CVL v Children's Guardian

Case •

[2018] NSWCATAD 9

•

09 January 2018

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: CVL v Children's Guardian [2018] NSWCATAD 9
Hearing dates: 1 September 2017
Date of orders: 09 January 2018
Decision date: 09 January 2018
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
R Royer, General Member
Decision:

1) The decision of the Children’s Guardian on 4 November 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is confirmed.
2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
3) It is noted that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Catchwords: ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance- conviction in 2009 under section 61 Crimes Act 1900 (NSW) where the victim was a female 14 year old child - where paramount concern is protecting children from child abuse - onus of proof in a review under section 27- whether finding on the balance of probabilities is able to be made that alleged events occurred – whether there is an unacceptable risk of harm – whether a real and appreciable risk is posed by the applicant to the safety of children.
Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BGX v Children's Guardian [2014] NSWCATAD 173
BHL v Children’s Guardian [2015] NSWCATAD 46
BHY v Children’s Guardian [2015] NSWCATAD 91
BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKN v Children’s Guardian [2014] NSWCATAD 213
BKP v Children's Guardian [2014] NSWCATAD 207
BKV v Children’s Guardian [2015] NSWCATAD 65
BKV v Children’s Guardian [2015] NSWSC 1602
BLD v Children’s Guardian [2015] NSWCATAD 2
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
BPA v Children’s Guardian [2015] NSWCATAD 36
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
BVT v Office of the Children’s Guardian [2016] NSWSC 1169
BYR v Children’s Guardian [2013] NSWADT 310
BZU v Children’s Guardian [2016] NSWCATAD 3
Carr v Simnovic (1980) 26 SASR 263
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v BRL [2016] NSWSC 1206
Children’s Guardian v BQJ [2016] NSWSC 869
Children’s Guardian v CFW [2016] NSWSC 1406
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
CSZ v Children’s Guardian [2017] NSWCATAD 57
Greyhound Racing Authority v Bragg [2003] NSWCA 388
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378
Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
LA v Commissioner for Children and Young People [2012] NSWSC 1454
M v M [1988] HCA 68; 166 CLR 69
Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173
R v Commission for Children and Young People [2002] NSWIR Comm 101
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Re Sophie (No 2) [2009] NSWCA 89
Roberts v Balancio (1987) 8 NSWLR 436
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
YG & GG v Minister for Community Services [2002] NSWCA 247
Category:Principal judgment
Parties: CVL (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel/Advocates:
C Smith (Applicant)
T Stevens (Respondent)

  Solicitors:
Trenches McKenzie Cox (Applicant)
Crown Solicitor’s Office (Respondent)
File Number(s): 201600378492
Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for Decision

Introduction

  1. The female applicant is known by the pseudonym “CVL” in these proceedings to protect the identity of the applicant as is the practice of the Tribunal in order to prevent the identification of any children who have been mentioned or referred to in the evidentiary material. The disclosure of that information is likely to cause distress and further harm to any child victim. Because the victim will be identified if the applicant’s name is used, due to their relationship, her identity will be prohibited from publication and disclosure. The interests of justice are better served by the prohibition of that publication and prohibiting disclosure than by promoting the open justice principle. This weighting of the scales in favour of prohibition of publication of identifying information is recognised by the statutory prohibitions in legislation prohibiting disclosure of the identity of children who are involved in an application to the Children’s Court, and the provisions relating to criminal proceedings involving a child victim: section 105 Children and Young Persons (Care and Protection) Act 1998 (NSW); section 578A of the Crimes Act 1900 (NSW); section 15A of the Children (Criminal Proceedings) Act 1987 (NSW). Each of those provisions are applicable in the circumstances of this matter.

  2. CVL applied for a Working with Children Check Clearance on 20 November 2014 and subsequently on 4 November 2016 filed in the Tribunal an application for review under section 27 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”) concerning a decision of the Children’s Guardian, made and notified to CVL on 4 November 2015, to refuse her a Working with Children Check Clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.

  3. The application for review under section 27 of the Act in the Tribunal was filed outside the permitted time. An extension of time was granted on 15 December 2016. The applicant was apparently unaware she could apply for legal aid for this application. The applicant was involved in proceedings in the Children’s Court and then the District Court related to this issue for which she was eligible for legal aid and there was little point in conducting another application until those matters resolved. Ultimately a judicial determination was made on 10 June 2016 which resulted in the allocation to the applicant of parental responsibility for her granddaughter, aged 4 years at the time, after the child had experienced 7 placements in other persons’ care. That allocation was subject to a number of undertakings which were given by the applicant to the District Court.

  4. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 do not apply to this particular matter due to the date of the application which was 20 November 2014 prior to the commencement date of the amendments: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. In CHB v Children’s Guardian [2016] NSWCATAD 214 the Tribunal held that section 30(1A) of the Act applies where the Children’s Guardian has made a decision to cancel a person’s Working with Children Check Clearance after the commencement of the amendments and the application for review is made after the commencement of those amendments. Neither party submitted in this matter that section 30(1A) applies in the circumstances of this application.

  5. The applicant was subject to a risk assessment by reason of section 14 and section 15(1) of the Act due to a conviction for assault against a child under section 61 Crimes Act 1900 (NSW). The applicant was thus subject to an assessment requirement by reason of schedule 1(4) of the Act. Following the risk assessment and pursuant to section 18(2) of the Act the Children’s Guardian refused to grant a Working with Children Check Clearance to the applicant.

  6. The applicant seeks a Working with Children Check Clearance, in order to work with children as an authorised carer for her related grandchildren. The applicant also wishes to work in other child related employment which requires a clearance.

  7. The applicant is without a Working with Children Check Clearance now, preventing her from working in “child-related work”: subsections 6(2)(b) and 6(2)(i) of the Act; Section 6(3)(c) of the Act; section 8 of the Act; clause 10 of the Child Protection (Working with Children) Regulation 2013. That means she cannot work as an authorised carer or in other areas she has nominated.

  8. This is an application pursuant to section 27 of the Act. The application for review was heard orally by the Tribunal on 1 September 2017. The respondent opposes the application.

  9. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

  10. Provided that the matters which must be considered in section 30 of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

  11. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.

  12. There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children’s Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.

  13. In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998. It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.

  14. The Tribunal may not lawfully attach conditions which would be permitted by the legislation effectively for the grant of a conditional clearance for this and the additional reasons set out in this decision. A conditional grant of a clearance for the purpose of allowing the applicant to work with conditions and in his chosen area is not permitted by the legislation.

  15. An order has previously been made under section 64(1) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. That order is varied to accord with the explanation referred to earlier in these reasons.

The evidence relied upon in the hearing

  1. The applicant and respondent relied upon documents which were tendered as Exhibits as follows:

  1. Affidavit of the applicant of 9 February 2017: Exhibit 1.

  2. Application dated 11 October 2016 filed 4 November 2016 and annexures: Exhibit 2.

  3. Report by Rossi Lyons, psychologist, dated 22 August 2017: Exhibit 3.

  4. Submissions of the applicant dated 28 August 2017: Exhibit 4.

  5. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 19 December 2016 comprising 766 pages: Exhibit 5.

  6. Further documents filed by the Children’s Guardian on 15 March 2017 comprising 592 pages: Exhibit 6.

  7. Further documents filed by the Children’s Guardian on 28 August 2017 comprising 146 pages: Exhibit 7;

  8. Further documents filed by the Children’s Guardian on 30 August 2017 comprising 249 pages: Exhibit 8.

  9. Submissions of the Children’s Guardian filed 14 August 2017: Exhibit 9.

  1. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil standard of proof which is on the balance of probabilities.

  2. The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]:

“…For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.”

  1. This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.

  2. Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]:

“Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct.”

  1. The Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 (“Bronze Wing”) at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted:

“[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36].

[72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test.

…

[74]Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party.”

  1. The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 (“Karakatsanis “) at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis:

“[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law.

[37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be ‘comfortably satisfied’ of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting ‘a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct’. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])]

[38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).]

‘The notion of ’inexact proof, and indefinite testimony or indirect references [scil. inferences]’ needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.’

[39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present.”(footnotes and references included)

  1. The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017 after granting leave to appeal, dismissed the appeal from Justice Button’s decision and orders in Bronze Wing.

  2. The Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil standard of proof in determining a factual matter: CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61].

  3. The effect of the Act and the ‘practical onus’ which falls on a party notwithstanding the principles referred to in the previous paragraphs of these reasons is as the Act states in section 27(4):

“An applicant must fully disclose to the Tribunal any matters relevant to the application.”

  1. The initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that:

“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.” (Citations omitted)

  1. The currently constituted Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

  1. The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are referred to now and necessarily involve some repetition of previous statements made in earlier decisions, so that the legislative basis of this particular decision is transparent and identified for the parties.

  2. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows:

"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."

  1. There is no definition of “child abuse” contained in the Act. The Children’s Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows:

“Child and young person abuse

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

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

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

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

is guilty of an offence.

Maximum penalty: 200 penalty units.”

  1. The objects of the Act are set out in section 3 which provides:

"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."

  1. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."

  2. "Conviction" as defined in section 5 (1) of the Act “includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.” That is not the circumstance in relation to the applicant.

  3. Pursuant to section 14 of the Act a person becomes subject to an assessment requirement in the circumstances referred to in the section which is as follows:

14 Assessment requirements

A person is subject to an

"assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.

  1. The applicant is subject to an assessment requirement because of the matter referred to in schedule 1(4) and also section 15(3) of the Act.

  2. Pursuant to section 15(1) of the Act the Children’s Guardian must conduct a risk assessment of the applicant. The section relevantly provides as follows:

“15 Assessment of applicants and holders

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

(2) The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(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....”

  1. The hearing before the Tribunal is therefore pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act does not apply to this decision: see section 27 (7) of the Act.

  2. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

  3. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.

  4. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

  5. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

  6. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, 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].

  7. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523.

  8. The Tribunal is required to follow the decision in the Supreme Court BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in the often-cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order:

“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.”

  1. The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children’s Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children’s Guardian at [33]. The reasoning behind the Tribunal’s determination is set out in these reasons.

  2. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.

  3. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.

  4. The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.

  5. In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.

  6. The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following:

"All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."

  1. In the following paragraph the Minister stated:

"While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."

  1. As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.

  2. In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states:

"Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."

  1. If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.

  2. It is the Tribunal’s assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight, are not determinative of the current assessment of risk on the whole of the information before the Tribunal. The applicant in this matter does not seek an approval subject to conditions.

The Issue

  1. As previously referred to, the primary issue before the Tribunal in this application is what the correct and preferable decision is, having regard to the material before the Tribunal in relation to the grant or refusal of a Working with Children Check Clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

  2. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

  3. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].

  4. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

Considerations and the Evidence

  1. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in sub sections 15 (4) of the Act which are more aptly descriptive of that process than is sub sections 30 (1) of the Act. It is relevant to note that the factors contained in the subsections address the same considerations expressed in slightly different language.

  2. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to and consider both sections 30 (1) and section 15 (4) considerations as required by both sections.

  3. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.

  4. Section 15 of the Act relevantly provides as follows:

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,

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

(5) The Children’s Guardian may, but is not required to, notify the holder of a clearance in writing if the Children’s Guardian decides to conduct a risk assessment of the holder.

  1. Section 30 of the Act relevantly provides in relation to this application as follows:

30 Determination of applications and other matters

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

(a) the seriousness of 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.

  1. The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings reciting the required considerations under the Act.

  2. Also, as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant and the circumstances giving rise to the charges he faced: section 63 of the Administrative Decisions Review Act.

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

  1. The applicant is not a disqualified person.

  2. The purpose of the risk assessment is to be protective of children and not punitive of the applicant. The risk assessment identifies factors which are relevant in determining the risk the applicant may pose to children. The legislature has included this particular factor as a matter relevant to the assessment of risk.

  3. The applicant is the mother of 8 children. The applicant’s eldest child has 4 children. The child who was placed under the applicant’s parental responsibility is the second eldest of those four grandchildren.

  4. The applicant has had a lengthy involvement with the Department of Family and Community Services over many years in relation to both her own children and her grandchildren. The history is set out in the documents which have been provided in Exhibit 7.

  5. The applicant was in a relationship with the father of her children from 1993 until 2013. That relationship was characterised by significant and ongoing domestic violence in which the applicant was a victim. There is also a significant history contained within the Police records produced to the Tribunal.

  6. The Department of Family Community Services sought to place the applicant’s granddaughter with her, but could not do so because the applicant was not approved as an authorised carer. The applicant was not approved as an authorised carer because she was not able to obtain a Working with Children Check Clearance. As a result, the applicant sought parental responsibility for the child in the Children’s Court. The applicant was unsuccessful in the Children’s Court but was successful in the District Court. The orders which were made in the District Court provided for supervision by the Department and required undertakings from the applicant including not permitting the child to have contact with her mother unless approved or directed by the Department.

  7. The Minister for Family and Community Services has parental responsibility for each of the applicant’s other grandchildren. The applicant seeks to be a respite carer for some of the other grandchildren. In order to do that she requires a Working with Children Check Clearance.

  8. The applicant is living with her 21-year-old daughter and that daughter’s partner, together with their 2 young children. This is said to be a temporary arrangement. The applicant also has her 13 year old children living with her in addition to her granddaughter who was placed under her parental responsibility by the District Court order.

  9. The applicant was convicted in 2009 of an assault against a 14-year-old child who was an extended family member. That child was a vulnerable child. The applicant responded with immediate physical violence when confronted with behaviour from that child which the applicant found to be insulting. The applicant now says that she was provoked by insults and abuse when she was in a very stressed and distressed state.

  10. This offence resulted in the risk assessment under the Act. The applicant submits that she does not minimise the inappropriateness of her response, but does not consider that the incident was a serious offence. The incident was not at the highest end of the spectrum of offending behaviours. This was, however, a serious offence particularly in the context of assessing risk to children. The applicant was the adult and a relative of the victim. It was an assault of a child.

  11. There were other matters which were relied upon during the course of the hearing which are referred to under a separate sub heading.

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

  1. The assault occurred 8 years ago.

  2. The applicant has since then been involved in numerous incidents where the police have been called and there have been a number of reports in relation to the care of her granddaughter since she has been placed by the District Court order under her care.

  3. The respondent submits that the applicant’s conduct since the “trigger” offence demonstrates a pattern of behaviour which constitutes a real risk to children.

  4. Those matters are referred to in more detail under a separate sub heading.

The age of the person at the time the offences or matters occurred

  1. The applicant was aged 42 years of age at the time of the offence which led to the risk assessment under the Act.

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

  1. The victim of the assault was aged 14.

  2. The Act requires protection of children until the age of 18 years.

  3. The victim was the applicant’s teenage niece and was a vulnerable person. The niece was vulnerable due to her age and also due to her relationship with the applicant.

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

  1. The difference in age between the applicant and the victim was 28 years.

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

  1. The applicant knew that the victim was a child.

The person’s present age

  1. The applicant is aged 50 years at the time of hearing.

The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred

  1. The applicant has a criminal record.

  2. The applicant was convicted and fined $300 for assaulting her former partner in 2012. The applicant entered his apartment after separation, screamed at him, lunged at him, scratched his neck and ripped his shirt. The applicant also damaged items of property and caused the windscreen of his motor vehicle to be broken by some of the items that she threw. The applicant also had a small cut on her hand as a result of smashing one of the mirrors. The applicant declined to provide investigating police with a statement. It was submitted on behalf of the applicant that this incident was not originally raised in the Children’s Guardian original risk assessment. The Tribunal is required to make a decision which is the correct and preferable decision and may have regard to material which may not have been before the Children’s Guardian when the original decision was made. It is also submitted on behalf of the applicant that the incident occurred in circumstances where she was in a long-term violent relationship. It is also submitted that the circumstances no longer apply and the applicant has not been involved in any physical altercations 2012.

  3. The assault which occurred in 2009 upon the applicant’s niece resulted in a conviction and a fine in the absence of the applicant. The police records state that the applicant approached her niece and called her a “cunt” then grabbed her hair, threw her to the ground and punched her. The applicant says that she had separated from her partner and was residing with 6 children in a garage/flat. The applicant states that her niece was taunting her children and when it continued she got very upset and slapped her niece in the face. This occurred in a café. The applicant denies punching her niece. There is no sworn statement from the niece. On the applicant’s version of events an assault took place.

  4. The District Court judgment from 2016 records that the evidence from the applicant that she was told by her niece that as a result of her marital separation she had become homeless and that her husband was a paedophile. The applicant said in evidence in that court that she became angry and slapped her niece who stepped back, lost her footing and fell catching her hair on the applicant’s handbag in the process and also sustaining a scratched nose. There was no contrary evidence in the District Court proceedings. This is more detail than her evidence in her affidavit.

  5. The applicant agrees that she was involved in an argument in 1994 when she was aged 28. This occurred in a public meeting where she assaulted another woman. The applicant says that she was also assaulted. However, the police charged the applicant. The applicant says that she was often angry and attributes this to be in a domestic relationship which was violent.

  6. The applicant also agrees that in 1996 she hit her partner on the head but does not recall the details. The partner called the police and the applicant was charged.

  7. The applicant was reported on a number of occasions for perpetrating violence against her partner when the children were present, such as striking him with a broom handle and reported extended verbal arguments. The applicant obtained an AVO to protect her and the children in her care from her partner in February 2015. That AVO was in force until February 2017. The applicant stated that she would make an application for an extension of this AVO. There is no evidence that this has occurred nor is there an assessment of the risks currently posed by the applicant’s former partner to herself and the children in her care.

  8. The applicant is reported to have a difficult relationship with her eldest daughter. The applicant has been protected from the daughter’s behaviour by an AVO granted in 2016. There is inadequate evidence concerning the current circumstances of the AVO and the current risks posed to the applicant and the children in her care from the applicant’s eldest daughter. In May 2015 the applicant and her eldest daughter attended a case conference with various representatives of child protection agencies and it was reported that the applicant was verbally abused by her daughter. The District Court judgment records that the applicant was in fact struck over the head by her daughter at a counselling session and she did not react in a violent manner “where the inclination to do so must have been compellingly strong.”

  9. The applicant agrees that she has had 3 driving offences, one fraud offence in 1998, contravening an apprehended violence order in 2001, a public order offence in 2009, and destroy/damage property offence in 2012 when the applicant says that she damaged her former partner’s car by bending an aerial after he hit and abused her.

  10. The applicant was involved in an argument with one of her 12-year-old daughters in 2015 when the daughter informed her that she did not want to live with her mother.

  11. The applicant had an argument with her nephew and woke him when he was aged 19 by apparently “ranting and raving”. The nephew was upset and called the police.

  12. In 2011 the applicant was in a public place with a crowd of other persons where it was reported that she approached people “yelling and screaming obscenities.” The applicant was arrested and then later released.

  13. In June 2011 the applicant was reported to have smashed a car window but the matter did not proceed to criminal charges as the victim refused to provide a statement to the police.

  14. The applicant was involved in a dispute with her neighbours and was described as highly agitated and screaming in January 2016. The applicant was issued with a move on direction by the police.

  15. There have been a number of risk of harm reports made to Family and Community Services about the applicant’s care of her granddaughter since the order for parental responsibility was made by the District Court. It has been reported that the applicant permits her daughter to have contact with the granddaughter without supervision. If this occurs then it is a breach of the undertaking which the applicant has given to the District Court. When questioned about this in November 2016, the applicant stated that the granddaughter had no contact with the mother. There is an AVO in place protecting the applicant from her eldest daughter.

  16. There were concerns recorded by the caseworker that the applicant’s home was overcrowded. There were issues raised about the medical care of the granddaughter when the caseworker visited the child at daycare. An assessment was made that the risk level was high, but the granddaughter is considered safe with a safety plan in place.

  17. In December 2016 a risk of harm report was received that the grandchild had nits in her hair and ringworm on her throat. A home visit was made and it was recorded that the child had not received medical treatment necessary for these conditions. A previous carer has commented that the child’s level of hygiene decreased and “she now smells dirty”. The child’s paediatrician contacted Family and Community Services and advised of difficulty engaging with the applicant. It was also reported that the child had scabies and had not attended scheduled speech pathology sessions.

  18. In summary, there are concerns that the applicant does not have the capacity to adequately care for her granddaughter given her own obligations to her children and extended family. The child remains in the applicant’s care with supervision provided by caseworkers and supports put in place in order to support the placement.

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

  1. The Tribunal is to form its own opinion about the likelihood of any repetition of conduct or risk in relation to the applicant independent of any expert opinion. An indicator of future behaviour is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves.

  2. The Tribunal is aware of the caution which should be attached to risk assessments by psychiatrists and psychologists and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 at [67] and BKV v Children’s Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children’s Guardian [2016] NSWCATAD 3 at [91]-[92].

  3. In essence, expert witnesses in this Tribunal have stated that prediction of a relatively uncommon behaviour such as violent or sexual offence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and “gut feeling” play a determinative role in making a judgment.

  4. The applicant relies upon the report of a psychologist, Rossi Lyons. The report indicates that the applicant is capable of caring for her granddaughter but only with the provision of supports, an AVO in place to protect against the eldest daughter, and continuing engagement by the applicant with a counsellor. The applicant told the psychologist that previously she did not recognise that everyone was frightened of her because she was angry all the time. The applicant says that she is now not the same person.

  1. The applicant told the psychologist that she is tired now after having been a carer for many family members since her mother died when she was 15. The applicant told the psychologist that she has “put her life on hold” all this time. The applicant also has her brother’s illness to deal with at this chapter in her life.

  2. The applicant says that she has taken steps to remove herself and her children from a violent domestic environment. The applicant says she has also attended 3 years of counselling which she considers has helped her. The applicant has completed a juvenile justice course, studied for a business certificate, started a theology certificate, participated in domestic violence groups and parenting groups. The applicant is a member of the local religious community. These are all pro-social activities and are evidence that the applicant has made a conscious effort to improve her life skills and become a valuable member of the community.

  3. The applicant is a non-drinker and does not allow anyone in her household to consume alcohol or bring it into her house. The applicant does not use illicit drugs. The applicant has given up smoking cigarettes. Three of the applicant’s grandchildren suffer from foetal alcohol syndrome and one of them has spina bifida with significant developmental delays and health concerns.

  4. The applicant’s eldest daughter had a significant alcohol issue but has attended rehabilitation. The applicant’s brother has been diagnosed with cancer and is not doing well. The applicant would like to support him through his illness especially because he has grandchildren in his care. The applicant says that her faith sustains her and that she knows that “God will look after us”.

  5. The applicant’s twin daughters now aged 13 attend high school, and her daughter aged 16 is in high school and hopes to attend university. Those children live with the applicant. The applicant’s eldest son now aged 23, finished high school and was the first Aboriginal school captain since the school was established. That son has completed a law degree after completing his police certificate course. The psychologist records that he suffered from mental health issues and has returned to live with the applicant. The applicant says that his health has improved but he will require further support. The 22 year old son went through to year 12 and trained as a bank teller before working for an Aboriginal NGO as a contact supervisor. The applicant’s grand daughter attends preschool where she is provided speech therapy.

  6. The applicant is not currently in a relationship with a man and has spent a lot of time and effort in her relationships with her children. The applicant has said that she has complied with her undertakings given to the District Court.

  7. The supervision by the Department of the care of her granddaughter will cease in July 2018. The Department is playing a significant role in supporting and supervising the care of the granddaughter. There is no evidence of the mechanisms to protect the children in the applicant’s care after the supervision by the Department ceases. The applicant has a long-standing history of hostile and aggressive behaviour towards family members including abuse of children and not protecting children from exposure to violent domestic relationships.

  8. The psychologist records that the caseworker from Family and Community Services has major concerns about the quality of care provided by the applicant to the granddaughter. The caseworker identified that the applicant is not working with the department and will not respond to phone calls or messages. The caseworker reported that since the applicant has been on antidepressants she has been much better. The greatest concern held by the Department is the contact between the granddaughter and her mother contrary to the undertakings, and the low level of care the child is receiving. In fact, the Department is considering breaching the applicant for not adhering to her undertakings according to the discussion with the psychologist. This was also raised with the applicant in an interview in December 2016. There was an improvement immediately after that meeting. The caseworker told the psychologist that the applicant’s eldest daughter only attended rehabilitation for a period of one week and didn’t complete the program. This is not the implication from the applicant’s evidence. There have been reports that the granddaughter has had contact with her mother when the mother was drinking alcohol. The applicant has reportedly also been less than diligent with arranging contact between the granddaughter and her siblings.

  9. The psychologist concluded her report by saying:

In conclusion, [the applicant] has had a difficult life in which she has emerged as a confident woman who is committed to her family and who has made significant changes not only to her circumstances but also in her attitudes and knowledge about child safety. She does have a criminal record, but this is in the main part historical. Given the changes she has made in her life, this is very unlikely to be repeated. There is little information currently to suggest that [the applicant] presents a risk of harm to children.”

  1. The Children’s Guardian submits that this report does not constitute an assessment which can be of assistance in undertaking the assessment of risk posed by the applicant to the safety of children. The original report was provided in the context of placement of her granddaughter with her in the Children’s Court proceedings. It is submitted that the report contains useful context to the challenges posed by caring for the children in the applicant’s extended family but is otherwise of limited value. The recommendation of the psychologist in her initial report was that the granddaughter be placed with the applicant as soon as possible. This recommendation was conditional upon the granddaughter having regular access to health monitoring, early intervention services and childcare. It was also recommended that the applicant continue with counselling to help her to grow in strength, confidence and ability to support her family members. The counselling through the health centre stopped in 2015 and some of those sessions were by phone according to the evidence given to the Tribunal. There was no adequate reason given by the applicant as to why this useful process has ceased. The psychologist has not used any risk assessment tools to come to her conclusion and has arrived at an opinion based on clinical presentation and information provided to the psychologist. Some of the information from the caseworker would appear to have been discounted by the psychologist because there is obviously some concern about risk of harm and neglect to all the children in the applicant’s care.

  2. The evidence in the District Court proceedings from the Aboriginal Community Liaison Officer at the police station was to the effect that the decision to remove herself from contact with her husband was a turning point in the applicant’s life, and until that point had been reached with the assistance of police and counselling services, “the [applicant] had been completely powerless from disengaging herself from the abusive and intimidating relationship she had with her now estranged husband.”

  3. It is significant that the care of the granddaughter was subject to a number of undertakings which were to bolster and support the care provided by the applicant together with supervision by the Department. A Working with Children Check Clearance cannot be made subject to conditions. There is no process to provide supervision once a Working with Children Check Clearance is granted.

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

  1. The applicant has provided information including the material recorded in the exhibits.

  2. The Children’s Guardian has not submitted that the applicant has failed to provide relevant information.

  3. The applicant has provided adequate information in support of her application.

Any other matters that the Children’s Guardian considers necessary

  1. The Children’s Guardian made submissions addressing those matters which the Children’s Guardian considers necessary.

  2. The Children’s Guardian submits that there should not be granted a Working with Children Check Clearance.

  3. The evidence in the District Court proceedings from a representative of the Department was that there were no serious concerns about the applicant’s ability to manage the day-to-day care of her granddaughter. The identified concern was the ability of the applicant to manage or control the relationship or contact between the child and her mother (the applicant’s own daughter). It appears from the evidence before the Tribunal that those concerns have been realised and there is the additional concern about the day-to-day care of the granddaughter.

Consideration

  1. The Act is designed to be protective and the Minister’s second reading speech identifies that there are a number of matters which may be relevant to an assessment of risk.

  2. The applicant says that sometime during 2012 she apologised to her niece about the incident which occurred in 2009. The applicant says that the relationship between her niece and herself has now been mended. The applicant says the incident resulted from the stress of being homeless with children and trying to separate from her former partner. The applicant has shown remorse for her actions.

  3. In Children’s Guardian v BRL [2016] NSWSC 1206 Justice Fagan upheld the determination of the Tribunal to admit into evidence four statements for the limited purpose of proving that the allegations they contained had been made and not as evidence of the truth of the assertions.

  4. Similarly, the allegations made against the applicant which she has not specifically admitted are proof that the allegations have been made, but not evidence of the truth of the assertions.

  5. The Tribunal may find in the circumstances of this matter that there is an unacceptable risk and the circumstances surrounding the incidents are such that the existence of risk has not been disproven.

  6. The judgment of the District Court records that the Judge accepted the evidence of the psychologist and it was considered unlikely by that judge that the applicant would respond with physical violence to a repetition of provocative taunting due to her significant personal growth and resilience since those events. In addition, there was no dispute in the District Court that the granddaughter “has a significant and enduring attachment to her maternal grandmother”. In fact, the granddaughter would have remained in the care of her grandmother but for the fact that the applicant did not have a Working with Children Check Clearance. Without such a clearance the grandmother could not be an authorised carer and provide care to her granddaughter whilst she remained under the parental responsibility of the Minister. The Court has the power to allocate parental responsibility to the grandmother if it is otherwise in the best interests or “safety, welfare and well-being” of the child and undertakings or conditions and supervision can be implemented as part of that process to ensure a level of safety, welfare and well-being.

  7. The applicant is now under a significant burden due to her care responsibilities for her extended family.

  8. Having regard to all of the matters referred to previously in these reasons it is the Tribunal’s determination that there is an unacceptable risk of harm posed by the applicant. That unacceptable risk of harm can exist independent of a finding on the balance of probabilities that particular events have occurred: BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33]; Children’s Guardian v CFW [2016] NSWSC 1406.

  9. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

Conclusion

  1. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.

  2. Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]; Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

  3. If the applicant is granted a clearance she may work with any children of any age. No conditions may be imposed upon the grant of a clearance. While the care of her granddaughter pursuant to an order made by the District Court can be monitored and is in the interests of that child at a particular point in time, if circumstances continue to deteriorate in terms of the quality of care provided to the child, the Department can intervene and take appropriate steps. That could include a further application to the Children’s Court under section 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to provide more supervision or to remove the child from her care. No such application has been foreshadowed in the evidence before the Tribunal, however, it is a legitimate avenue to ensure that the child is appropriately placed and looked after. A clearance cannot be granted subject to conditions and there is no similar provision for monitoring the circumstances of the applicant, if she were granted a clearance, to ensure that she continues to be an appropriate person to work with children in any area of endeavour.

  4. The applicant’s granddaughter who is now aged 5 years had a pre-existing relationship with her grandmother and the uncontradicted evidence in the District Court is that there is a significant attachment between them. The granddaughter had 7 placements in a period of 18 months while out of the care of her parents. This is a significant factor in the determination of the District Court proceedings. The District Court was in the position of balancing the risk of harm to the granddaughter posed by her grandmother and the circumstances in which the grandmother proposed to care for her against the risk of harm which multiple placements posed to the well-known unsatisfactory developmental trajectory of a child in a position of multiple placements such as experienced by the granddaughter. The District Court specifically declined to comment on the likely outcome of this application for a clearance.

  5. The fact that the District Court made an order allocating parental responsibility for her grand-daughter to the applicant and the circumstances in which that has occurred as referred to previously does not determine the outcome of this application for the reasons which have already been given.

  6. The Children’s Guardian considered that the applicant’s records and extensive child protection history means that she poses a risk to the safety of children. That decision is also the correct and preferable decision based on all the evidence now presented.

  7. The evidence received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does currently pose a risk to children. 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.

  8. It is concluded on the balance of probabilities that having regard to the circumstances surrounding the alleged conduct by the applicant that the existence of a real and appreciable risk to children has not been disproven: see BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33].

  9. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant does pose a risk to the safety of children and should not have a Working with Children Check Clearance. The decision of the Children’s Guardian should therefore be confirmed.

Orders

  1. The orders of the Tribunal are that:

  1. The decision of the Children’s Guardian on 4 November 2015 to refuse to grant the applicant a Working with Children Check Clearance under the Child Protection (Working with Children) Act 2012 is confirmed.

  2. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

  3. It is noted that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Registrar

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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: 10 January 2018

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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CHB v Children's Guardian [2016] NSWCATAD 214
YG & GG v Minister for Community Services [2002] NSWCA 247
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126