CSW v Children's Guardian
[2017] NSWCATAD 326
•10 November 2017
|
New South Wales |
Case Name: | CSW v Children’s Guardian |
Medium Neutral Citation: | [2017] NSWCATAD 326 |
Hearing Date(s): | 23 February 2017, 9 May 2017(Directions 30 May 2017 - submissions closed 30/6/2017) |
Date of Orders: | 10 November 2017 |
Decision Date: | 10 November 2017 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | J McAteer Senior Member |
Decision: | (1) The decision of the respondent dated 3 August 2016 to cancel the applicant’s Working with Children Check clearance is set aside. |
Catchwords: | CHILD Protection – Working with children – Risk – Real and appreciable – Administrative review – Lack of positive finding – Discretion to conduct risk assessment |
Legislation Cited: | Administrative Decisions Review Act 1997 |
Cases Cited: | AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 |
Texts Cited: | Butterworth’s Concise Australian Legal Dictionary (second edition) |
Category: | Principal judgment |
Parties: | CSW (Applicant) |
Representation: | Counsel: |
File Number(s): | 2016/00378365, 1610608 |
Publication Restriction: | Section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. |
REASONS FOR DECISION
On 26 September 2016 the applicant applied for administrative review in the Tribunal of a decision of the respondent to cancel a working with children check clearance. That decision was made on 3 August 2016.
The Applicant in these proceedings is referred to as "CSW". CSW is the applicant's pseudonym used in these proceedings in conformity with the order referred to in paragraph 4 (below).
The applicant seeks a finding by the Tribunal that she does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of section 30 (1) of the Child Protection (Working with Children) Act 2012, the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons. In addition the Tribunal finds that a reasonable person would allow their child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child related work, and that it is the public interest to make the order granting the Clearance.
On 13 October 2016 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
The jurisdiction of the Tribunal under Part 4 of the Child Protection (Working with Children) Act 2012 ('the Act') is protective and not punitive in nature, as set out by the Court when considering section 28 of that Act: 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 sections 3 and 4 of the Act.
3 Object of Act
The object of this Act is to protect children:
(a) by not permitting certain persons to engage in child-related work, and
(b) by requiring persons engaged in child-related work to have working with children check clearances.
4 Safety, welfare and well-being of children to be paramount consideration
The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.
These proceedings arise because on 3 August 2016, the Children's Guardian made a decision to cancel CSW’s working with children check clearance. The applicant stated in her application that she was notified of the decision on 5 September 2016, and as a result on 26 September 2016 the applicant applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act.
There is no apparent dispute that the applicant was served with the Notice of Decision on the date nominated, and as a result there can be no dispute between the parties that the application was lodged within the period required for administrative review by the Tribunal.
Background
In April 2015 the applicant applied for a Working with Children Check clearance from the respondent. The applicant may have required a clearance for her youth work in a child related employment sector. A clearance was granted by the respondent on 14 April 2015.
However, in late August 2015 the respondent became aware of a charge for common assault. A risk assessment was conducted on a discretionary basis utilising the provisions of section 15 (3) of the Act, in that the common assault matter was not an assessment trigger under Schedule 1 or contained within Schedule 2 of the Act. The section provides:
15 Assessment of applicants and holders
…
(3) Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder.
The circumstances of the charge concerned an allegation of assault on the applicant’s younger sister. The matter was dealt with under provisions of the Mental Health (Forensic Provisions) Act 1990 whereby the matter was dismissed under the provisions of section 32(3)(a) of that Act and given a conditional discharge to attend treatment by a Psychologist. An associated charge or damaging and destroying property of the sibling of the applicant was dealt with concurrently.
The relevant provisions of that Act provide:
32 Persons suffering from mental illness or condition or cognitive impairment
(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:
(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):
(i) cognitively impaired, or
(ii) suffering from mental illness, or
(iii) suffering from a mental condition for which treatment is available in a mental health facility,
but is not a mentally ill person, and
(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,the Magistrate may take the action set out in subsection (2) or (3).
(2) The Magistrate may do any one or more of the following:
(a) adjourn the proceedings,
(b) grant the defendant bail in accordance with the Bail Act 2013,
(c) make any other order that the Magistrate considers appropriate.
(3) The Magistrate may make an order dismissing the charge and discharge the defendant:
(a) into the care of a responsible person, unconditionally or subject to conditions, or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate:
(i) for assessment or treatment (or both) of the defendant’s mental condition or cognitive impairment, or
(ii) to enable the provision of support in relation to the defendant’s cognitive impairment, or
(c) unconditionally.
As a result of this assessment the respondent was satisfied that the applicant posed a risk to the safety of children and as a result cancelled the clearance pursuant to section 23 of the Act. The respondent made findings on the papers in respect of the matters required under section 15 of the Act.
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.
(4A) The Children’s Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children’s Guardian is satisfied that:
(a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and
(b) it is in the public interest to make the determination.
The respondent found that the common assault offence occurred and that such an assault on a 16 year old victim is serious and that it included a ‘pulling of the victim to the ground’ and ‘stomping on the victims chest three to four times’. The ‘maliciously damage / destroy property’ issue was found by the respondent to constitute the burning of some of the victim’s clothes. It appears that the respondent adopted the matters set out in the Police Facts in order to make findings under section 15 of the Act.
In addition the respondent reached its position in the matter in part due to the lack of contact with or from the applicant (during the assessment process), and the resultant inability to verify whether any remedial action or action in mitigation had been attempted by the applicant. In conclusion the respondent found:
Conclusion Due to Ms [CSW]’s child-related common assault offence and in the absence of information to indicate that [CSW] has addressed the risks associated with her continuing behaviour, the Children’s Guardian is satisfied that [CSW] poses a risk to the safety of children.
As a result of the cancellation of the clearance the applicant is unable to engage in child related employment.
The applicant lodged the application for administrative review before the Tribunal on 26 September 2016. Whilst the application was filed some eight weeks after the date of the decision, the Act makes provision for time to run from when notice of the decision was given to the person. Section 27 (2) of the Act relevantly provides:
27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions
….
(2) A person whose clearance is cancelled by the Children’s Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
Whilst the decision and reasons are dated 3 August 2016, it was asserted that the decision was forwarded to an old or inaccurate residential address. The matter was subsequently transmitted by e-mail on or about 5 September 2016. This matter was never contested by the respondent before the Tribunal and on that basis the matter has been lodged within the time period provided for in section 27 (1) of the Act. The section provides:
27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions
(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
The grounds of the substantive application are:
I do not pose a risk to the safety of children, nor to their welfare and wellbeing under reasonable person test.
The offence referred to in the decision was a first time offence with no conviction recorded.
Significant steps have been taken to address my behaviour.
There is a public interest in allowing me to have a working with children clearance.
The issue now to be decided by the Tribunal is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting or refusal of a clearance in relation to the applicant: (see section 63 Administrative Decisions Review Act 1997.)
The working with children legislative scheme
The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act).
The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. (See section 4 of the Act).
Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of section 8(1) is an offence.
The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act). A child related role is set out in section 6(3) of the Act.
Section 14 of the Act provides that a person is subject to an assessment requirement under the Act if any of the matters specified in Schedule 1 apply to the person.
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.
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.
Part 4 of the Act deals with reviews and appeals. Section 27 makes provision for administrative review, by the NSW Civil and Administrative Tribunal, of decisions of the Children's Guardian.
Section 27 (1) of the Act makes provision for administrative review by the Tribunal of (amongst other things) a decision of the respondent to refuse a clearance (see section 27 (1)). The section relevantly provides:
27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions
(1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
...
(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.
Section 30 sets out the factors that the Tribunal must consider in determining a review application. Subsection 30 (1) of the Act provides:
30 Determination of applications and other matters
(1) The Tribunal must consider the following in determining an application under this Part:
(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the offences or matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person's present age,
(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
(j) any information given by the applicant in, or in relation to, the application,
(k) any other matters that the Children's Guardian considers necessary.
Burden of Proof
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].
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].
An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
In addition, in this case there is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to section 28 of the Act.
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.
As stated above, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 28 above). Section 15 (4) sets out the criteria which the Children's Guardian may consider. The Tribunal in its administrative review considers similar criteria in that section 15 (4) and section 30 (1) are drafted in similar but not identical terms. An important distinction is the word "may" in 15 (4) and "must" in 30 (1). (See paragraph 12 above).
The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) At [42], His Honour said:
'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'
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.
The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal.
The Issue to be decided
The primary issue before the Tribunal in this application as outlined at paragraph 17 above, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a clearance in relation to the applicant: (section 63 Administrative Decisions Review Act 1997).
The Hearing
The matter was heard on 23 February 2017 and adjourned part heard to 9 May 2017 in order to complete the evidence and oral submissions. At the conclusion of the second day of hearing a further timetable was set (at the parties’ request) that written submissions be filed and due to some disputes concerning compliance the matter came in for a post evidence directions hearing on 30 May 2017. The filing of submissions closed on 30 June 2017 at which time the Tribunal reserved its decision. Both the applicant and respondent were legally represented.
At the commencement of the hearing the Tribunal was advised that during the hearing two witnesses for the applicant would be giving evidence, the applicant and her expert, however there would be a further expert who was not available on the day set down for hearing. The respondent did not call any witnesses however they cross-examined the applicant and her expert witnesses.
The applicant gave evidence first but was later recalled after the first expert (Psychologist P Khnana) gave his evidence.
Written Evidence
Applicant’s written material
The applicant filed a number of written items in support of her application.
Exhibit ‘A 1’ the application for administrative review dated 26 September 2017.
A Statutory Declaration of the applicant affirmed 10 November 2016 and attaching a December 2-015 Expert Report C. Hare Exhibit ‘A 2’.
Exhibit ‘A 3’ a report of P Khnana dated 19 December 2016.
Exhibit ‘A 4’ a Report of Dr C Lennings dated 6 February 2017.
Respondent’s written material
The respondent filed substantial material under both section 58 of the ADR Act and material obtained since the commencement of the proceedings. Whilst the respondent did not call any witnesses, substantial cross-examination of the applicant and examination of the applicant’s expert occurred at hearing.
Submissions
Both parties filed detailed written submissions prior to the hearing, and further submissions after the hearing in addition to oral submissions made at the conclusion of the evidence at the hearing. The Tribunal understands that the parties obtained access to the transcript of the proceedings in order to complete submissions after hearing.
Applicant’s Evidence at Hearing
In evidence-in-chief on the first day of hearing the applicant adopted her statutory declaration as true and correct.
The applicant advised that she is studying for a Diploma in Family Day Care and looks after her own infant child and her younger siblings. It was in this vocational context that the clearance was sought. The applicant is a young woman and gave evidence that since the age of 9 she was responsible (under delegation) for caring for the younger siblings in the family in some way.
The expert witness was the person she was referred to by the Court as part of her discharge. He was nominated because of an existing family history in that he had treated the applicant’s mother. The applicant had initially translated during the session between her mother and the expert. The applicant was comfortable now telling the expert all of her problems, and she indicated that she benefited from having someone to talk to. When asked why she was no longer seeing Mr Khnana the applicant advised that he had told her she was well enough and did not need to see him anymore.
In cross-examination the applicant advised that she came to Australia from Africa approximately 10 years prior as a 13 / 14 year old girl. As a child in Africa she performed farm work and did not go to school.
The applicant was taken to the incident referred to as the basis for the risk assessment. The applicant’s version was that her younger sister had a friend stay overnight. The next morning the sister said to the applicant that she would not go to school. Her evidence was that her mother told the applicant to stop the younger sister from leaving the house. The friend (who had two young children of her own present), decided that she was going to leave the house and the sister of the applicant wished to go with them. The guests left and the applicant ‘pulled’ the sister back inside the house via her hood. At this point the applicant and the sister / victim’s mother drove up in the car and came inside the house with the applicant still holding onto the victim’s hood.
The applicant’s version was that the mother then came between her and the victim and they fell to the ground during the struggle with the victim kicking the applicant in the stomach. They got up and the mother pushed the victim outside and closed the door. The applicant stated that she was angry and she bundled the victims loose clothes into a clothes bag that the victim had to initially take with her, and put the clothes on the stove. The bag / or clothes caught fire, Police had by that time attended and were banging on the gate asking for the fire to be extinguished.
The applicant’s evidence was that she put out the fire and the police arrested her and took her to the police station. The respondent referred to the police Facts Sheet that was handed up in the Local Court. The applicant’s representative argued that the Facts were not agreed, and no admissions were made. (The Facts are summarised in the respondent’s notice of cancellation reasons set out at paragraph 13 – above).
The police version of events involving a neighbour witness was put to the applicant. The applicant stated that the neighbour was always problematic and that the evidence the neighbour gave was false. In respect of the sibling / victim’s evidence the applicant stated that she had denied ever saying anything like what was recorded. Her mother only spoke a very rare dialect and the applicant was curious and concerned as to how such information was obtained from her mother as she had been her only translator.
The applicant denied the version given in the Facts, and gave evidence as to the fact that her then pregnancy (of seven months) would have prevented her from positioning her body and attacking the victim in the manner alleged. In addition the applicant gave evidence that she only had the victim’s interests at heart and would not have harmed her in the manner alleged.
The applicant gave evidence that the neighbour was improperly motivated against her and had previously falsely accused the applicant of taking items of property from their yard. The neighbour it was asserted had acted in a racist manner to the applicant and her family, and there was a history of bad relations and the need for the applicant to call police.
Due to time constraints the witness was excused to be recalled later, and was absent whilst the expert gave evidence.
Applicant's further evidence.
The applicant was recalled to give further evidence after the first expert and cross-examination continued. The trigger incident details post police attendance facts were put to the applicant who stated that she had no idea what happened.
The respondent sought to question the applicant about her mental health history. After a ruling by the Tribunal limited questioning was allowed in respect the applicant’s recollections of her involuntary admission for mental health issues. When asked if she remembered anything from her involuntary admission however, the applicant had no recollection of the matter.
In respect of her mental health situation the applicant had limited recollection about her history. There was some understanding of a particular counselling program that commenced in High School. Questions were asked about the applicant’s use of prayer and traditional medicine to manage mental health problems. The applicant gave evidence about traditional practices in Africa and the use of herbs and prayer, and that currently this helps her to relax.
The applicant was questioned about adverse matters that she disclosed to the forensic psychologist who she was referred to under the Court mental health provision. The applicant advised that she obtained medication and took some (half of it) during school hours and it made her dizzy and she fell over in the park. Questions were put about other incidents including falling asleep when in charge of her younger siblings.
The applicant was examined about her religion. She advised that her family were Muslim. The respondent highlighted that arising from her talking to the forensic psychologist it appeared that the applicant had converted to Christianity.
In re-examination the applicant was asked whether she ‘stomped’ on her sister’s face (the trigger incident). The applicant denied this. The applicant was also asked about the burnt clothes and gave evidence that she was the owner of the clothes (not her younger sister).
Further re-examination occurred concerning the applicant’s mother and her (rare for Australia) native language. The applicant was asked about interpreters and advised that one language was hard to find an interpreter for, but for another language spoken it was possible to find interpreters.
The applicant denied drinking alcohol, taking drugs or being a Christian, but admitted to having strong spiritual beliefs. The applicant denied ever having harmed a child.
The Tribunal questioned the applicant on the impact (if any) of her treatment sessions. The applicant indicated that the sessions had been helpful. In respect of the trigger incident the applicant’s evidence was that she and her sister tried to be supportive afterwards (even thought there was an AVO in place).
Expert Evidence
Peter Khnana, Registered Psychologist, gave evidence over the telephone. In evidence-in-chief the expert was asked about his sessions with the applicant. The witness confirmed that his first session was following the Court outcome but that he had known the applicant earlier as her mother’s translator.
The expert advised that he assessed the applicant based on the Court report prepared by C Hare. (annexed to Exhibit A- 2). The expert’s evidence was that he had treated the applicant based on Ms Hare’s diagnosis of schizophrenia and trauma arising from her time in Africa and related matters.
The expert advised that during 2016 he had at least 10 sessions with the applicant. The expert spoke of the challenges the applicant faced with treatment due to her high level of trauma and the distressing nature of some of the trigger factors and that he wrote a report to her G.P. concerning a further treatment plan. The most recent assessment was in late October 2016.
In respect of real and appreciable risk to children, the expert based his assessment on Ms Hare’s report and noted her statement that the applicant ‘only had three episodes of schizophrenia last year which was a very high stressful year for her’. The evidence was that the episodes do not impact on a daily basis but only in extreme circumstances and situations where the applicant’s physical harm is at risk. The evidence was that most of the time the applicant is able to function quite well, and that the main trauma arises from the applicant’s social-economic circumstances which refer to her residential locality and unemployment. These are in the expert’s opinion the main current stressors. In respect of the applicant working with children, the evidence was that the schizophrenia and traumas are managed and do not impact on her ability to care for children (including her son).
In cross-examination the expert was asked whether he had access to the applicant’s inpatient records from her involuntary mental health admission in 2010. The expert had not assessed these records. Counsel put the outline of the admission to the expert and was asked (notwithstanding not having seen the material) whether such material would change his opinion / assessment of the applicant. The expert considered that it would not mainly because of the applicant’s current functioning in the absence of medication. Pressed further the expert conceded that those records might change his opinion.
The expert was questioned about his expertise in treating ‘survivors of war’, ‘refugees’, and ‘survivors of sexual abuse / assault in particular’. The expert gave evidence that he had extensive experience working with persons who had experienced and survived torture and related traumas from other countries. Experience as an approved victims of crime counsellor was also stated. When asked about experience with persons of African ancestry the expert indicated that he currently had a caseload of eight African clients. In addition the expert had assisted on immigration reports for clients.
Reference was made to the applicant’s opinion about dealing with trauma by prayer. The expert indicated that he had been trying to work across that issue during therapy sessions.
The expert gave evidence about the two types of schizophrenia and how they respond to different treatment regimes. Impaired schizophrenia sufferers require medication on a regular basis, whereas reactive schizophrenia sufferers only manifest the condition as a result of a trauma and isolation from the traumatic issue can be effective.
The expert was questioned about schizophrenic reactions and advised that in a stressful situation a normal persons ‘adrenaline rush’ would not last very long, possibly a couple of hours. However if someone had schizophrenia their reaction (which might include a level of paranoia) might last a day or more.
The expert referred to the neighbour (related to the ‘trigger incident’) being racist towards the applicant and her family and that this in part contributes to the anger outbursts. Counsel questioned whether that evidence was self-reported by the applicant, and the expert advised that the mother had also confirmed this. Reference was also made to a former support worker who was aware of these harassment issues.
The expert referred to his DASS 21 testing of the applicant, noting moderate to severe symptoms. The applicant had brought her son to counselling three or so times during 30 – 40 minute sessions. The expert confirmed that his opinion concerning risk to children re: the applicant was based not so much on testing but opinion based. The expert gave evidence that the applicant suffered three schizophrenic episodes in the previous year according to Ms Hare’s report during 2014 / 2015 he had not witnessed any symptoms during the therapy sessions.
In respect to questions / proposition concerning whether a person undergoing an episode might be a danger to persons around them or persons in their care, the expert advised that was a difficult question to answer, due to the fact that individuals responded differently and that ethically it was not possible to test, and had not been researched for ethical reasons.
The witness also gave evidence that in his opinion the applicant did not display schizophrenic symptoms when dealing with her sister (during the incident), but rather that she coped and was resilient to the conflict.
In re-examination the expert was asked to clarify the two types of schizophrenia, reactive and impaired or dysfunctional. In the expert’s opinion the applicant’s symptoms were of the ‘reactive’ type.
The Tribunal inquired of the witness in respect of his opinion as to the applicant’s coping in stressful situations. The witness believed that the applicant would cope in a stressful situation involving a child, and that understanding was based on knowing that young children would be involved. The expert was aware of the applicant’s desire to work in day care.
The expert re-stated that in his opinion the ‘trigger’ incident was not a schizophrenic reaction but a domestic dispute.
Second day of evidence / hearing
The hearing reconvened in order to hear from the second expert Dr Lennings.
Second Expert’s evidence
Dr Lennings gave evidence at the hearing and referred to his report of 6 February 2017 in evidence-in-chief. The expert confirmed that he had considered Mr Khnana’s report, the respondent’s reasons for refusal and C Hare’s Court report and material authored by the applicant.
The expert confirmed a primary diagnosis of post traumatic stress disorder (PTSD) and that in 2009 there was a diagnosis of schizophrenia. In the expert’s view the primary diagnosis remains as PTSD. The expert was asked whether there was any evidence of prior episodes of the illness in the material he had viewed, and answered no. The expert advised that the applicant’s crying during the assessment when recounting traumatic experiences was unremarkable for a PTSD sufferer.
The expert was also questioned at to why he referred to the schizophrenia diagnosis as ‘preliminary’. The expert’s evidence was that there was no long term evidence of any ‘entrenched disorder’, merely a one week hospitalisation. The expert gave evidence that in his experience persons from Africa present with a higher incidence of psychosis that persons from other continents, however there was a higher ‘complete cure’ rate as these conditions resolved much more quickly than sufferers from western countries.
When asked specifically whether the expert believed that the applicant posed a real (and significant) risk to the safety of children, the expert gave evidence that she did not pose such a risk, and that was the conclusion of his report. In addition the report referred to the lack of risk to children, adolescents and adults. The expert also gave evidence about the relevance of a PTSD diagnosis to risk to children. The expert advised that if the diagnosis relates to a person’s ability to regulate their emotions, and if their emotional history compounded with severe problems was complex then that might have an impact.
In respect of the applicant the expert qualified the above in that one needed to consider the risk ‘at this point’. For the last two years the applicant had responded to therapy, sorted herself out, avoided alcohol, and was not getting in any self harm situations. The expert observed how the applicant (notwithstanding her traumatic life incidents) had become a parent and was managing her own infant child in the absence of any concern or intervention by the Department.
In cross-examination the witness was taken to material produced on summons concerning the involuntary hospital admission in 2009. Counsel pressed the expert on a reference in his report to there being no history or evidence of delinquent criminal or violent behaviour. However Counsel (without asserting the proposition as factual) referred the expert to an extreme ‘disclosure’ from the applicant’s life in Africa contained in the hospital notes. When asked if this disclosure and other evidence in the notes of self-harm would have changed his opinion the expert returned to the fact that those matters were referred to in 2009.
The expert advised that those matters would have been impossible to properly assess by interview even if the material was before him, and because of the passage of time and subsequent history, they do not alter his opinion.
Further questions were directed at the applicant’s level of insight and responsibility in respect of the trigger incident with her sister. The expert qualified that the matters occurred in a specific context, whereby the applicant had been given parental responsibility / authority by her mother, the sibling had defied her, and had kicked the 7 month pregnant applicant in the stomach. Whilst the reaction was somewhat extreme the context was important. The clothes that were burnt by the applicant were clothes that she was intending to gift to the sibling / victim. In respect of insight the expert referred to the competing claims of what took place, and that as she saw that she was acting protectively towards her sister then she would not have insight into her 16 year old sister objecting to being grabbed.
The expert was asked whether the cultural context of being in charge of younger children would influence the applicant’s views about authority. The expert agreed beyond the cultural context in that anyone being placed in authority ordinarily assumes a certain amount of authority. We infer from this evidence that the authority acts as some sort of qualified sanction, as would normally be the case.
In re-examination the expert was asked whether based on his extensive experience a patient with an extremely troubled life experience would have delusions under psychotropic medicine. The expert agreed that persons who had extreme abnormal experiences would come up with abnormal ideas occasionally.
Applicant’s Submissions
The applicant made oral submissions at the conclusion of the second day of hearing. Reference was made to the continued use of the reference to ‘trigger’, in that the sole finding does not constitute a Schedule 1 matter. The applicant submitted that the allegations (other than the evidence given by the applicant in these proceedings) remain untested.
The applicant submitted that she did not enter any plea of guilty but that the matter was dealt with under the mental health provisions. There were no agreed facts and the police facts were not determinative.
Submissions were made in respect of the applicant’s conformity with the disclosure obligations under the Act, and had provided relevant reports from Messrs Hare and Khnana in addition to a report prepared specifically for these proceedings (Lennings). In addition she had prepared a statutory declaration and had been available for examination in the proceedings.
The applicant’s representative submitted that at the highest the applicant’s ‘offending’ had been very minor but the respondent had produced a plethora of material which it was submitted was of limited probative value. It was submitted that this was an example almost of a case being built against the applicant, and that the respondent’s material is of limited weight. It was submitted that the applicant has a love of children, and is on good terms with her younger sister. The applicant would have called the younger sister to give evidence had the respondent sought to make a Jones and Dunkel type submission.
The applicant’s representative made submission about the conclusions to be drawn from the expert evidence, being that there is a PTSD primary diagnosis and any other potential diagnosis should be treated with caution by the Tribunal. Dr Lennings agreed with P Khnana that there is nothing troubling with the applicant framing her emotional disturbances in a spiritual manner.
The applicant’s representative made submissions concerning the lack of any real and appreciable risk and the matters under section 30 (1A) of the Act concerning the reasonable person and the public interest.
Respondent’s Submissions
The respondent made oral submissions at the conclusion of the evidence in addition to written submissions. Those submissions essentially sought to rebut many of the applicant’s submissions.
In particular the respondent addressed the applicant’s submission that the Children’s Guardian was seeking to impeded the applicant’s working life. The respondent clarified that their purpose is to protect children and that was what they had been doing by cancelling the applicant’s clearance. It was submitted that the applicant was free to work in Australia like any other person, however her work with children should be curtailed as in their view she posed a risk.
The respondent submitted that the applicant showed a lack of insight into the nature of her own behaviour but also the broader issue of how that behaviour might impact on a child.
In written submissions the respondent argued that section 30 (1A) did not apply as the applicant posed a risk and as a result there was no basis to address on the other criteria.
Consideration
Section 30 (1) considerations
(a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.
The applicant's application to the Tribunal is brought about by an adverse risk assessment of her by the respondent. The applicant’s clearance was not refused as it was the subject of a cancellation, however we infer the same outcome arises under this process. The matter (referred to by the respondent as the ‘trigger incident’) concerns the appearance before the Local Court on matters concerning an assault on her younger 16 year old sibling. The competing evidence is set out elsewhere in these reasons and is well known to the parties. The matter (if it occurred) is serious in that in involves an assault on a child (albeit one of 16 years of age).
(b) The period of time since those offences or matters occurred and the conduct of the person since they occurred.
The allegations relate to matters said to have occurred approximately a year and nine months prior to the conclusion of the hearing. There is no evidence before the Tribunal of any ‘offending’ type behaviour prior to or since the incident for which she appeared before the Court.
(c ) The age of the person at the time the offences or matters occurred.
The applicant was approximately 22 years of age at the time of the alleged conduct.
(d) The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim.
The victim in the section 30(1)(a) allegations was approximately 16 years of age. The victim was a child. There was evidence that the applicant had been given authority over the victim by the mother.
(e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person.
The difference in age between the applicant and the victim was approximately six years. The Applicant and the victim are siblings.
(f) Whether the person knew or could reasonably have known, that the victim was a child.
The applicant was aware that the complainant in the allegation was a child.
(g) The person's present age.
At the time of the hearing the applicant was 23 and turned 24 years of age whilst submissions were prepared.
(h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred.
The applicant does not have a criminal record. A Criminal Record usually refers to convictions as set out in a number of legal dictionaries, such as Butterworth’s Concise Australian Legal Dictionary (second edition) and the LexisNexis Concise Australian legal Dictionary 4th Edition. Each refers to:
A written history detailing a person’s past criminal convictions.
as being the settled definition of the term criminal record. We also note that the Criminal Records Act 1991 deals solely with the term convictions as being within the realm of the Long Title of that Act. For those reasons we find that the first aspect of this provision is not applicable to the current matter.
There is a record of the matter dealt with by way of dismissal under the provisions of section 32 (3) (b) (ii) of the Mental Health (Forensic Provisions) Act 1990. That Act provides:
32 Persons suffering from mental illness or condition or cognitive impairment
(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:
(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):
(i) cognitively impaired, or
(ii) suffering from mental illness, or
(iii) suffering from a mental condition for which treatment is available in a mental health facility,
but is not a mentally ill person, and
(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,the Magistrate may take the action set out in subsection (2) or (3).
(2) The Magistrate may do any one or more of the following:
(a) adjourn the proceedings,
(b) grant the defendant bail in accordance with the Bail Act 2013,
(c) make any other order that the Magistrate considers appropriate.
(3) The Magistrate may make an order dismissing the charge and discharge the defendant:
(a) into the care of a responsible person, unconditionally or subject to conditions, or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate:
(i) for assessment or treatment (or both) of the defendant’s mental condition or cognitive impairment, or
(ii) to enable the provision of support in relation to the defendant’s cognitive impairment, or
(c) unconditionally.
The evidence establishes that the applicant complied with the order to attend on P Khnana and as a result was not dealt with again under section 32 (3D) of that Act.
(3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.
Noting section 32 (4) of the Act, it is clear that the applicant does not have a criminal record.
(4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.
The second aspect of this provision is therefore also not applicable due to the fact that as a matter of record no offences occurred and no criminal record exists. However even if it were to be relevant, the issue has already been addressed in our reasons above at section 30 (1) (b).
(i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition.
The Applicant provided a psychological report in support of her application from a Forensic Psychologist. Other reports were provided and evidence was given at hearing by two experts on her behalf. The applicant submitted that the serious incident arose in unique circumstances, circumstances that could not and would not be repeated. The respondent countered that the applicant’s proposed career pathway could lead to a real repetition of the circumstances. The expert evidence indicated that such a risk is low. However if there was a repetition of the alleged behaviour it is clear that such behaviour would have a significant and adverse impact on a child.
(j) Any information given by the applicant in, or in relation to, the application.
The applicant tendered a statutory declaration and expert reports in support of her application, and was subject to extensive cross-examination at hearing. In addition the applicant tendered an earlier psychologist report arising from the Court order.
The applicant filed written outline of submissions in February 2017, closing submissions in early May 2017, further closing submissions in mid May 2017, and submissions in reply to the respondent’s closing submissions in late June 2017.
(j1) Any relevant information in relation to the person that was obtained in accordance with section 36A,
There does not appear to be any relevant information within the respondent’s section 58 and section 31 material which arises from an exchange of information with other jurisdictions.
(k) Any other matters that the Children's Guardian considers necessary.
The respondent made various submissions and tendered a large volume of material arising under section 58 of the Administrative Decisions Act 1997 and section 31 of the Child Protection (Working with Children) Act 2012.
Significant reliance was placed on the 2009/2010 hospital notes concerning the applicant’s involuntary admission, and the somewhat extreme and if factual and untreated the significant concerns arising. Other concerns related to the manner in which the applicant addressed her issues (relying on spiritual beliefs and remedies) as well as prior petty theft and substance abuse admissions. We have considered all of the material filed and referred to in the lengthy hearing and submission period of these proceedings.
The respondent filed detailed sets of submissions, comprising a 12 page outline of submissions in February 2017, and an 11 page closing submissions in mid June 2017.
Further Consideration
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. For this reason the evidence has been substantially reproduced in these reasons, and we base our findings in part on an assessment of that evidence as incorporated into the later part of these reasons. In particular we have focused on the evidence in respect of the sole incident that caused the respondent to review the applicant’s suitability to work with children. We note that no evidence was called by either party in support of their position about this incident (other then the applicant’s evidence), and noting the Jones and Dunkel issue referred to above. In part there was an explanation for this as the applicant’s mother required a specific translator, the whereabouts of the neighbour may be unknown and evidence un-compellable, and the respondent had not required the sister’s attendance.
However, all material has been considered by us in coming to a conclusion about the ultimate consideration for the Tribunal. However the material of the expert witness was given significant weight, having regard to the fact that their evidence was scrutinised, and that they have provided expert evidence on the substantive consideration for the Tribunal, that is whether the applicant is a risk to the safety of children. In particular the applicant's evidence and the expert evidence were considered to a significant extent in determining the major issue for determination, whether the applicant poses a real and appreciable risk to the safety of children and young persons.
The Supreme Court has recently revisited the correct approach that the Tribunal should take when making a finding on otherwise unproven allegations, and then moving to the substantive consideration of risk.
However earlier in the matter of Office of the Children's Guardian v CFW [2016] NSWSC Harrison J. observed the following concerning the approach arising from observations made in BKE.
The statutory test
13.The test in s 18(2) of the Act requires a decision maker to consider whether a person "poses a risk to the safety of children". "Risk" in this context excludes "fanciful or theoretical risk" and instead requires a decision maker to determine "whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child": Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children's Guardian [2015] NSWSC 523 at [33].
14.The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application.
15.The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to:
"... determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child's welfare."
16.Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41].
17.A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left "open", the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.
However we note the case of Children’s Guardian v CKF [2017] NSWSC 893 has given further guidance on the matter, in particular the position that a lingering doubt arising from a disputed matter should not automatically count against an applicant. At paragraphs 49 – 56 inclusive Davies J embarks on a further consideration of the ‘statutory test’ referred to in CFW via the case of BKE with reference to the High Court case of M v M.
49. It is also of significance that in the paragraph which intervened between [109] and [111] the Tribunal specifically referred to the judgment of Harrison J in CFW. Earlier the Tribunal had in its reasons set out that portion of Harrison J’s judgment that dealt with the statutory test at [13]-[17] of CFW. At this point the Tribunal referred to Harrison J’s judgment at [48] of CFW where his Honour discussed the need to weigh all reasonable suspicion in the process of determining what might happen in the future. That is a strong indication that the Tribunal did not put aside the allegations in determining whether the applicant posed a risk to children. It is also difficult to see how it can be said that the Tribunal failed to apply the appropriate test where, in the paragraph immediately preceding its conclusion that the Defendant did not pose a real and appreciable risk to children, the Tribunal had referred to the very case which elaborated on the statutory test.
50. What the Tribunal said in [113] shows that the Tribunal was alive to the correct test that it had to apply when it said:
In particular the applicant's evidence and the expert evidence were considered to a significant extent in determining the major issue for determination, whether the applicant poses a real and appreciable risk to the safety of children and young persons.
51. It is apparent from that passage also that the basis for the Tribunal’s conclusion, set out somewhat repetitively in [115], [116] and [118] of its judgment, was the evidence of the Defendant and the evidence of Dr Seidler.
52. One final point should be made about whether the Tribunal applied the correct test. In CFW Harrison J said:
[16] Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]. (emphasis added)
53. The notion that the “lingering doubt or suspicion” should be counted against the defendant seems first to have been identified by the Tribunal in BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 where the Principal Member said at [41]:
If a lingering doubt or suspicion remains, as it does, that counts against BSR: see M v M at [21]; BKE at [33].
54. The reference to M v M is to the decision of the High Court at (1988) 166 CLR 69; [1988] HCA 68 and the reference to BKE is to the decision of Beech-Jones J in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523. The problem is that neither of those cases said or implied that it counted against the defendant if a lingering doubt or suspicion remained. It is necessary to set out not only the paragraph in M v M identified by the Tribunal in BSR but also the subsequent paragraphs to demonstrate that there is no basis for the gloss added by the Tribunal:
[21] Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
[22] In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. 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.
[23] 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.
[24] 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 assessing 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.
[25] Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M [1986] FamCA 62; (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) [1986] FamCA 52; (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
55. Similarly, in BKE Beech-Jones J set out most of what appears above from M v M and said at [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.
56. With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or “a lingering doubt or suspicion” counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children.
The applicant's evidence in written and oral statements are that the serious matter did not occur in the circumstances as set out in the Police Facts. Having considered all of the evidence and material, in particular the consistency with which the applicant’s version of the serious incident were recounted, we find that we are unable to make a positive finding as to what occurred.
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.
On the question as to whether any lingering doubt remains, we find that notwithstanding the lack of a positive finding, some doubt must remain. The evidence has never been tested at trial. The allegation is serious, and the applicant would not have been subject (in all likelihood) to a risk assessment had the allegation not come before a Court. However police formed the view initially at least that a prima facie case existed.
For these reasons we find that (consistent with the observations of Harrison J in Office of the Children's Guardian v CFW at paragraph 48) we have explored those matters to the extent available to us at the hearing. We have set out those matters relating to the mandatory considerations above. However we reiterate that are unable to make a positive finding.
Notwithstanding that lack of a positive finding, on the evidence before us, we are not satisfied that the applicant poses a real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we so find.
In consideration of real and appreciable risk based on consideration of all the circumstances we find that the correct and preferable decision that the applicant does not 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 section 4 of the Act. In making these findings we are of the view that the applicant has sufficient insight into the impact (that the alleged behaviour) would have on her sister – or any similar victim. The applicant’s evidence was considered by as couched in terms where she absolutely denies the version alleged and as a consequence any harm directed at or suffered by the sister / victim.
Section 30 (1A) consideration
The section provides:
(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:
(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and
(b) it is in the public interest to make the order.
In initial submissions prior to hearing the respondent submitted that these matters did not come into play as the applicant (in the respondent’s view) posed a risk to children. Whilst the applicant had made repeated and developed submissions on the section 30 (1A) issue, at paragraph 30. of their Closing Submissions of 15 June 2017 the respondent repeats that these section 30 (1A) matters do not apply. This argument seems to be based on the firm position of the respondent that the applicant poses a risk. Bearing in mind the repeated sets of submissions, and a further directions listing post evidence, we are of the view that the respondent had sufficient notice as to whether they wished to address on section 30 (1A) notwithstanding their position on risk. In addition in our view the applicant’s developed submissions and the operation of the legislation would have sufficiently alerted the respondent to this issue.
We note that the applicant submitted in their Closing Submissions of 9 May 2017 that a reasonable person would allow his or her child to spend unsupervised time with the applicant and that the applicant has provided sufficient evidence to satisfy the Tribunal that it is in the public interest to make the order she seeks.
In our view a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. As in the Victorian cases in our view a reasonable person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk. Particular regard would be had to the unchallenged expert evidence (notwithstanding the respondent’s submissions as to weight).
A reasonable person whilst approaching the manner with some caution would in our view find that any risk was insufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A).
The case of CHB v Children’s Guardian [2016] NSWCATAD 214 recently dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:
73. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.
In CSW’s situation a reasonable person would be aware of the circumstances of the evidence of the incident before us, the applicant’s background as a refugee and trauma survivor. In addition the time since the involuntary admission, her current functioning and unchallenged caring for her infant child would all be considered.
As a result, we find that a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work.
The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.
74. The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations.
75. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.
In our view there is nothing contrary to the notion of the public interest in the granting of a clearance, and having regard to the applicant’s stated future purpose for obtaining the clearance, having found that the applicant does not pose a real and appreciable risk, we believe that it is in the public interest to grant the clearance. We note that there is no presumption (nor was there ever any presumption) that the applicant posed a risk to children, rather that he was the subject of an adverse risk assessment.
As a result we find that it is the public interest to make the order.
Conclusion
For the reasons set out above, we reach the following conclusion.
The evidence and material referred to in these reasons does not establish that the applicant currently poses a real and appreciable risk to the safety of children.
The evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant poses a risk to the safety and wellbeing of children.
In our view having regard to all of the material before the Tribunal, to the requisite standard the applicant does not pose a risk to the safety of children.
It therefore follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children's Guardian and that the Respondent / Children’s Guardian is to reinstate CSW’s working with children check clearance.
The operation of the order (due to the decision under review being a cancellation) will be made in the following way.
Orders
(1)The decision of the Children's Guardian dated 3 August 2016 to cancel the applicant’s Working with Children Check Clearance is set aside.
(2)In substitution for that decision, the following decision is made: The respondent issue to the applicant a Working with Children Clearance.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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