CNQ v Children's Guardian

[2017] NSWCATAD 7

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CNQ v Children’s Guardian [2017] NSWCATAD 7
Hearing dates:	26 August 2016
Date of orders:	26 August 2016
Decision date:	04 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hon G Mullane ADCJ Principal Member B Field General Member
Decision:	(1)The decision of the Children’s Guardian of 23 November 2015to refuse the applicant a Working With Children Check Clearance is affirmed. (2)Publication or broadcast of the name or other identifying information of the applicant, his wife, or any child referred to in the evidence without the leave of the Tribunal is prohibited.
Catchwords:	Child protection- Working with Children Check Clearance - refusal – review – risk - decision affirmed
Legislation Cited:	Child Protection Legislation Amendment Act 2015; Child Protection (Working With Children Act 2012; Adoption Act 2000; Crimes Act 1900; Administrative Decisions Review Act 1997
Cases Cited:	M v M [1988]166 CLR 69; BKE v Office of Children’s Guardian [2015] NSWSC 523; Commission For Children and Young People –v- V [2002] NSWSC 949
Category:	Principal judgment
Parties:	CNQ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Mr I Fraser (Respondent) Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	1610283
Publication restriction:	Publication or broadcast of the name or other identifying information of the applicant, his wife, or any child referred to in the evidence without the leave of the Tribunal is prohibited

reasons for decision

Introduction

1. In May 2015 the applicant [CNQ] applied to the Children’s Guardian for a Working With Children Check Clearance.

2. The Children’s Guardian found that [CNQ] was subject to an assessment requirement because of an offence in 1998 found proved by a court.

3. The Children’s Guardian obtained considerable information for the assessment. In the course of the investigation the attempts by the Office of the Children’s Guardian to contact [CNQ] were unsuccessful. He was asked to detail his version of events in relation to sexual abuse allegations against him, but did not do so. He failed to respond to repeated requests by the Office of the Children’s Guardian to provide information in relation to his risk assessment.

4. The Children’s Guardian concluded [CNQ] posed a risk to the safety of children. The Children’s Guardian notified [CNQ] of the decision to refuse a clearance by letter dated 23 November 2015.

5. On 28 April 2016, [CNQ] filed an application in the Tribunal for an administrative review of the decision of the Children's Guardian refusing the application.

6. The application to the Tribunal was lodged out of time, but the time for filing the application was extended to 29 April 2016 at a directions hearing in June 2016.

7. This was the hearing of the review application.

Evidence

8. The evidence before the Tribunal comprised:

• Review application form filed 29 April 2016;

• Letter from the Children's Guardian to the applicant of 22 October 2015;

• Letter from the Children's Guardian to the applicant of 23 November 2015;

• Reasons for decision attached to letter of 23 November 2015;

• Letter from Hallam & Littlewood to the applicant of 14 June 2016;

• Account from Hallam & Littlewood to the applicant;

• Handwritten details provided by the applicant;

• Reference from District Rescue Squad;

• Reference from Jan Slade dated 17 June 2016;

• Statutory declaration of the applicant of 16 June 2016;

• Section 58 bundle of documents indexed and tabulated filed the Children's Guardian on 2 June 2016 (334 pages);

• Section 31 Response from NSW Police iAsk;

• NSW Police Response regarding apprehended violence orders;

• Section 31 Response from NSW Police Sex Crimes Squad;

• Section 31 Response from District Rescue Squad;

• Additional Section 31 Response from the Department of Family & Community Services filed 29 July 2016;

• Further Section 31 Response from District Rescue Squad filed 23 August 2016;

• Additional Section 31 Response from the NSW Ombudsman filed by the respondent on 23 August 2016; and

• Oral evidence of the applicant on 26 August 2016.

Relevant Legislative Provisions

9. On 28 September 2015 the Child Protection Legislation Amendment Act 2015 (“the Amendment Act”), which in Schedule 2 set out amendments to the Child Protection (Working With Children Act 2012 (“the Act”), was assented to. It provided that it commenced on subsequent dates by proclamation. The first of those proclamation dates was 2 November 2015. The relevant amendments to the Act in the Amendment Act do not apply to this application because the application was made on 25 May 2015 before the commencement of any of the amendments in the Amendment Act. Also the Amendment Act specifically provided that amendments to sections 16(2), 26 and 30 and Schedule 2 of the Act would not apply to enabling applications filed before the commencement of those amendments (see clauses 16,17,19 and 22 of the Amendment Act).

10. Accordingly the relevant parts of the Act applied as before the Amendment Act amendments and the following discussion proceeds on that basis.

11. Section 4 of the Act provides:

“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.”

12. Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in “child-related work” for purposes of the Act.

13. Section 8 requires that a worker must not engage in child-related work unless the worker holds a “Working with Children Check Clearance” of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an “interim bar”.

14. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.

15. Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act 2000. It provides in s11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work.

16. Section 12 provides that there are two classes of Working with Children Check Clearances which are:

• Volunteer – authorising workers to engage in unpaid child-related work; and

• Non-volunteer – authorising workers to engage in paid and unpaid child-related work.

17. Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance.

18. Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is “a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult”. Section 4 defines “conviction” as including a finding that the charge for an offence is proved, even though there is no conviction.

19. The Act defines an “adult” as “a person who is 18 years of age or older”.

20. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in schedule 1 apply to the person. The Children’s Guardian asserts that in this case the trigger for an assessment falls within subclause 1(4) of schedule 1, being:

"the person has been convicted of an offence under Section 61 of the Crimes Act 1900 committed against a child"

21. The trigger offence was a common assault on a 14 year old boy committed by [CNQ] in July 1998. He was charged with common assault under Section 61 of the Crimes Act 1900 in respect of that incident in July 1998. Although he was not convicted, the offence was found proved and he was dealt with without conviction on the condition that he entered into a bond in the sum of $500 to be of good behaviour and not assault, molest or harass the 14 year old victim.

22. Under Section 5 of the Act "conviction" includes a finding that the charge for an offence is proven, even though the court does not proceed to a conviction.

23. The Children’s Guardian undertook an assessment.

24. Under Section 16 the Children’s Guardian may request further information from an applicant for a clearance related an offence or other matter related to the application or clearance and may terminate an application if the applicant without reasonable excuse fails to provide such further information within 6 months of the request.

25. The Children’s guardian requested the applicant to provide further information, which the Applicant did not provide.

26. Section 27 is in Part 4 of the Act and provides that a person refused a Working With Children Check Clearance by the Children’s Guardian may apply to this Tribunal for a review of the decision of the Children’s Guardian. Subsection 27(4)of the Act provides : “An applicant must fully disclose to the Tribunal any matters relevant to the application.”

27. Subsection 30(1) of the Act applies to reviews. It provides:

1. The Tribunal must consider the following in determining an application under this Part:

1. 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,

2. the period of time since those offences or matters occurred and the conduct of the person since they occurred,

3. the age of the person at the time the offences or matters occurred,

4. 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,

5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

6. whether the person knew, or could reasonably have known, that the victim was a child,

7. the person’s present age,

8. the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

9. the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

10. any information given by the applicant in, or in relation to, the application,

11. any other matters that the Commission considers necessary.

28. Section 63 of the Administrative Decisions Review Act 1997 applies to the review and it provides:

63 Determination of administrative review by Tribunal

1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

1. any relevant factual material,

2. any applicable written or unwritten law.

2. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

3. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

1. to affirm the administratively reviewable decision, or

2. to vary the administratively reviewable decision, or

3. to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

4. to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

The Seriousness of the Offences or any matters that caused a refusal of a clearance

29. The Children's Guardian in the reasons for the refusal set out the following matters:

In making the assessment of risk, the Children's Guardian has considered the following mattes referred to in s15 of the Act.

You have a concerning workplace record for sexual misconduct / grooming which occurred on 19 December 2010. NSW Ombudsman's Office information records that between 2008 and 2010 you engaged in sexual misconduct including rubbing a child aged between 13 and 15 years in your care on the vagina, and making her touch you on the penis. NSW Police substantiated sexual abuse allegations, however no further action was taken as the child did not wish to proceed criminally. The record is still regarded as serous. In 2012 it is alleged that you were involved in the use of physical discipline and driving with children in the car while under the influence of cannabis. This allegation was sustained following the investigation by the Joint Investigation Response Team (JIRT) namely NSW Police and the Department of Family & Community Services. Additionally, in 1998, court facts record that you (aged 38 years) grabbed a male victim's (aged 15 years) throat and threatened him with violence. You pushed the victim backwards and struck the victim's stomach using your knee. You were convicted of common assault for this offence.

You are now aged 56 years and It has been 5 years since your most recent workplace records. The totality of your workplace records and offences are regarded as serious as they involve children. The risk regarding these records are heightened by the fact that there is no current information to demonstrate that you no longer pose a risk to children since these events.

On 13 October 2015 you informed the Risk Assessment Office that NSW Police did not substantiate sexual abuse allegations against. You were invited to submit information to detail your version of events. You have failed to respond to repeated requests by the office of the Children's Guardian to provide information in relation to your Risk Assessment. You have not provided any information to demonstrate that you would not pose a risk to children upon engaging in child-related work. You have not provided any information about your circumstances which challenges the risk these records demonstrate. The information before the Children's Guardian is reliable and persuasive on the balance of probabilities, the Children's Guardian finds that you pose a risk to the safety of children.

30. The allegations will be dealt with separately.

1. Assault of a 14 year old boy in 1998.

1. At the time of the offence, the applicant was 38 years of age. The victim ("Victim 1 ") was 14 years of age;

2. The police version of the facts, which was tendered at the hearing in the Local Court, described the events as follows:

1. 3:20pm as he turned into his street, [CNQ's wife] , approached him and spoke to him about her son [CNQ's son], who is 17 years old. A minute later then [CNQ] drove into the Street. He got out of his car and ran over to [Victim 1]. He grabbed [Victim 1]'s throat with his hand, and said "I'm about ready to smash you, and if I do you won't get back up". At the same time he pushed [VICTIM 1] backwards and then struck [Victim 1]'s stomach using his knee. [Victim 1] stumbled backwards. [CNQ] then said "Have you got that now, [Victim 1]". [Victim 1] then walked home and informed his mother. Police arrived at 4:15pm and spoke to [Victim 1] obtaining a signed statement. Police then attended [CNQ’s] address and there spoke to [CNQ]. He admitted to hitting [Victim 1] in the stomach with his knee, but said he did not hit [Victim 1] very hard, he agreed that he grabbed [Victim 1] by the shirt, hot the throat. Police had earlier noted red welts around [Victim 1]'s throat on his right side. [CNQ] declined to be interviewed further and was issued with a field CAN.

2. The assault occurred because [CNQ] believed that [Victim 1] had assaulted his son a few days previously, [CNQ] later found out that it was another young boy who assaulted his son.

3. [CNQ] stated that about one year ago [Victim 1] had caused him problems when he had a young female exchange student living with him, and that he was still angry about that.

4. [CNQ] stated that he believed that he was well within his rights to strike the young victim and never considered involving the police.

5. When police first spoke to [Victim 1] he was visibly shaken, he was crying and sobbing, his face was very red. He complained of pain in his stomach. [Victim 1] is a student at a local school.

3. In his statutory declaration of 16 June 2016, [CNQ] responded by saying:

"I agree that I assaulted him, but he suffered no injury, and even the court at the time believed I deserved only to be put on a Section 10 good behaviour bond. The circumstances of that incident were that my son had told my wife and me that [Victim 1] had been harassing and intimidating him. When I was driving home and saw my wife …. in a heated argument with a young man who towered over her in height and he was pointing his finger in her face. They were both yelling. I immediately pulled over and ran between them, pushing [Victim 1] away from my wife with my hands on his shoulders and I kneed him to push him back away. I deny hitting him. I accepted at the time, and I accept now, that my actions on that occasion were more than what would have been required to protect my wife and break up the argument, but I say this is being nearly 18 years ago now, it not objectively serious as it caused no injury to [Victim 1]".

4. There was no evidence that CNQ’s wife was in any physical danger from the 14 year old boy. CNQ’s version of the events alleging that the 14 year old was “pointing his finger in [CNQ’s wife’s] face” is contrary to what the police recorded. The police record says that when CNQ arrived, his wife had approached approached the boy about her son. There is no mention of any argument or of the boy pointing his finger in the wife’s face. [CNQ] was cross examined at the hearing. He testified that he pleaded guilty to the charge. It does not appear from the records of the court and the police that are in evidence that he dissented in any way from the police version of the facts. He conceded in cross examination that he "vaguely" recalled seeing the police fact sheet at the time, and conceded that he probably did say what it says he said. But he then said that he did not grab the boy by the throat. He said "from what I remember, I grabbed his shirt collar". In the witness box he gave a different version that did not include allegations of an argument of of the boy pointing a finger in the wife’s face. He said he saw the boy and his wife talking, but he couldn’t hear what they were saying. Then he said they were arguing and the boy was pointing his finger in her face.. But he did concede that he pushed the boy back and struck him in the stomach with his knee. He said he “vaguely recalled” saying to [VICTIM 1] 'have you got that [Victim 1]?'". He said that the police arrived at his home about 1 hour after the incident. He denied causing any red welts to the throat of the boy. He said that he thought [Victim 1] had assaulted his son. When it was put to him that he had found out subsequently that that did not occur, he replied "not that I recall".

5. He confirmed that [Victim 1] had caused him problems when he had a young female exchange student living with them. But he said in his evidence that he now does not think that his reaction was proper and he said that he telephoned the home of [Victim 1] the next day and apologised.

6. The Tribunal is satisfied on the balance of probabilities that [CNQ] was not provoked and that he pushed the boy backwards, grabbed him by the collar of the boy’s shirt and kneed him in the stomach while saying, "I'm about ready to smash you, and if I do you won't get back up". The police observed red welts on the boy’s neck and the boy alleged [CNQ] grabbed him by the neck, but [CNQ] denied this. The Tribunal finds on the balance of probabilities that there were red welts occasioned to Victim 1’s neck by [CNQ] grabbing him by his shirt collar or neck.

4. Whilst the Tribunal is not satisfied on the balance of probabilities that [CNQ] did grab the boy by his neck, it is not satisfied on the balance of probabilities that he did not. There is a real possibility that he did. The Tribunal is also concerned that although [CNQ] admitted the assault, said that it was motivated by a mistaken belief that Victim 1 had assaulted [CNQ’s] son, and apologised to Victim 1 and his family at the time, [CNQ] told the police that he was within his rights to assault the boy. The police recorded the observed physical and emotional state of the boy and his distress at the time. [CNQ] has since minimised the physical, psychological and emotional impact of the assault on the boy. His subsequent attitude has demonstrated little insight into the consequences of his conduct on the victim or empathy for the victim. He also appeared to recently still blame the victim for his own conduct.

2. August 2006 - Allegations of Physical assaults on Child A and other children.

1. [CNQ] and his wife have been foster carers of children since about 1988. In cross examination [CNQ] said the only physical discipline he used on children in his care, including his own children, was "a smack of the hand" or "a tap on the backside". He said that this was not done on a regular basis and as the children grew older, other methods were used, such as sending them to their rooms.

2. In August 2006, 3 children who were in foster care with [CNQ] and his wife were taken by car by a transport worker for an assessment. When the transport worker returned them home, he told [CNQ] that the children had been misbehaving. He reported to the Department of Community Services that [CNQ] said to 2 of the children:

"well youse know what youse are in for now then, don't youse. Because you know we will not put up with it".

3. He then put his hand under the chin of girl A and said "you found out on the weekend didn't you?"

4. One of the children told the transport worker that "[CNQ] gave [A] a big smack on Saturday because she wouldn't pick her things up: it was a big one too".

5. When [CNQ] was asked in cross examination about the allegation of him smacking [A] on the weekend, he said he couldn't remember it.

6. The evidence establishes on the balance of probabilities that [CNQ] smacked A on the weekend and threatened the 3 children with physical discipline.

3. 28 January 2010 – Allegation by male foster child that [CNQ] and his wife burnt him.

1. There is evidence that such an allegation was made by the boy and he showed marks on his elbow. [CNQ] and his wife denied the allegation. The allegation was found by DoCs to not be sustained. The evidence is so limited that the tribunal could not be satisfied that the allegation is true or that there is any prospect that it was. The finding on the balance of probabilities is that it did not occur.

4. 8 December 2010 at 2.50 pm.- Allegations by child D of sexual assaults / grooming by [CNQ] of her:

1. Allegations were made by the foster child [D] in the care of [CNQ] and his wife in 2010. [D] alleged in an initial disclosure on 8 December 2010, when she was 15 years of age, that [CNQ] had been sexually assaulting her. A’s subsequent interview with a FACS caseworker included the following:

[D] said:    you know the carers who have been looking after me? The father has been touching me and I don't like what is happening.

Officer said:    have you told anyone? Have you told the escort, your mum, your caseworker?

[D] said:    no, I haven't told anyone because I've told so many lies no one is going to believe me.

Officer said:    do you want me to go with you to speak to the escort while there is someone with you?

[D] said:   no

Officer said:   What do you want me to do?

[D] said:    I will leave that up to you.

2. Caseworkers interviewed [D] at her high school on 9 December 2010. A relevant part of the interview is as follows:

[D] said:    [CNQ] has been touching me and he makes me touch him. I didn't want to tell anyone. When I was visiting [her natural mother], I told [her natural mother her].

Officer said:    What did you tell [her natural mother]?

[D] said:    He touched me 2 nights ago. I was lying on my tummy. He puts his right hand down and touched me on the vagina and then grabs me and he unzips his zipper and makes me touch him.

3. Officers of the JIRT team had also spoken to [T] ( another foster child living in the home) at her high school on 10 December 2010. She said that there were no problems at home and asked to leave. After she left the room, the officers waited in the front office of the school. A short while later [T] ran into the front office. The officers recorded:

"[T] screamed at us: ‘She is nothing but a liar. That bitch is making it up. I hate youse, stay away’"

4. They then had some discussions with [T] and the conversation proceeded:

[T] said:    Why didn't you say anything. She told me. She is a liar. It's not true.

Officer said:    What just happened [T]?

[T] said:    [D] told everyone that she is moving. You told her she has to move now. I heard it through my friend so I told my friend to go and ask her why she was moving and [D] said 'cause dad is touching me'. It's fucking bullshit, he would never touch us, he has never. He would not hurt us. She is a liar.

Officer said:    So what happened then?

[T] said:    I said to her 'what dad? Our dad?' and she said 'yes, our dad'. I called her a bitch and a liar. You dragged me in here and you haven't said anything to me. I want to know now what is going on. Is she moving?

Officer said:    We talked with [D] today and she is upset about some things. It is likely that she might have to move, but we don't know what is happening yet. We don't know things for sure yet. We need to know [T], are you safe at home?

[T] said:    (screaming and crying) Yes!

Officer said:    Has dad done anything to hurt you or touched you?

[T] said:    No, I hate you. You have ruined my life. Now everyone at school thinks dad has touched me. He hasn't. Don't come near me again. I hate DOCS.

[T] left the room crying.

5. The JIRT officers had a subsequent longer interview with [D]. In the course of that interview, the following relevant exchanges occurred:

[G] said: Hi [D] just wanted to see how things were going with you at school and at home. How's home going?

[D] said: Good but I've been in trouble a bit lately.

[G] said: why have you been in trouble?

[D] said: I've been lying to mum lately

[G] said: what did you lie about?

[D] said: I took my 'I Pod' to school and mum found out, mum asked me if I had it with me and I said no.

[K] said: what did mum do then?

[D] said: Mum was upset that I lied because I lied before as well and she told dad

I lied. Sometimes I get into trouble because I lie.   

[K] said: tell me about what it's like at home for you [D] said: It's good

[K] said: Who lives in your house?

[D] said: Mum, dad, [T], [A], [S] and C.

[K] said: Who's mum and dad?

[D] said: You know [CNQ]'S wife and [CNQ], my carers.

[K] said: What's the good things about living with mum?

[D] said: Mum really cares about us, mum gives us nice; things [K] said: What are the nice things about living with dad?

[D] said: I don't know

[K] said: can you think about something good about dad?

[D] said: no.

[K] said: Well tell me what the not so good things are about dad?

[D] said: mum tells him what has happened and he does our punishments?

[K] said: tell me something else that's not so good about dad?

[D] said: that's all

[K] said: what happens when you're in trouble?

[D] said: mum tells dad and 1 have to wait in the hallway until he comes home

[K] said: what does dad say when you're in trouble?

[D] said: dad tells me I am grounded

[K] said: is there anything else you want to tell me about toad or about being a home?

[D] said: no

[K] said: [N], your old Caseworker from Muswellbrook office phoned me and asked us to come and make sure that you are ok because she was a bit worried about you. Why would [N] be worried about you?

([D] bursts into tears)

[D] said: Dad has been touching me and he makes me touch him, I didn't want to tell anyone.

[K] said: Do you know about truth and lies?

[D] said: yes, when you're telling the truth you are not telling a lie

[K] said: If I say this table is round would that be a truth or a lie

[D] said: that would be a lie

[K] said: why would that be a lie

[D] said: because the table is a rectangle and it is not round

[K] said: do you agree to tell the truth today?

[D] Said: yes I agree to tell the truth

[K] said; Is there anyone else you have told this to?

[D] said: [nil]

[K] said: what did you tell

[D] said: What I just told you

[K] said: When was the last time [CNQ] touched you?

[D] said: two nights ago

[K] said: Do you know what time it was?

[D] said: He woke me up. he came and woke me up.

[K] said: Who sleeps in your room

[D] said: No one. [T] has her own room now.

[K] said: Do you know what the time was when he came into the room?

[D] said: No I have no clock in my room just an I Pod to tell the time.

[K] said: What could you hear?

[D] said: Nothing. Dad stays up, mum goes to bed and reads books.

[K] said: Tell me what happens after mum goes to bed

[D] said: He came in, woke me up and just touched me

[G] said: What were you wearing that night?

[D] said: Pyjamas and top

[K] said: What could you see

[D] said: Nothing

[K] said: What happened then?

[D] said: He tapped me on the back

[K] said: What happened then?

[D] said: That's why I think I've been misbehaving so much lately.

[K] said: Can you tell us were he touched you?

[D] said: In the vaginal area

[K] said: How did he touch you?

[D] said: He put his hands down my pants

[K] said: Whereabouts was his hand?

[D] said: The top of my vagina.

[K] said: Was it the front or back?

[D] said: The front, down the front of my pants.

[K] said: What happened then?

[D] said: He unzipped his pants and he just left, turned the kitchen light off, to bed

[K] said: What did he do when his hands were down your; pants?

[D] said: Just grabbed me

[K] said: how did he grab you?

[D] said: he rubbed me

[K] said: With which hand?

[D] said: the right hand then he made me touch him

[K] said: When did he do that?

[D] said: Wednesday night.

[K] said: When he was he touching you what happened?

[D] said: He took his hand out and then left the room. I haven't told mum.

[K] said: You said he made you touch him what did he make you do?

[D] said: He made me undo his pants.

[K] said: Where were you when this happened?

[D] said: In bed.

[K] said: At what time do you unzip his pants?

[D] said: I don't know.

[K] said: Before you said he unzipped his pants. What happened did you unzip is pants or did he?

[D] said: He made me.

[K] said: Tell me how were lying in bed, what way were you facing?

[D] said: .I lay on my tummy. I always sleep that way. My arm (motioned her right arm) is under the pillow and my other arm (motioned her left arm) is out. He is near my bedside table next to my bed.

[G] said: Draw me a picture of your room.

([D] drew a picture of her room, where she lies in her bed and where Greg w at the time.)

[K] said: So you are in bed, what are you doing?

[D] said: Just laying asleep.

[K] said: Is there anything said to you? Does dad say anything to you?

[D] said No.

[K] said: Do you say anything to dad?

[D] said: No, when I am in a bad mood, I say, “don’t touch me”.

[K] said: What does he do when you say that?

[D] said: He still does it.

[K] said: So you said he makes you touch him?.

[D] said: Yes

[K] said: What did you do that night on Wednesday night?

[D] said: He unzipped his pants,

[K] said: I am a bit confused you said earlier that you unzipped his pants?

[D] said: Well he unzipped his pants and then makes me touch him.

[K] said: What exactly does he make you do? Tell me everything.

[D] said: He unzips his pants and then grabs my hand.

[K] said: Which hand?

[D] said: This hand (held up her left)

[K] said: Then what happened?

[D] said: He makes me touch him.

[K] said: What does he make you touch?

[D] said: His penis.

[K] said: Describe what it felt like?

[D] said: horrible, really horrible. Cause mum says I am too young to have a boyfriend.

[K] said: When you touch his penis what did you touch?

[D] said: The penis.

[K] said: Did he have undies on?

[D] said: It was in the band of his undies and then he took it out.

[K] said: Did you touch the skin on his penis? What did you feel?

[D] said: The skin, yes. It has not just been the once; it's been a lot of times.

[K] said: What happened to his penis when you were touching it?

[D] said: I don't want to say.

[K] said: what was [CNQ] doing when you were touching his penis?

[D] said: He was rubbing me with his hand (motioned left hand)

[K] said: Where was he rubbing you with his hand?

[D] said: On my vagina.

[K] said: How did he do that, how were you lying?

[D] said: I was lying on my tummy and he was reaching around me and had his. hand under me.

[K] said: Tell me what happens when you touch him?.

[D] said: Don't know.

[K] said: What happens then?

[D] said: He puts it back in his undies then zips it up and leaves the room.

[G] said: Does he say anything after it or the next day?

[D] said: No. But he asks me what kind of undies I am wearing and tells me not to wear undies to bed.

[K] said: When does he ask you that?

[D] said: When I am in bed

[K] said: When was the last time he asked you, not to wear undies.

[D] said: Don't know. It started this year and going on ever since.

[K] said: When did it first happen?

[D] said: I think it was when I was on holidays when it started.

[K] said: So it started on holidays, was it hot or cold at the time?

[D] said: It was hot, last summer.

[K] said: How do you know it was last summer?

[D] said: Because we always go to the Bay at Christmas and we were at the Bay.

[K] said: So it was on the school holidays at Christmas last year?

[D] said: Yes, the very first time he touched me I was up the Bay in the van.

[K] said: Where in the van were you?

[D] said: In the annex. You walk in and straight ahead there is the double bed and two single beds. I sleep in the top bunk, [T] sleeps in the bottom bunk.

[K] said: So he was touching you while you were on the top bunk.

[D] said: Yes.

[K] said: Who was sleeping in the annex?

[D] said: No one was in the annex, everyone was talking to mum.

[K] said: So where was everyone else?

[D] said: mum, dad and everyone were in the caravan. I was in the annex.

[K] said: Where were you exactly when this happened?

[D] said: I was lying on my back when he first touched me.

[K] said: What happened?

[D] said: He put his hand down my pants.

[K] said: Did he say anything?

[D] said: No

[K] said: Did you say anything?

[D] said: No.

[K] said: It's very important that you tell me everything, I know it's hard to talk about details of what happened, but it is very important that you tell me everything

[D] said: I don't want [mum] to know

6. [CNQ] denies the allegations by D. He and his wife, when interviewed by FACS officers on 22 December 2012, offered an explanation that the allegations are inventions by D because of her interest in boys, her involvement in sexual texting, her increasing resistance and rejection of behaviour rules they sought to impose, payback for punishment, and contact with her half brother who lives in Queensland. There is virtually no evidence corroborating such serious allegations and there is a problem about past lies by D weighing against her credit. But similarly there is no evidence other than [CNQ’s} denials that directly contradicts D’s allegations and no evidence that corroborates those denials.

7. D alleged that often at night CNQ’s wife goes to bed before him and reads, while CNQ stays up and watches television. According to the transcript CNQ’s wife told the FACS officers “If I have a shower he is still behind me. If he’s still watching TV, I read in bed.” But [CNQ] told the FACS officers “ Me and [his wife] go to bed at the same time, kids go to bed at the same time, I usually disturb [his wife] as she’s a light sleeper”. The tribunal finds on the balance of probabilities that CNQ’s statement that he and his wife go to bed at the same time was knowingly false.

8. The Department of Family and Community Services found D’s allegations of sexual assault ”substantiated”. They are serious allegations. Because of the limited evidence, the lack of any police investigation and the absence of any cross examination of D and of any serious cross examination of [CNQ], the Tribunal is not able to find on the balance of probabilities that any of the alleged sexual assaults on D occurred or that any of them did not occur. It is possible that one or more did occur.

5. (6)   5 March 2012. Allegations by Child T (then 15 years and 8 months) that "[CNQ]'s wife grabbed her and pushed her into a bookcase during an argument.

1. The argument was about chores the child was asked to perform around the house and said she didn't want to. She went to the part-time employment at McDonalds Restaurant and then had her girlfriend drive her to a station. She was refusing to return to the home to [CNQ] and his wife, she said she was scared to do so, and said she would run away if forced to return to the house.

The FACS officers did not identify any visible injuries on the child when they met her.

[CNQ]'s wife spoke with police officers at 11:00pm on the night of 6 March. She said that T had not been following household rules – she had a boyfriend and was spending time chatting with him, she had been arguing a lot with [CNQ]'s wife. [CNQ]'s wife denied that she pushed the child.

The police spoke to T on the telephone and she said that she did not want to return to the home. She said that if she went home, they would hurt her.

[CNQ]'s wife told the FACS officers that T wanted to change to the same school as her new boyfriend in order to be closer to him. Also T had been having problems at her work. She had had an argument with a customer and the management gave her a warning. She had also abused the management staff and she had been asked to attend an anger management procedure.

T again refused to return to the home of CNQ and his wife at about midnight on 6 March. Later that night, T was transported back to the home of [CNQ] and his wife. In interviews with officers from FACS, T refused to return to the carer's home, insisted that she wanted to live with her boyfriend, and said that she couldn't understand why she couldn't do this.

She said that she had been “punched and kicked and bashed' by the carers. She said that next she 'would be dead'. She then refused to discuss the issues further. T refused to return home to the foster carers, saying she is scared and if she goes back she will run away. She told a FACS officer that if she went home “they would hurt” her. She alleged CNQ’s wife pushed her into a bookcase during an argument. In an interview with FACS officers She said she had been “punched and kicked and bashed” and next she would be “dead”. CNQ’s wife denied that. She attributed arguments and ongoing conflict with T to T’s relationship with a boy and her refusal to comply with house rules and the requirements of the foster parents about her activities outside the home. No injuries were observed. With assistance of Police and FACS, T eventually returned to the home.

The evidence was not sufficient for the Tribunal to be satisfied on the balance of probabilities that the alleged bookcase incident did occur or that it didn’t.

13 March 2012 Allegations by child B in FACS interview of physical assaults on Child B.

Caseworkers from the Department of Family & Community Services interviewed [B] on 13 March 2012. At the time she was 6 years of age.

In the interview she told officers that [CNQ] "smacks me and hits me on the bottom". When asked, she said he did it with his hand and demonstrated with an open hand.

She said that she had once had mark from a smack. When asked, she said there was more than 1 mark.

She said she had seen him hit foster child, [T], who had left the home a week before. She also said that [CNQ]’s wife had squeezed her cheeks and it hurt. She said she couldn't remember when it happened.

When she was asked what happens "when you are naughty?", she replied "I have to sit on the chair for 5 minutes". She said that "sometimes [J] stays on the chair, but if she moves she has to stay there longer”.

She denied that she gets a smack and is sent to the chair. She said "no, just a smack OR the chair".

[CNQ] denies any physical discipline that marked B. The Tribunal could not be satisfied that any smack on B caused anything lasting mark. The tribunal is not satisfied that any smack of B by [CNQ] constituted abuse or unreasonable force, but it is evidence that physical methods of discipline were used by [CNQ].

13 March 2012 Allegations by child T of physical assaults on Children A and T.

[T] was interviewed by officers of the Department of Family & Community Services. She told the officers that in 2011 [CNQ] smacked [A] on the back of her hip, and that caused "a massive hand mark and a scab where he had hit her". [T] also said that [CNQ] had hit her and [A] in front of his other daughters.

[CNQ] gave the respondent a written statement in response to these allegations, denying he had hit the children.

The Department's officers concluded that it was unlikely that a hit with an open hand would leave a mark that formed a scab, and that in any event the alleged conduct of [CNQ] was unlikely to result in any significant harm or injury to the children. It was considered that the level of force used by him was "not beyond trivial or negligible".

The Tribunal also finds that the allegation of an injury that formed a scab is not credible. On the evidence the Tribunal does not conclude that there was conduct by [CNQ] of A or T that constituted abuse.

Given the limited evidence, the Tribunal could not be satisfied on the balance of probabilities that any of the allegations was proved or disproved.

13 March 2012 – Allegations by T against [CNQ] and his wife of physical abuse of T and B and drug use. T was interviewed on 13 March by officers from FACS.

In the course of that interview she made the following allegations:

She alleged that in December of 2011, [CNQ] had 'picked her up and thrown her'. She said 'he picked me up by my throat and back and dropped me on the floor". She said that he said whilst doing this 'not to talk to his wife like that'.

That [CNQ] had hit B on the back of her head 'the blood rushed to it and scabbed from where he hit her'.

That when [CNQ]'s wife does B’s hair 'she pulls her hair hard and if she moves her head then she will grab her face really hard and make her stop moving. B is crying everyday from being hurt getting her hair done'.

[CNQ] has 'anger management issues'.

[CNQ]'s wife will tell her daughter 'to yell at [B] because [B] doesn't listen to [CNQ]'s wife'.

One day when T was in the bathroom, [CNQ]'s wife came in 'and she grabbed my throat. She was choking me. I pushed her away and because she has high blood pressure or something she got a bruise. She told me she had taken a picture of it and was going to tell [FACS]'. This was in 2011

[CNQ] is smoking marijuana and drives the car with T and B in the car whilst smoking marijuana.

[CNQ] stores marijuana in the lounge room and also in the car.

That [CNQ]'s wife has 'for ages and ages' been threatening T that if she 'backchats' [CNQ] he will hit her.

That [CNQ] stays in the car when they go shopping so that he can smoke marijuana.

That until they had a new bathroom, [CNQ] smoked marijuana daily in the bathroom.

FACS officers interviewed [CNQ] and his wife on 15 March 2012. She denied that she pushed T into the bookcase. She said: "She wanted to go to her boy's place, and we let her go. She didn't get back until late and the next morning she had to go to work. We tried to get her up and moving, it's really hard to get her up. She was really cranky, just tired I think from the late night. I asked her to put her clothes away as I had just folded them. She just snapped and picked up her things and walked away, into the bookcase. I wasn't anywhere near her. I was sitting on the end of the lounge and the clothes were on the other end of the lounge".

[CNQ] denied throwing B onto the ground. He said "No. I did 1 night push her. She stormed off at the dinner table and I grabbed her shoulders, turned her around to go back to the table to eat her tea. Yes, I probably pushed her towards the table". He denied that she fell to the ground.

[CNQ] denied that he hit B on her back leaving a hand mark and scab. He said "I have smacked [B] on her hand, not often – only if she was mean with the grandkids" and later said "with a light smack on the back of her hand. I will admit to that".

[CNQ] denied smoking marijuana regularly and driving his car while affected by it and denied smoking it in the toilet. [CNQ]'s wife said "but he doesn't smoke cigarettes in the house …. He is not allowed to, only outside. He never smokes pot". He denied using marijuana.

When the allegations were put to [CNQ]'s wife about causing B to cry everyday when doing her hair and of pulling on her face and squeezing her cheeks, [CNQ]'s wife responded: "she hates her hair being brushed. She always wants her hair done in special ways, but I don't pull on her face. Sometimes she likes her hair pulled up, but it doesn't matter who does her hair, she still hates it. I even took her to the hairdresser to ask if her head was sensitive, but the hairdresser said she is fine with them".

[CNQ]'s wife responded to the allegation that she threw T in the bathroom and choked her as follows:

"This is what I was saying before. She pushed me and bruised me. I have photos of the bruises, I will show you. We learned that after what D did, we need to cover ourselves. This was the only time I went to put my hands on her. I went up to cuddle her, she grabbed both arms (pointed to her inner upper arm) and bruised them".

When asked further questions, she said that T was facing her at the time. [CNQ]'s wife displayed a photograph of an upper inside arm with a large bruise on his from her mobile phone.

[CNQ]'s wife denied that he hit B because she had touched the kittens.

When [CNQ] was asked whether he had smacked B on the bottom with an open hand, he said "maybe playing around with all of the kids I might have. To discipline her I would smack her on the hand and send her to her room". He denied he ever caused a bruise to B.

[CNQ] denied that T was ever threatened that he would punch, kick or bash her.

[CNQ] said that for about 18 months T had been:

"swearing and calling everyone whores". His wife said "she's not like it all of the time, but she is up late every night texting boys, and she is really slow to get moving in the mornings, she is just tired and snaps. I'm absolutely shocked this is happening".

When the FACS officers asked [CNQ] whether he would do a urine screen in respect to the allegations about marijuana, he replied, "no, I shouldn't have to". One of the officers advised [CNQ] that a urine screen would assist his case and back up his story. His wife suggested that maybe he should do it. He replied "I will think about it". CNQ] did undertake a urine testing for cannabis and that proved positive. [CNQ] on 7 November 1983 was convicted in the local court for supply Indian hemp (6 months hard labour), possess Indian hemp (fine of $750 30 days hard labour), possess utensils for smoking Indian hemp (fine $150 or 6 days hard labour), and smoke Indian hemp (fine $50 or 48 hours hard labour).

He appealed those decisions. Convictions were confirmed and sentences were confirmed, except that the sentence of 6 months hard labour was converted to 12 months of periodic detention. In a document providing information to the Children's Guardian, the applicant misrepresented his criminal record when he said that other than the matter regarding the assault of a 14 year old boy, "I had only 1 other criminal matter, being supply cannabis leaf in 1982" That was a serious understatement of the convictions in 1983 / 1984.

In relation to the use of marijuana, after the positive reading, [CNQ] told FACS officers in a review interview on 17 April 2012 "I know it was a stupid thing to do. I only did it occasionally – social things. The stress was building up, but I know that's not an excuse. I haven't used it since and I don't intend to". He did not refer to his marijuana use in his statutory declaration. In cross examination on 26 August he claimed, “I don’t still use it.” But there was no evidence that he has sought any professional assistance to end his long term use of the drug, he has falsely previously claimed to not use it, his credit is poor and there is no independent evidence that he is not using it. The tribunal does not accept his evidence that he has stopped using the drug.

In relation to these allegations, officers from FACS interviewed B at her school on 13 March 2012. There is a transcript of the interview in evidence. When asked about their mother doing her hair, she said that sometimes she sits still, and that if she doesn't sit still "she tells me to sit still in a loud voice". She said that sometimes she then sits still but "she tells me in a louder and louder and louder voice to sit still". When then asked "what about dad [CNQ]?" she replied "he smacks me and he hits me on the bottom". She was asked what happens then, and she said "I cry". The interview proceeded:

Officer:    How does dad hit you?

B:      With his hand like this (B used her open hand to demonstrate a smack), it's hard.

Officer:     Had you had a mark from a smack?

B:   Yes, once

When asked whether she had seen [CNQ] hit T, she replied "Yes". When asked whether she remembered when that happened, she said she didn't.

Officer:    What about mum?

B:   She has squeezed my cheeks, and she demonstrated with a hand on each cheek pinching them. She was asked whether that hurt her and she said it did.

Officer:    When did this happen?

B:   I don't remember.

Officer:    Have you seen [CNQ]'s wife hit T?

B:   No, she just yells at T.

Officer:    Do you have to sit on the "naughty chair"? Do you always stay on the chair?

B:   I sometimes stay, but if I move I have to stay there longer.

Officer:    Do you get a smack and sent to the naughty chair?

B:   No, just a smack OR the chair.

In the investigation by FACS officers in relation to this group of allegations raised by T, it was determined by the investigation that [CNQ] used physical discipline to manage B's behaviour, it was unclear as to how regularly this occurred. He had hit her on or near her bottom / hip, and at least on 1 occasion that had left a mark on B. It is likely that the hit was with an open hand.

It was not clear how regularly [CNQ] used this type of physical discipline. The evidence was insufficient to conclude what level of force was used in respect to the slap that left a mark, except that the mark scabbed. It was concluded that the conduct was "unlikely to result in significant harm or injury to the children" and "the evidence does not support that the level of force used by [CNQ] was beyond trivial or negligible."

[CNQ]'s wife spoke 2 days later with a FACS officer she said that [CNQ] did not smoke marijuana when they were at the shops and there was none kept in the home. She said that he had told her that he had smoked marijuana "the other week when he was out with the boys at the pub".

The enquiry concluded that [CNQ] did smoke cannabis when they were "at the shops" and that he was under the influence of cannabis when he drove the car home with T & B in the car. That was held to be an allegation of neglect that was sustained.

The enquiry found the allegations of [CNQ] hitting, punching, kicking and / or bashing T and picking her up by her throat and back and dropping her on the floor were not sustained. Nor was the allegation that [CNQ] grabbed B and threw her on the ground.

The enquiry found that [CNQ] had disciplined B by smacking her on her hand and by sending her to her room. It found that "on balance, the evidence does not support that the level of force used by [CNQ] was beyond trivial or negligible, and as a result a not reportable conduct finding is appropriate".

The Tribunal finds the following matters proved on the balance of probabilities:

CNQ has a longstanding marijuana habit and has driven his car with children in it while under the influence of marijuana;

CNQ’s wife lied when she told the investigators that he “never smokes pot”;

CNQ uses physical discipline with children, mainly by smacking them with an open hand on the bottom or the back of a hand and sometimes has left a temporary red mark;

The allegations of [CNQ] hitting, punching, kicking and / or bashing T and picking her up by her throat and back and dropping her on the floor are on the balance of probabilities untrue.

The Tribunal finds that the other allegations under item (8) are either trivial or on the balance of probabilities untrue.

The period of time since those offences or matters occurred, and the conduct of the person since they occurred

31. The matters occurred over a period of 14 years from 18 years ago to 4 years ago. The alleged sexual assaults occurred 6 to 8 years ago.

32. It is a matter of risk to the safety of children he has continued to use marijuana over a long period (about 33 years) and has since the trigger matter driven a motor vehicle whilst under the influence of marijuana and has done so with foster children in the vehicle.

33. There is no evidence that [CNQ] has undertaken any therapeutic treatment, counselling or course to assist him to cease using marijuana.

34. In his statutory declaration of 16 June 2016 in these proceedings, [CNQ] does not address the issue of whether he has ceased using marijuana or undertaken any steps towards achieving that. There is no evidence that he is seriously committed to cease using it.

35. There is no evidence that [CNQ] has recognised that his conduct in assaulting a 14 year old boy in 1998 was antisocial and abusive behaviour. He does not appear to have taken ownership of and responsibility for that conduct and recognised the importance of taking steps to ensure there is no repeat of such conduct. He has not in the 18 years since the assault, sought any assessment about why he reacted in such a way and what could be done to ensure that he avoids any further such behaviour. Instead 18 years after the offence he lacks insight into the effect on the victim, minimises the offence and appears to still blame the victim for his own conduct.

36. It is 4 years since the 2012 matters.

37. For 15 years up to 2012 [CNQ] and his wife were foster parents for 60 to 70 children for various periods. For the 10 years preceding the Children’s Guardian’s decision to impose an interim bar on [CNQ] working with children on 22 October 2015 [CNQ] performed public service as a volunteer worker with his local District Rescue Service.

38. CNQ has also given evidence he and his wife, in addition to the care of their own 5 children and foster children have hosted exchange students over a period of more than 10 years. He has also been the president of 2 amateur football clubs. He and his wife have held various positions in the Parents & Citizens Association of their children’s Primary School and he was a volunteer in the local aerobics group. There is a glowing reference by a neighbour and friend listing his community involvement and support for others, but the writer does not disclose any knowledge of the issues in these proceedings. There is also evidence that he and his wife in 2006 were chosen by the local council as Australia Day Citizens of the Year.

39. Records produced by his District Rescue Squad relating to a meeting on 29 June 2015 regarding a dispute between [CNQ] and another member have not been disputed by [CNQ]. . That other member expressed the need to talk about the issue with [CNQ], but said [CNQ] had refused to speak with him and rejected attempts to make contact. It was recorded that the President had called a previous meeting, but [CNQ] had “stormed out” and left the matter unresolved.

40. When [CNQ] came into the meeting he questioned what the issue had to do with the Squad. The President explained some of the issues for the Squad. [CNQ] said he wasn’t speaking to the other member because he had called him an obscene name, but said, “I do communicate with him on the job…”..

41. Then he said “I had issues at home at the time, I wasn’t talking to anyone.” Then he said, “It was mainly to do with what he called me”.. When he was asked by the Captain what would solve the issue, he said, “a written apology” and said a verbal apology was not acceptable. He said “The apology only if he will write one, I don’t care or not if he don’t”.

42. It appears that [CNQ] and the other member had been working together and travelling in the same vehicle. The President suggested [CNQ] could travel in a different vehicle. [CNQ] said ,he “would not refuse to travel with” [the other member]. When the other member was called back into the meeting, he was told that [CNQ] was willing to travel with him and would talk to him in a civil manner. When the President informed the other member of [CNQ’s] requirement of a written apology, the other member said “I will take this further ..will take my letter to the Police tomorrow….he will get an apology”. The other member then prematurely left the meeting and could not be persuaded to return.

43. The material from the District Rescue Squad indicates that [CNQ] had problems interacting with a fellow member and had not been communicating well with him and had also not been communicating with others.

The age of the person at the time of the offence at the time the matters occurred

44. At the time of the marijuana offences in 1983, the applicant was 24 years of age. At the time of the common assault he was 38. At the time of the allegations of March 2012 the applicant was 52 years of age.

The age of each victim of any relevant matter and matters relating to the vulnerability of the victim

45. The ages of the victims of the marijuana offences in 1983 are not known, apart from the applicant's age, which was 24 years. The victim of the common assault was 14. The allegations raised by D were when she was 14 and the allegations raised by T were when she was 15. D, T, and B were vulnerable because of their young ages and also because the applicant was their foster parent entrusted with their care and protection.

The difference in age between the victim(s) and the applicant and the relationship (if any) between them

46. The applicant was 24 years older than Victim 1, 35 years older than D, 37 years older than T and 45 years older than B.

Whether the applicant knew or could reasonably have known, that the victim was a child

47. The applicant knew that each of the victims were children.

The applicant's present age

48. The applicant is now 57 years of age.

The seriousness of the applicant's total criminal record and the conduct of the applicant since the matters occurred

49. The applicant has no criminal convictions other than the 1983/84 convictions for Cannabis offences.

The likelihood of any repetition by the applicant of the conduct and the impact on children of any such repetition

50. In a situation such as the present, the assessment of whether a person presents a risk to the safety of a child does not require any finding of proof of past child abuse. There may be a risk even where the court or tribunal cannot find that such an allegation is proved, but it is not disproved. (M vM [1988]166 CLR 69; BKE v Office of Children’s Guardian[2015] MSWSC 523.)

51. A literal interpretation of “a risk assessment … to determine whether the applicant ….poses a risk to the safety of children”, is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children.

52. In Commission For Children and Young People –v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation “not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children”. He held regarding the construction of the section:

“One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence”. [At par 41] and [at par 42]

“One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, 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 ‘risk’ with the words that follow, namely, ‘to the safety of children’.

53. There are numerous matters that weigh in support of a finding that [CNQ] presents a risk to the safety of children:

• His poor credibility;

• His unprovoked assault at age 38 on a 14 year old boy;

• The possibility that he did grab the boy by the throat; not his collar;

• His lack of insight into the consequences for the victim and lack of empathy for the victim;

• His minimisation of the offence;

• His blaming of the victim for his own conduct;

• His failure in the subsequent 18 years to recognise that to avoid any future such conduct he should seek expert advice and undertake any therapeutic intervention recommended;

• The evidence of his problems relating to a fellow member of the District Rescue Squad and of not speaking to anyone for a while;

• The possibility that one or more of the allegations of sexual assault of D are true;

• The lack of any evidence of him seeking obtaining any professional advice or therapeutic assistance to cease using Marijuana;

• His long term continuing use of the drug and the risk that he will drive children or care for children while under the influence of that drug; and

• The absence of any expert evidence, such as by a forensic psychologist or a forensic psychiatrist that he does not pose a risk to the safety of children.

54. The Tribunal has therefore concluded that CNQ poses a real and appreciable risk to the safety of children.

Any information given by the applicant in or in relation to the application

55. Those matters have been included in the above discussion.

Any other matters that the Children's Guardian considers necessary

56. Those matters have been included in the above discussion.

Privacy

57. To protect the privacy of [CNQ] and alleged victims in the proceedings, there should be an order prohibiting the publication or broadcast of the name or other identifying information of the applicant, his wife, or any child referred to in the evidence unless by leave of the Tribunal

Conclusions

58. Because CNQ poses a risk to the safety of children the correct and preferable order was to affirm the Children’s Guardian’s decision to refuse a clearance.

Orders

59. Accordingly, the orders made by the Tribunal on 26 August 2016 are:

1. The decision of the Children’s Guardian of 23 November 2015 to refuse the applicant a Working With Children Check Clearance is affirmed.

2. Publication or broadcast of the name or other identifying information of the applicant, his wife, or any child referred to in the evidence without the leave of the Tribunal is prohibited.

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

Registrar

Decision last updated: 04 January 2017