the Children's Guardian including a decision of the respondent to refuse a clearance: s 27 (1). That section relevantly provides:

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

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

(2) ………...

(3) ………...

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

(5), (6) (Repealed)

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

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

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

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

30. An application pursuant to 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.

31. In addition, in this case there is no presumption that the applicant poses a risk to children, as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s 28 of the Act.

32. In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk.

33. 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 27 above). Section 15(4) sets out the criteria, which the Children's Guardian may consider. The Tribunal in its administrative review considers similar criteria in that s 15(4) and s 30(1) are drafted in similar but not identical terms. An important distinction is the word "may" in 15(4) and "must" in s 30(1); see par 14 above.

34. 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". ...'

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

36. 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 Issue to be decided

37. The primary issue is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a clearance in relation to the applicant: s 63 ADR Act

The Hearing

38. The matter was heard on 1 September 2017. The applicant did not have legal representation. The respondent was represented at hearing by counsel and instructing solicitors. At the conclusion of the hearing, the Tribunal reserved its decision. As the applicant represented himself, we assisted the applicant’s understanding of the role of the respondent’s counsel, the purpose of evidence in chief and cross-examination. We reminded the applicant of his duty to fully disclose matters to the Tribunal and our obligations to ensure fairness in the hearing to both parties and any witnesses. We are satisfied that both parties (and in particular the applicant) were afforded the requisite procedural fairness in the conduct of the proceedings.

38. The applicant gave evidence at the hearing. No other witness was called at the hearing. Both parties relied upon written material.

Written EvidenceApplicant’s written material

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

1. Exhibit ‘A 1’: the application for administrative review dated 21 March 2016 filed 29 March 2016;

2. Exhibit ‘A 2’: a three page typed statement with annexed SMS and police statement records;

3. Exhibit ‘A 3’: a Character / Professional and Reference from ‘P.L.’ (undated);

4. Exhibit ‘A 4’: a reference from an indigenous medical service in coastal NSW dated 27 February 2017;

5. Exhibit ‘A 5’: a reference from ‘M.H.’ dated 28 February 2017; and

6. Exhibit ‘A 6’: a signed statement from the applicant of 17 July 2017 annexing SMS records.

Respondent’s written material

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

1. Exhibit ‘R-1’: being the s 58 documents filed 7 June 2016;

2. Exhibit ‘R-2’: being documents obtained under s 31 of the Act filed 3 April 2017; and

3. Exhibit ‘R-3’: being further s 31 documents filed 14 August 2017.

42. Whilst the respondent did not call any witnesses, substantial cross-examination of the applicant occurred at hearing.

Submissions

43. The respondent filed detailed written submissions prior to the hearing and both parties made oral submissions at the conclusion of the evidence.

Applicant’s Evidence at Hearing

44. In evidence in chief, the applicant adopted his statements (Exhibits ‘A-1’ and ‘A-6’) as true and correct. His evidence was that he came to Australia in July 2013 and met his future wife via the Internet. (This person is now the applicant’s ex-wife but will be referred to in this summary of the evidence for ease as his wife.) His evidence was that he received a story that this woman was abandoned by her husband and had three children of African background and wanted the applicant to move in with the family.

45. Prior to this the applicant was living at a Catholic Refugee Service in the inner city of Sydney and his wife would come there to visit him. The applicant’s evidence was that he met the woman’s children on a few occasions and then thought seriously about her request. In November 2013 he moved in and one week later noticed his wife’s behaviour begin to change and the presence of a ‘disturbing attitude’.

46. The applicant’s evidence was that he thought of leaving his wife at that time and soon after his wife advised him that she was pregnant. The wife described the unusual behaviour apparently as being down to hormonal issues arising from the pregnancy. The applicant stated in his oral evidence that as he had never lived in the same house as a pregnant woman, then he accepted this explanation.

47. In about January or February 2014, his wife suggested marriage. The applicant’s evidence was that he did not want to marry at that time as he had only fairly recently arrived in Australia. However, eventually he came around to her way of thinking. In March 2014, the applicant married. The applicant’s evidence was that once married, his wife immediately placed restrictions on the applicant.

48. The applicant stated that he was not allowed to go out, to hold down a job or to do anything unapproved by the wife. The applicant’s evidence was that he was ‘basically made to stay at home like a sex slave.’

49. In respect of the pregnancy, the applicant gave evidence that he asked to go to the hospital to see the Doctor for the regular pregnancy check ups with his wife, but she refused. His wife suggested that the applicant come off his refugee visa on to a supporting spouse visa or a partnership visa. The applicant’s evidence was that things went further downhill at this time.

50. The applicant gave the following evidence at hearing. Apparently the doctor told the wife that the babies (twins?) were due in August. Then this changed to September, then October and then November without any babies. The applicant at that time asked his wife whether she was really pregnant. The applicant said that he telephoned his wife’s older sister ‘S’ to talk about the pregnancy and his home problems. The applicant stated that ‘S’ advised that she had no knowledge of any pregnancy, and told the applicant that she ‘would not interfere because she (the wife) is my sister’, but apparently added some advice that the applicant should try and get out of the relationship.

51. The applicant gave evidence that he had made arrangements to go and see a real estate agent and the wife was ‘mad’ and he could not leave the house. Leading up to the trigger incidents, there was a dispute about the keys and he needed to come back to get his belongings. During this dispute the wife kept hitting the applicant until he called triple 0. Then the wife stopped hitting him and the applicant got into his car. His wife got angry again and then 000 called back on the applicant’s phone.

52. When the police responded to the 000 call, officer Doubleday and another officer arrived. They made the applicant sit outside the house and kept him waiting. The police did not speak to him at first but whispered amongst themselves so that the applicant could not hear what was being said and only spoke to the wife. Then police asked the applicant if he had called 000 and then they told him that he was under arrest.

53. The applicant gave evidence that he spent 12 hours at the police station and was charged to go to Fairfield Court. After the first Court date the matter went on for months. The applicant’s evidence is that his wife went back to police at a later time and ‘drafted’ a whole new set of allegations against him. The first charge was dismissed but the second charge continued on until he was finally convicted in January 2017.

54. The applicant gave the following evidence about the evidence used to convict him: ‘Their words were not much, but because they said them, that is why I was convicted.’ The applicant stated that he appealed to the District Court and the Judge removed his conviction and placed him before Corrective Services. We understand this to mean that the sentence was varied in that the formal convictions were set aside and without proceeding to a fresh conviction the applicant was placed on a conditional s 10 Bond.

Applicant’s evidence under Cross Examination

55. In cross-examination the applicant was asked various questions about his past and general background. In respect of when he started using his current name, the applicant advised that it was prior to coming to Australia – around about 2010. The applicant was taken to part of Exhibit ‘R-3” where he stated in a letter that his origin was ‘Mali’. When challenged about the discrepancy in his heritage (offering Nigerian background) the applicant stated that he possesses what is referred to as ‘dual nationality’. The applicant says that he became naturalised in both regions in Africa and it is a time based process.

56. When asked about his date of birth, the applicant nominated 1976 but the respondent pointed to evidence that it was 1980. When asked when and why the applicant changed his name, the applicant answered that it was due to political instability in Nigeria and that the other date of birth was a mistake. When asked why he kept using the false or incorrect date of birth knowing that it was so, the applicant advised that because it was printed in his Passport, he thought it best to use that date and not cause further problems for himself.

57. When pressed further on his integrity, the applicant stated that the Children’s Guardian never called him, he called the Children’s Guardian following up issues. The applicant’s evidence was that his name or date of birth was never discussed between the parties. The applicant denied being called by any other name by the Children’s Guardian, such as (‘D.E.’).

58. The applicant was taken to an Administrative Appeals Tribunal (AAT) case concerning his residency status, whereby the AAT determined that an African Court of Appeal document relied upon by the applicant in the assessment was a false document. It was put to the applicant that the Department of Immigration returned two out of the three tendered documents to the applicant (including his passport), but the third document was retained as they had ruled it was a bogus document. The applicant stated that this was partly correct, but that all three documents originated from the same source, the Bamako Court of Appeal (in Mali).

59. The applicant was taken to the details of an Apprehended Domestic Violence Order (ADVO) issued in May 2015 and lodged before the Tribunal by the respondent. He was also taken to the AAT hearing records from December 2016. The applicant agreed that the date of birth was 1980 (not 1976). Evidence arose concerning further discrepancies in the date of birth. The early 2017 Court records make reference to the applicant being 39 years old. However, on any assessment at that time the applicant was either 40 or 41 (not 39). On this issue, the respondent’s position was that the applicant was disingenuous and untruthful in his responses and misleading the Tribunal. In addition, it was suggested that he was breaching his duty to fully disclose matters to the Tribunal.

60. The applicant suggested in his evidence that the ‘false records’ were perpetuated because that is the official record adopted and it is a big issue to change the record once the error was made at the time of arrest and charge.

61. In cross-examination it was put to the applicant that his evidence in chief about his spouse’s actions and demands ‘begging him to move in’, and ‘making him a sex slave’, were false. The applicant denied this, and stated that the ‘XXX’ (Catholic religious order) refuge do not ever throw you out of the refuge, they say that if you want to stay for longer than three months then let us know.

62. The respondent took the applicant to the Local Court material from October 2016. It was suggested that none of this evidence about being begged to move in, or sexual servitude was raised in that evidence. The respondent put to the applicant that he came to Australia on a ‘prospective partner visa’ and that as a result marriage was in his thinking. The applicant answered that was true but not marriage in the circumstances of his marriage to ‘K’. (Wife)

63. The applicant denied all of the assault allegations when they were formally put to him by the respondent’s counsel. On the day of arrest, ‘Doubleday’ was the name of the officer who spoke to the wife in the house. The material in Exhibit ‘R-2’ indicated that the other officer stayed with the applicant while only Doubleday went inside and spoke to the wife. This was in contrast to the applicant’s evidence in chief.

64. The respondent suggested to the applicant that he hit the three children regularly. The applicant denied this. The applicant was taken to a text message that he sent to ‘M’ which said ‘tell ‘N’ (a child) that I will belt him if the flowers are not watered’. We note that that text was never presented to the Court.

65. The applicant was questioned about his parole conditions as set by the District Court Judge. There was a suggestion that he undertake an anger management course. We observe that the applicant declined to directly answer this question and kept referring to the fact that his parole was ultimately ‘signed off’. The applicant eventually disclosed that he did not undertake such a course.

66. Various details of some of the allegations were put to the applicant by Counsel. Various references such as taking ‘M’ the 12 year old daughter of his wife to the shops to buy toiletries were put to him. In addition, there were references to telling the 12 year old that she ‘need(ed) to smell good down there for the boys’, and similar inappropriate remarks bearing in mind age and context. The applicant denied this.

67. The s 31 material obtained by the respondent detailed numerous concerns of the wife about the identity and motives and background of the applicant: see Exhibit ‘R-1’ at pp 110 – 112. That material contained a reference to text messages to the applicant from another woman. The applicant gave details about his current partner ‘B’ and that they had been together for some time (months). However, the District Court Judge ordered the applicant to reside at a particular address on the north coast in June 2017. However by July 2017 the applicant was living in a southern suburb of Sydney. When asked why he was living at that location the applicant stated that is where ‘B’ lives.

68. The applicant gave evidence that he told Probation and Parole that ‘B’ has children but that they are all adults. He had also lived in the Riverina but not with a girlfriend.

69. The respondent took the applicant back to the issue concerning his identity: see p 73 of Exhibit ‘R-2’ is letter from the Department of Immigration and Border Protection of January 2015. That correspondence indicates that the applicant’s date of birth is 1980 and his nationality is Nigerian. The Department rejected the 1976 DOB and Mali nationality on the basis of biometric evidence.

70. The Tribunal invited the applicant to re-address on any matters that arose in cross-examination by way of re-examination. The applicant gave evidence that sometime in 2014 the Department of Immigration wrote to him to ascertain whether he is the same person (re the two data sets). His wife got hold of the letter. He was working for a disability service and got a call from Merrylands police. The applicant’s evidence was that he surrendered / submitted everything to the Department of Immigration.

71. The Tribunal asked questions of the applicant about the stated pregnancy of the wife. The reason for this is that the evidence in chief was unclear. In answer to specific questions by the Tribunal, the wife told the applicant that she was pregnant in December 2013. The applicant ultimately decided that the wife was not / never pregnant in March 2015. In response to this evidence the applicant stated that the wife went back to the doctor she said that she got the dates wrong, and that she was first aware of being pregnant in June 2014.

72. The applicant was asked when he might have made his wife pregnant to which he answered that they had sex back when he was still at the refuge. The applicant also gave up the name of the Doctor from Westmead hospital to verify aspects of that story.

Respondent’s Submissions

73. The respondent in oral submissions referred to the Department of Immigration evidence which says that the fingerprints belong to another individual. The respondent submitted that the Tribunal must be unable to accept the applicant’s evidence.

74. In addition, the Local Court Magistrate and District Court Judge decided the matter (concerning the assaults) beyond reasonable doubt. It was submitted that the Judge’s comments when sentencing were not evidence of the facts, but they were satisfied that the prosecution witnesses gave evidence to prove the matters beyond reasonable doubt.

75. The respondent also took the Tribunal to the evidence in the transcript of the Court where the applicant gave evidence. From an examination of that evidence it was submitted that there were significant differences to the evidence given by the applicant before the Tribunal. The applicant was able to come and go and study for a Certificate III in aged care, and a Certificate from Nursing and Training Services. A Certificate IV in disability services was also obtained from TAFE. In addition the applicant had worked from time to time (including work experience placements) up until the ‘trigger incident’ in April 2015.

76. The respondent submitted that when all of the available evidence is considered the references in the text messages to ‘belting’ were relatively common.

77. The respondent submitted that given the protective policy of the legislation, and that the grant of a Working with Children Check Clearance would permit the applicant to undertake any child related work unsupervised – then the Tribunal should not grant the clearance.

Applicant’s Submissions

78. The applicant submitted that he had no other criminal matters other than those considered in the cancellation decision. This submission referred to both Australia and overseas. The applicant also submitted that he had been in contact with the Department of Immigration in respect of the biometrical matters.

79. The applicant submitted that the respondent had been in contact with the three or four organisations where he had worked. He submitted that they had been unable to find any adverse matter relating to child protection, and that nothing relevant had been raised by his employers.

80. The applicant submitted that in the short time in Australia he had worked with a broad range of vulnerable persons without incident. These included the young, the old, and immobile and wheelchair bound as well as individuals on the autism spectrum. In all of those positions the applicant submitted that he had performed his job professionally.

81. In respect of some of the issues not raised by him at Court, such as the pregnancy, the applicant’s explanation by way of submission was that these were raised when he was initially before the Court at Burwood, which was the dismissed matter. However the later charges filed, which were dealt with at Fairfield, were separate. The Fairfield material was in the respondent’s material filed in the proceedings.

82. In addition the applicant submitted that because of his Bond he has followed every instruction given to him. The applicant submitted that since he was placed on the ADVO in 2015 he has never contacted any person seeking protection under an order applying to him. (No breaches).

83. The applicant also submitted that if he was of a questionable character, then such issues would have arisen by now, as he had been four years in Australia.

84. In addition, the applicant took the Tribunal to folio 102 of ‘R-1’ (the police record – criminal history bail report) whereby it shows both dates of birth and names for the applicant. This it was submitted was evidence that both were disclosed.

85. The applicant submitted that he needed to clear his name and that he was not a risk to children nor had he posed any form of risk and harm to children.

Findings

86. We note that the matters in the applicant’s recent history were positively found (as a matter of judicial record). However, we note that the applicant does not accept this position / outcome.

87. We have had regard to all of the evidence and submissions in these proceedings, even if we do not refer to all of that information specifically in these reasons. In particular, we have had detailed regard to and consideration of the evidence given at hearing. We find that the applicant did not give his evidence in a candid manner, in that some aspects of his evidence were so fanciful that we cannot accept those answers as true.

88. We sought on numerous occasions at hearing to have the applicant clarify certain facts (not matters central to the actual trigger matters) being matters giving rise to the troubled domestic environment (such as the wife’s attitudinal position as asserted by the applicant), what she required of the applicant, (various restrictions and servile behaviours) and his reasons and acceptance of same for staying with his spouse in such a context (the purported pregnancy). Whilst we refrain from making a formal adverse finding on his evidence at the Tribunal hearing, we note that his version of events was rigorously tested in the criminal proceedings. Whilst we note the applicant’s persistent maintenance of his innocence in the criminal matters, we are of the view that the positive findings by the Court should be accepted. We make such a finding on the basis of our own consideration of the evidence and material before us, and noting the significant absence of any evidence led in chief or examination concerning the applicant’s version of events. We are unsure whether the applicant is able to advance the version in any cogent manner. Exhibits ‘A-2’ and ‘A-6’ in our view provide a limited insight into the matter.

Section 30 (1) considerations

89. 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.

90. The applicant's application to the Tribunal is brought about by an adverse risk assessment of him by the respondent. The applicant’s adverse risk assessment is a combination of offences and matters which did not proceed to offence determinations. Those offences included the two assaults of his daughter, the assault of his step-son, and the assault of his wife. Each assault included acts of physical violence.

91. These are clearly serious matters bearing in mind the context even though the matters are capable of being dealt with summarily.

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

92. The allegations relate to matters of violence in the context of domestic violence. The offences occurred between December 2013 and December 2014.

93. In the time since those offences occurred the applicant was accused in April 2015 of assaulting members of the family. Allegations including allegations of intimidation were also made. These matters involved allegations that primary school aged children had been assaulted. These matters were dismissed at Court.

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

94. The applicant’s age has been a live issue in these proceedings. It would appear that the applicant was aged 33 - 35 at the time of these matters.

(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.

95. The child victims in the allegations and charges were aged 10, 13 and 14 at the time. The adult victim was 45 years old at the time of the offence committed against her in 2014. The applicant was in authority over the children as their stepfather. As the applicant was an adult and the victims were children, they are considered vulnerable in that context. The wife was vulnerable in that the applicant was a male and she was female.

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

96. Based on the age range set out (above) the difference in age between the applicant and the child victims was between 26 and 22 years. All of the applicant’s victims were persons well known to him, his spouse or her family. The applicant was approximately 8 or 9 years younger than the adult victim.

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

97. The applicant was the spouse of the adult victim and the stepfather of the child victims. In this context, the instances where children were involved, the applicant clearly knew that they were children.

(g) The person's present age.

98. As set out above, this was a somewhat contentious issue, as the applicant’s bona fides was a live issue during the hearing. At the time of the hearing the applicant appears (based on the evidence) to have been 36 or 37 years old.

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

99. The applicant’s criminal record comprises the matters set out at par 10 above. Whilst all of the formal convictions were set aside, it is arguable whether the applicant possesses a criminal record in respect of the Criminal Records Act 1991 which relates to convictions. However, his criminal history sets out four Court findings of offences proven. All of those matters relate to assaults on women and children.

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

100. The Applicant provided a number of references and letters of support but no expert or genuinely objective evidence in the matter. The evidence before the Tribunal shows incidents of domestic violence involving adult and child members of the same family in recent years. The real basis for the violence remains largely unknown to the Tribunal due to the significant conflicts in the versions contained in the evidence and submissions before the Tribunal.

101. The applicant remains under the supervision of the Court and Parole Service and is still under the terms of his sentence. This is indicative of the recent context of the offending. It is difficult to conclude on the available evidence whether the risk will increase or decrease next year when the applicant is (presumably) no longer subject to conditions and supervision. In addition we note that an order remains in place in respect of protecting his victims.

102. If the offending behaviour was to reoccur it is clear from the material before us that the impact on children / child victims would be significant.

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

103. The applicant tendered a number of character references in his support. He also provided written material which was adopted in evidence. This later material predominately attests the applicant’s innocence of the charges and maintains his position that he does not present a risk or threat to children. The character material is (in our view) merely supportive of certain facts relating to his immigration status and his satisfactory occupational and community functioning. It does not disclose knowledge of the relevant matters in the Notice of Cancellation, nor does it address the matters in dispute between the parties in these proceedings.

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

104. There is no evidence of any relevant material under this section. Whilst the immigration material might have in part originated from overseas, the Commonwealth material only goes to identity matters. This observation is made noting the short period that the applicant has lived in Australia.

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

105. The respondent made various submissions and tendered a large volume of material arising under s 58 of the Administrative Decisions Act 1997 and s 31 of the Act. The respondent maintained its position that the clearance should be refused. In addition, they submitted that little weight could be attributed to the applicant’s evidence including character references.

The statutory approach

106. The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. Unlike the facts in BKE, the vast majority of matters in the current case were settled, in that the Courts had made positive findings on the conduct and the applicant did not resile from that position. In addition, BKE concerned an enabling order under s 28 of the Act whereas the current matter is a s 27 application where the applicant bears no overall onus (other than a duty to fully disclose). In the current matter, the applicant is not presumed to be a risk to children.

107. 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.

Consideration

108. 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 much of his evidence at hearing in detail. We refer to our observations about the nature of that evidence.

109. We acknowledge the applicant’s motivation in seeking a review of the respondent’s decision to maintain his occupational areas and facilitate his ability to engage in meaningful employment. For a person immigrating to Australia from a difficult and somewhat troubled background, we acknowledge the pro-social and public interest in such persons advancing their circumstances. However, the regime under which these proceedings operate is concerned with limiting the risk of harm to children.

110. We have in particular had regard to the sentencing remarks provided by the respondent, the fact that this is a protective jurisdiction, and the serious and violent nature of the applicant’s recent criminal history. We also note the involvement of children as victims (in our view) the lack of a sufficient passage of time since, and the limited weight which we can give to the material filed in support. As a result we remain concerned at the applicant’s level of risk and suitability to remain safe with children. Whist his compliance with the coercive orders against him stand in his favour, and even though there is no presumption that the applicant is a risk (as this is not an application for an enabling order), the evidence leads us to have concerns.

111. Based on a consideration of all of the evidence, we are satisfied that the applicant currently continues to pose a real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we so find.

112. In consideration of real and appreciable risk based on consideration of all the circumstances we find that the correct and preferable decision is that the applicant does pose a risk to the safety and well being of children and young people. 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. In making these findings, we are of the view that whilst the applicant appears to have limited insight into the impact that his violent past behaviour has had on his victims, and the effect of such behaviour on children, having considered his evidence at hearing, and post hearing written submissions, we are not satisfied that at this stage there has been a sufficient passage of time since the cessation of his violent offending.

Section 30 (1A) consideration

113. The section (if applicable) does not require formal consideration due to our finding as to risk. The section requires the reasonable person to allow his or her child to have direct contact with the affected person that was not directly supervised by another person whilst engaged in child related work. In addition the section requires that the making of the order be in the public interest.

Conclusion

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

115. The evidence and material received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety and wellbeing of children.

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

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

Orders

1. The decision of the respondent dated 9 February 2016 to cancel the applicant’s Working with Children Check Clearance 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

Decision last updated: 12 December 2017