CXH v Children's Guardian

[2017] NSWCATAD 344

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CXH v Children’s Guardian [2017] NSWCATAD 344
Hearing dates:	6 June 2017, Submissions closed 18/7/2017
Date of orders:	28 November 2017
Decision date:	28 November 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M Bolt, General Member
Decision:	(1) The decision of the respondent dated 30 November 2016 to refuse the applicant’s Working with Children Check clearance is affirmed.
Catchwords:	CHILD Protection – Working with children – Criminal history – Offences of violence – Extensive history – Period of time since offences – Conceded findings – Requirement for clearance - Exemption
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998(Repealed) Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Evidence Act 1995
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 111 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 R v Commission for Children and Young People [2002] NSWIRComm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 CGP v Children’s Guardian [2017] NSWCATAD 12 BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 Children’s Guardian v CKF [2017] NSWSC 893 BKE v Children’s Guardian [2015] NSWSC 523 M v M (1988) 166 CLR (HCA)
Texts Cited:	Nil
Category:	Principal judgment
Parties:	CXH (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: N/A (Applicant) A Douglas-Baker (Respondent)   Solicitors: Self represented (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00002860
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

1. On 8 December 2016 the applicant applied for administrative review in the Tribunal of a decision of the respondent to refuse a working with children check clearance. That decision was made on 30 November 2016.

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

3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of section 30 (1) of the Child Protection (Working with Children) Act 2012, (the Act), the Tribunal finds that the applicant is currently a real and appreciable risk to the safety and well-being of children and young persons. This finding is based on an assessment of the applicant’s extremely violent past and the lack of any sufficient evidence (notwithstanding his satisfactory release from parole conditions) qualifying a low risk when contrasted with the violent past behaviour directed at individuals. We note that the jurisdiction is protective. As a result the application must be refused.

4. On 2 March 2017 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.

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

6. These proceedings arise because on 30 November 2016, the Children's Guardian made a decision to cancel CXH’s working with children check clearance. The applicant stated in his application that he was notified of the decision on 30 November 2016, and as a result his application for administrative review has been received within time.

Background

7. In February 2015 the applicant applied for a Working with Children Check clearance from the respondent. The applicant may have required a clearance for his volunteer work with children’s sport, in particular coaching players and teams affiliated with his son’s club. However as we observe later in these reasons, for the stated purpose it may be that legally the applicant is not required to hold a clearance, unless his circumstances were to change. As his initial application was made prior to November 2015 the provisions of section 30 (1A) of the Act do not apply to these proceedings.

8. Whilst processing the application the respondent became aware of a conviction for an offence under the then section 90A of the Crimes Act 1900 (relating to a kidnapping), which equated to a ‘trigger offence’ creating an assessment requirement as described in the Act. The offence was commensurate with an offence listed in Schedule 1 of the Act, requiring the respondent to conduct a risk assessment of the applicant pursuant to section 15 of the Act.

9. Section 15 relevantly provides:

15 Assessment of applicants and holders

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

10. During the period following the application in 2015 to late 2016 the respondent processed the application by conducting its risk assessment of the applicant. On 24 October 2016 the respondent notified the applicant of its proposal to refuse his application by way of a Notice of Proposed Refusal of Application.

11. The respondent then concluded the assessment in November 2016 and on 30 November 2016 issued a Notice of Final Decision under section 20 of the Act (granting or refusing a clearance).

12. As a result of the assessment the respondent was satisfied that the applicant posed a risk to the safety of children and as a result refused to issue the clearance due to the inability to discharge the provisions of section 18 (2) of the Act. In reaching that position the respondent was required to make findings in respect of the matters required under section 15 of the Act. These findings were made on the papers after seeking further information from the applicant.

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.

13. The respondent found that the applicant’s record that triggered the risk assessment is of a serious nature and that the multiple charges and convictions in relation to serious physical assaults in a domestic violence context were of concern. These assaults occurred against multiple female partners and at times in the presence of children. The respondent noted that the presence of children did not deter the applicant’s violent behaviour, and that whilst the decade of crime free behaviour is acknowledged, the period of time of his offending behaviour and the extensive violence satisfied the Children’s Guardian that he posed a risk to the safety of children.

The application for administrative review

14. The grounds of the substantive application are:

• I would like the whole decision reviewed please as this was a very long time ago and I’ve worked hard to change my life and I am not that person any more.

15. 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

16. 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).

17. 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).

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

(2) ………...

(3) ………...

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

(5), (6) (Repealed)

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

25. 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

26. 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].

27. 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].

28. 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.

29. 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.

30. 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. Whilst the applicant applied for a volunteer clearance, we understand that from a legal (rather than administrative perspective), if the Tribunal grants the applicant a clearance he would be free to work with children in any context. Other than the administrative difference between volunteer and employee / paid clearances, a Working with Children Clearance is otherwise unconditional.

31. 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 25 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).

32. 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". ...'

33. 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.

34. 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

35. The primary issue before the Tribunal in this application as outlined at paragraph 15 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

36. The matter was heard on 6 June 2017 and at the conclusion the Tribunal made orders giving the parties the opportunity to file and serve written submissions should they wish. The filing of submissions closed on 18 July 2017 at which time the Tribunal reserved its decision. The applicant represented himself and respondent was legally represented. We are satisfied that both parties (and in particular the applicant) were afforded the requisite procedural fairness in the conduct of the proceedings.

37. The applicant gave evidence, as did his expert. The proposed (lay) witness was not required (due to time constraints) and the parties were content for that evidence to be dealt with on the papers.

Written Evidence

Applicant’s written material

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

• Exhibit ‘A 1’ the application for administrative review dated 8 December 2016.

• Exhibit ‘A 2’ a reference from ‘A.R.’

• Exhibit ‘A 3’ 15 certificates attesting to the applicant’s achievements.

• Exhibit ‘A 4’ a reference from ‘F.A.’

• Exhibit ‘A 5’ a reference from ‘M.S.’

• Exhibit ‘A 6’ report from Psychologist Sam Albassit.

Respondent’s written material

39. The respondent filed substantial material under both section 58 of the ADR Act and material obtained since the commencement of the proceedings. (5 volumes). Whilst the respondent did not call any witnesses, substantial cross-examination of the applicant occurred at hearing.

40. The respondent helpfully re-filed their material in a ‘tender bundle’ whereby the five volumes were condensed into two relevant tender bundles.

Submissions

41. The respondent filed detailed written submissions prior to the hearing and after the hearing, and applicant filed submissions after the hearing.

42. As the evidence concluded late on the day of the hearing formal oral submissions were not made, and for this reason the opportunity to make further submissions was given to the parties.

Applicant’s Evidence at Hearing

43. In evidence in chief the applicant stated that he did not wish to contest any of his crimes. In addition he understood that on three occasions children were present when he engaged in violent offending.

44. His current situation is that he has his eight year old son and another child on the way. He has the eight year old on the weekends. He tries to make a productive use of his life. Whilst his mentoring and coaching initially only was about rugby league it was ‘no longer just about football anymore’.

45. In respect of the trigger offence (the kidnapping) the applicant’s evidence was that he did not know that there was a child present at the time. The applicant gave evidence how his offending past is now behind him and stated that all of his children were now ‘back in his life’ and he saw them every weekend. He currently works five days a week and sometimes works six days. His life is disciplined and productive. The Tribunal inquired as to his previous drug use and the applicant stated that he was a ‘poly user’ in that he would use any drug available during his offending period.

46. The applicant’s evidence was that he used ‘speed’ (amphetamines), ‘Ice’ (meth amphetamine) for 15-20 years. He also used heroin, cannabis, LSD and ecstasy. He progressed to amphetamines from about 18 years of age, but his earliest drug use was around 12 years of age.

47. The applicant’s evidence was that he no longer uses hard drugs but occasionally smoked ‘pot’. He has had access to his 8 years old son every weekend since he was 4. The applicant stated in respect of his drug use that he was ‘good in jail’ but when he was released he would ‘use drugs again’. He had worked for his current employer for the last 18 months at the time of the hearing.

48. When taken to his prior violence towards women the applicant advised that he had apologised to all of his prior victims and referred to his involvement in a pro female / anti violence against women rugby league event / program. The applicant stated in his evidence that he no longer thinks the way that he did, in respect of women, society and getting whatever he could for himself.

49. The applicant referred to the 2004 Apprehended Violence Order (AVO) as being placed on him by one of his victims ‘W’ when he was in prison. His most recent charge was in 2006 (in respect of cannabis possession). Post parole he attended a facility for 9 months and did some courses. The parenting course he did twice in order to assist with how he would manage his children after many years in a crime cycle.

50. In cross-examination the applicant was taken to his ‘Ngara Nura Unit’ certificate (from Exhibit ‘A 3’). The respondent sought to clarify the period that the certificate covered, and the applicant’s evidence was that he stayed on for a further period at the Unit. The Tribunal notes that the evidence on these issues and when the applicant was ultimately paroled were somewhat uncertain in the applicant’s recollection. We do not infer anything adverse in that evidence.

51. It appeared from the evidence filed by the respondent (that the applicant was taken to in cross examination) that there were further inconsistencies or discrepancies in his recollection and the paper records. It appeared that the applicant’s most recent non-parole period expired in mid 2006 and his sentence expired in late 2007 (albeit having been released prior to 2007).

52. The applicant was taken to some of his violent incidents. When asked why he punched a male and a female (his partner) in the face, the applicant advised that he had caught them having sex. When asked whether that sexual act justified being assaulted the applicant said it did not. The applicant stated that he was ‘in a rage’ and ‘angry that they were having sex’, and he could hear his daughter crying in the next room.

53. In respect of the armed robbery / kidnapping trigger matter, the applicant stated that the matter arose over a sum of money ($4,000). There was a dispute about how quickly the applicant ‘abandoned’ the crime once he knew a child was present (in the car which he had asked the victim to drive him in). After being pressed the applicant conceded that yes he did decide in his mind to abandon the matter, but asked the driver / victim to take him to a specific suburb prior to alighting from the car. The sum of money was under the seat and he only saw the money (verified it’s presence) as he folded the seat forward to get out of the car at the end of his journey.

54. The applicant gave evidence that the jury found him guilty and he considered appealing against the severity of the sentence. An appeal was filed but the applicant had it withdrawn as he did not want to ‘risk extra time’.

55. Further cross-examination occurred about violence with another partner. The applicant admitted hitting this partner in 1991 but says that it was in response to her throwing a box of clothes out the window of a multi story unit.

56. Further matters were raised with the applicant concerning his apparent breach of work release conditions where he went to a victims home in 1997 contrary to the terms of an AVO. A weekend leave application was also apparently breached whereby he did not comply with the terms. There was much dispute in the evidence about this whereby Counsel suggested that the applicant was not being truthful. The Tribunal observes that at various times the applicant appeared confused or mistaken in his evidence and recollection. In this regard we note the applicant’s evidence during evidence in chief whereby he stated in response to a question as to whether he possessed a recollection of his crimes, the applicant answered: ‘Because of the drugs, some things I don’t or they’re sort of out of sequence..’.

57. In 1997 the applicant breached an AVO and received a Court (section 556A Crimes Act) order and various Corrective Services sanctions. There was evidence that other inmates were contacting a former partner (from prison on his behalf) in breach of the applicant ‘s AVO.

58. In cross-examination the applicant gave evidence that towards the end of his parole period he started using speed again. The applicant was charged with an offence in April 2001 of assaulting his partner in the presence of her two children. The partner was dragged off the bed by her hair and she was punched about the head. The applicant could not recall / could not remember the specifics of this incident in his evidence.

59. The applicant admitted that he could have pulled the victims hair in a rage and agreed that he had been violent towards her. His evidence was that he ‘was on amphetamines every day’. There was a dispute about a July 2001 incident and whether it occurred in the bedroom or the lounge room. This discrepancy arises from the alleged use / presence of a Stanley knife, which on the applicant’s evidence was only in the lounge room or kitchen. However the applicant could not recall the specifics but had some recollection. The applicant agreed with Counsel’s proposition that he struck the victim in the bedroom.

60. When taken to a police statement of the witness dated 29 July 2002 the applicant denied any of the ‘adverse’ matters raised in that statement such as trying to get the victim to lie and cover for his behaviour to authorities. An incident where a member of the public approached the victim concerned about her welfare was denied by the applicant.

61. In respect of assault offences at Liverpool in October 2001 the applicant stated that he pleaded guilty on the day of his trial as he did not want the children to give evidence. The applicant then conceded that children were present at the time of that assault and clarified that there were five children present in total, three of the victim’s children and two of his own.

62. Evidence was given about the 2007 drug possession matter, and a 2008 matter arising from a workplace incident. When taken to that incident the applicant said that he had sprained his ankle and was on workers compensation payments. The payments ceased and the applicant became upset and telephoned his employer and asked for money. The employer refused but said that it could be sorted out. The applicant admitted in his evidence to threatening the employer (but not making any threat against his life).

63. The applicant denied making or initiating any threats against children or families of his victims (be they partners or employers). In the applicant’s view any threats were in response to threats made to him.

64. The applicant was taken to a Community Services report and he denied hitting a child (‘J’) across the face. The applicant also denied another serious incident involving ‘J’ and stated that the bruising was apparent due to ‘J’ being diabetic. The Tribunal notes that there were no positive findings by the Department. A 2013 minor violent incident involving a taxi was denied as being problematic by the applicant.

65. Various questions were put to the applicant about traffic matters, including speeding in more recent times in a school zone. The Tribunal asked the respondent’s Counsel whether they were submitting that the fact that the traffic matter occurred in a School Zone – then that went somehow to the substantive issues before the Tribunal. The respondent submitted that it did. The Tribunal disagrees with that proposition in the absence of any pattern of a particular breach of the uniform national road rules (Australian Road Rules).

66. In re-examination the applicant stated that he had previously had a gambling problem and had two or three suicide attempts. The applicant was given a section 128 Evidence Act warning about some drug crimes. The applicant was content to answer and did not require a Certificate under the section. The applicant was accused of being involved in drug supply in prison but was actually not involved.

67. The applicant clarified what he told his psychologist concerning his period of drug use / abstinence, when children were present / involved in his offending, and the circumstances of the armed robbery / kidnapping.

Expert Evidence

68. Sam Albassit gave evidence. In evidence in chief the applicant indicated that he had no questions (at this stage) for his expert.

69. In cross-examination he stated that he had been a Registered psychologist since 2005. The expert advised that he had prepared 30 or 40 Court reports in the past two or three years. He was aware of the Expert Witness Code of Conduct and the primary duty of the expert to the Court or Tribunal. He had neglected to refer to the Code in his report as he was unsure as to who it was going to.

70. The expert saw the applicant for the first time on the 8th of April 2017 and consulted with him again on 13 April 2017. The expert had not seen the applicant prior to April 2017, however he could not be sure whether the applicant had seen a different practitioner previously. His evidence was that he saw the applicant on two occasions and intended to see him again.

71. The expert stated that he took a detailed history of the applicant. When asked about the lack of any detailed criminal history the expert advised that was because the report was based on his mainly general questions. The expert understood that the applicant needed a psychological assessment in order to see if he could work with children again.

72. The expert advised that his report was based on a number of factors including administering of the DASS 21 and the process was also based on the applicant’s own self reporting and the clinicians own expertise.

73. The expert gave evidence that he did not administer any risk assessment tools or processes to the applicant. The expert noted the applicant’s significant ability to change his life since around 2002 and his involvement with rugby league and his children, and living a pretty normal life in that time.

74. In re-examination the applicant asked the expert whether he mentioned his domestic violence history and matters during their assessment, but that the expert told him to focus on the armed robbery / kidnapping. The expert agreed with the proposition.

75. The respondent asked a question reply concerning what documentation the applicant provided the expert. The expert advised that he received a treating doctor’s report, and a mental health plan. The expert confirmed that he did not have any material from the Children’s Guardian including the decision refusing the clearance or any police material.

Respondent’s Submissions

76. The respondent in written submissions set out the applicable law and matters under section 30 (1) of the Act. In closing submissions the respondent urged the Tribunal to have regard to the sentencing remarks of judges Rothman (CCA), Finnane (DC) and Neild (DC) in respect of the seriousness and circumstances of the applicant’s offending and drug use. We do not repeat those remarks here but note that they are extremely strong in the context of the serious offences for which sentencing was occurring.

77. The respondent submitted that the applicant still does not accept responsibility (even during his evidence) for his past behaviour and blames his actions on the company he kept and hard drugs.

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

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.

79. The applicant's application to the Tribunal is brought about by an adverse risk assessment of him by the respondent. The applicant has an extensive history of matters considered in that risk assessment. The trigger matter is considered serious as (a) it appears in the schedule and (b) it involved the detaining of advantage / kidnapping of multiple victims including one child.

80. The applicant’s extensive history from 1990 to 2004 involve drug use and violence against women sometimes in the presence of children. The applicant was sentenced to imprisonment for various offences, and has had parole breaches during his sentences. In evidence before the Tribunal the applicant accepted the seriousness of the matters and other than some evidence that he initially did not realise that a child was involved in the trigger matters, he did not seek to broadly diminish the seriousness of his violent actions. There is some evidence of violence towards partners in the immediate presence of children (eg: holding a child).

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

81. The allegations relate to matters of violence in the context of addiction to hard drugs and what could be determined at times as psychotic and delusional behaviour. Whilst the applicant was released from prison and has been broadly crime free for approximately 10 years, a number of reports have been made in the intervening period concerning threats and implied violence as well as drug use. There is evidence of pro-social matters and a productive occupational and social life in the community in recent years.

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

82. The applicant was approximately 21 years of age at the time of his initial records of violence and 42 years of age at the time of the most recent charge matter. In excess of two thirds of the applicant’s adult life has been concerned with offending, drug use and the criminal justice system.

(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.

83. The victims in the allegations and charges were aged between 1 and 42 years of age at the time. Whilst the applicant denies that any of the victims were children, he concedes that children were at times present when offences occurred including breaches of AVO’s and similar matters. The applicant appeared to concede that a child was present in the vehicle when the 1990 kidnapping incident occurred.

84. In our view nearly all of the victims were somehow vulnerable, in that they were female persons, and the applicant being male and often in a drug affected rage was particularly physically stronger than his victims. Clearly where any children were involved then they were especially vulnerable.

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

85. Based on the age range set out in paragraph 82 and 83 (above) the difference in age between the applicant and the victims was between 4 and 38 years. Nearly all of the applicant’s victims were persons well known to him, partners or their family.

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

86. The applicant was either the father of a child present, or partner of the children’s mother, in the instances where children were involved, and therefore knew that they were children. There is evidence that in respect of the kidnapping matter the applicant did not know that a child was present.

(g) The person's present age.

87. At the time of the hearing the applicant was 52 years old.

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

88. The applicant has a substantial criminal record. It has been considered by sentencing judicial officers as being at the more serious end of offending for the charges / indictments preferred against the applicant. In the years up until recently the applicant re-offended whilst still under conditions of his sentence (parole or bond) on a number of occasions.

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

89. The Applicant provided a psychological report in support of his application from a registered psychologist. The Psychologist assessed or evaluated the applicant’s level of risk to the safety of children and opined that the applicant ‘is fit to work with children of all ages and poses no threat to their safety or their well-being.’

90. It is clear that if the applicant was to return to the manner of offending which characterised the first 25 years of his adult life, then the adverse impact on children would be significant.

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

91. The applicant tendered a number of character references in his support. A compelling reference (Exhibit A 5) is from one of his sons. Whilst it is demonstratively positive and attests to the significant achievements the applicant has undertaken in the last decade, it is neither independent or objective. Whilst the Tribunal accepts the author’s observations as to his own experiences and what he observed, as well as his father’s achievements, unfortunately the reference is only of limited weight. We note that the reference appears to attribute all of the problems to drug use and abuse.

92. Exhibit’s A 2, A 3, and A 4 are all positive but do not provide sufficient evidence to ascertain his current level of risk. Positively they verify matters which the Tribunal accepts from the applicant’s own evidence about his significantly changed circumstances.

93. The applicant filed written submissions on 5 July 2017, which mainly go to his current positive and pro-social circumstances. The applicant asserts that he now possesses ‘high moral standards’ that the applicant ‘lives (his) life by every day’. The applicant asks the Tribunal to see him for the person he is now, not the person that he was.

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

94. There is material obtained from Queensland within the respondent’s section 58 and 31 material.

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

95. 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. The respondent maintained their position that the clearance should be refused. In addition they submitted that little weight can be attributed to the expert report, due to it’s limited scope and assessment of all the relevant matters in the applicant’s past.

The statutory approach

96. Then case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. Unlike the facts in BKE, the vast majority of matters in the current case were settled, in that the Courts had made positive findings on the conduct and the applicant did not resile from that position. In addition BKE concerned an enabling order under section 28 of the Act.

At paragraphs 29- 33 of BKE the Court observed:

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

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

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

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

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

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

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

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

97. We note that the numerous matters in the applicant’s history are positively found (as a matter of both judicial record and as conceded by the applicant at hearing) and for completeness we so find.

Further Consideration

98. 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.

99. However, all material has been considered by us in coming to a conclusion about the ultimate consideration for the Tribunal. Whilst we note the material of the expert witness, because of the limitations of the assessment, the lack of any detailed history and documentation we find that we are not able to give it significant weight.

100. Our substantive role is to assess risk, and whether specifically the applicant poses a risk to the safety and well being of children and young people. We have based our consideration on all of the evidence given by the applicant at haring (and in documentary form), and for this reasons we have set out above much of his evidence at hearing in detail.

101. We acknowledge the applicant’s motivation in applying for this WWCC to facilitate his relationship with his sons and their interest in rugby league, as verified in exhibits ‘A 2’ and ‘A 4’.

102. We also note that the applicant may not legally require a clearance in order to undertake the volunteer duties whilst his own child is in the team in accordance with the Regulation. However we understand that apparently the club ‘requires’ him (and others) to apply for a WWCC. This is not a matter that we are able to address formally in these proceedings.

103. In addition we are not able to impose conditions on a clearance in that we cannot authorise the applicant to only work / volunteer with children at his Club.

104. Having regard to much of the sentencing remarks provided by the respondent, the fact that this is a protective jurisdiction, the serious and violent nature of the applicant’s criminal history, the lack of sufficient passage of time since his changed circumstances, and the limited weight which we can give to the expert report, we remain concerned at the applicant’s level of risk and suitability to remain safe with children. His current matters stand in his favour however even though there is no presumption that the applicant is a risk (as this is not an application for an enabling order), the evidence leads us to have concerns.

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

106. 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 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 whilst the applicant appears to have sufficient insight into the impact that his violent past behaviour has had on his victims, and the effect of such behaviour on children, having considered his evidence at hearing, and post hearing written submissions, we are not satisfied that at this stage there has been a sufficient passage of time since the cessation of his violent offending.

Section 30 (1A) consideration

107. The section does not apply to these proceedings whether a primary finding is made or otherwise.

Conclusion

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

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

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

111. It therefore follows that the correct and preferable decision is for the Tribunal to affirm the decision of the Children's Guardian / Respondent The application will therefore be refused.

Orders

1. The decision of the respondent dated 30 November 2016 to refuse the applicant’s Working with Children Check clearance is affirmed.

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

Registrar

Decision last updated: 28 November 2017