CYY v Children's Guardian (No 2)

[2017] NSWCATAD 262

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CYY v Children’s Guardian (No. 2) [2017] NSWCATAD 262
Hearing dates:	5 June 2017
Date of orders:	29 August 2017
Decision date:	29 August 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant, Senior Member R Royer, General Member
Decision:	(1) The decision of the Children’s Guardian dated 21 February 2017 to refuse to grant the applicant a Working With Children Check clearance is set aside.  (2) In substitution for that decision, the following decision is made; the applicant is granted a Working With Children Check clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – Working With Children Check clearance – applicant is a party to ongoing family law dispute – charges of assaulting child dismissed by court – other allegations of domestic violence against applicant - whether applicant poses a risk to safety of children – assessment of risk – correct and preferable decision
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 Crimes Act 1900
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111 BKE v Office of the Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Chlldren’s Guardian v CKF [2017] NSWSC 893 Commission for Children and Young People v V [2002] NSWSC 949 M v M [1988] HCA 68;[1988] 166 CLR 69 McDonald v Director General of Social Security [1984] 1 FCR 354;6 ALD 6 Office of Children’s Guardian v CFW [2016]1406 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (n0.2) 3 ALD 88 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	CYY (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: E Windsor (Respondent) L Hamilton (Applicant)   Solicitors: Taylor & Scott Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00063182
Publication restriction:	Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the name of any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the Tribunal.

REASONS FOR DECISION

1. On 21 February 2017, the Children’s Guardian decided to refuse to grant the applicant a Working With Children Check clearance (‘clearance’). This is a review of that decision.

2. The assessment was triggered by the applicant being charged in June 2012 with assaulting his 3 year old daughter. The charge, assault occasioning actual bodily harm falls within clause 1 (2)(a) of Schedule 1 of the Child Protection (Working with Children) Act 2012 NSW (‘the Act’) and therefore requires the Children’s Guardian to carry out an assessment. The charges were dismissed by the Local Court. However, the Children’s Guardian considered the circumstances of the allegation and other child protection interventions against the applicant and decided on balance, he posed a risk to the safety of children.

3. The Tribunal has reviewed the matter and decided the applicant does not pose a risk to the safety of children. This is based on the findings of the Local Court Magistrate, who dismissed the charges against the applicant and the context of the child protection allegations being made in an acrimonious family law dispute. The reasons and orders are set out below.

4. To ensure that a child under 18 years is not identified the Tribunal makes an order under s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting publication or broadcasting of any information identifying the names of the applicant, witnesses or evidence given or received in the Tribunal hearing or referred to in the material before the Tribunal, which is likely to identify those persons.

Background

5. The applicant, who will be referred to as ‘CYY’ in these reasons, is 43 years old. He is seeking a clearance so he can continue a tutoring and coaching business he set up in 2012. He tutors high school students and employs other casual tutors on a needs basis.

6. In 2007, CYY married his ex-wife, who will be referred to as ‘AA’ and they have three children now aged 9 years, 8 years and 6 years old. They separated in June 2012 but are not yet divorced. During the relationship, there were marital problems and the parties separated and reconciled several times. Between 2009 and 2016 there were numerous allegations, notifications and reports involving family violence against CYY and these were all matters relied on by the Children’s Guardian, (‘the respondent’) in making their risk assessment.

Details of the trigger offence in 2012

7. The police alleged that on Tuesday 19 June 2012, CYY assaulted his 3 year old daughter. At the time of the incident he was in the house with his then wife, AA who was in her bedroom reading a book. AA heard her 3 year old daughter complaining that she needed to go to the toilet. The toilet is immediately next to the bedroom where AA was reading. AA then heard a loud ‘clapping sound’ and her daughter crying and screaming after she heard the clapping sound. She entered the toilet and observed CYY with the child in his hands and forcefully placing her on the toilet, saying to his daughter ‘don’t scream, don’t talk’. She then heard her daughter say, “Daddy hit me”. AA then confronted CYY saying ‘Did you hit her’ and CYY replying, “don’t talk to me, don’t interfere between me and my children’. She then consoled the child and saw blood coming from her mouth from a cut to her lower lip inside her mouth. She washed the child’s face and then put her daughter and the other children to bed without further incident.

8. Two days after the incident on Thursday 21 June 2012, AA and her older 17 year old daughter, ‘AB’ (step daughter of CYY) took the child to the local medical Centre. The following day on Friday 22 June 2012, AB spoke to a teacher at school about the incident and the police were notified. On the same day AA reported the incident to the police. The police then accompanied AA, AB and the 3 year old daughter to the local hospital for a further medical examination.

9. On the 24 June 2017 CYY participated in an electronically recorded interview with police and denied the allegation. He did not see any injuries to the child at the time of the alleged incident and nor did he see any injuries on the following morning. On the 4 July 2017, AA provided to police a phone recording of the child, allegedly taken immediately after the incident.

10. The police charged CYY with assault occasioning actual bodily harm alleging he slapped the child across her face causing a bruise to her right cheek and a cut to her lower lip.

Finding of the Local Court dismissing the charge against CYY

11. The Tribunal had the benefit of reading the full transcript of the criminal proceedings heard on the 19 & 20 November 2012. Both AA and AB gave evidence for the police case and were cross-examined. Three child care workers and two medical doctors also gave evidence and were cross examined.

12. At the end of the evidence the Magistrate found a prima facie case against CYY. That is, considering the Crown case at its highest, he found CYY had a case to answer. He then provided a considered analysis of the evidence against CYY and concluded:

“I am so dissatisfied at this stage with the Crown case that I am willing to make a finding that the defendant did not strike his daughter, that the injury to her face, as minor as it was, occurred somehow by some means and not by the direct physical force of this defendant.”…

13. The respondent made their adverse assessment of CYY based on allegations, reports, charges and police complaints against CYY between 2009 and 2016 that were sourced from either AA and AB, or both. Therefore, the Tribunal will set out the main findings made by the Magistrate as to the reliability of their evidence, having observed them both give evidence and be cross-examined during the two day hearing.

14. In relation to AA, the Magistrate said the following:

“[On the evening of the incident]… she [AA] made a complaint to no one. She did not even bother to look out for her child’s face to see whether or not there was any other injury or the injury was becoming more apparent. It was almost as though she had forgotten about it on the Wednesday…

[AA] said when queried about the daughter’s allegation of using the words, ‘Daddy hit me’, she said that was said to her before she started her telephone video … [AA] agreed she spoke first to [CYY], in the presence of the child and said;; ‘Did you hit her? How did you hit her? Why did you hit her?”… I find it is after the mother, [AA] had made suggestions by her words to the daughter that her Daddy had hit her, and we are dealing with a three-year-old child.

I cannot understand and fathom how it could be feasible that a strike causing such noise and such screaming and crying, would result in the minute injuries to the child’s face… In my view, any injuries that was occasioned to this young girl is not consistent with the evidence that the Crown asks me to infer by circumstances that it was a hard slap by the young person’s father…

[AA] has, which has been put in evidence, exposed some film of her daughter on her mobile phone… It seems odd and, in fact, completely unbelievable that a mother who was interviewed by police who has Exhibit A, being film of her daughter taken within minutes of being struck forcefully by her father who has a complete falling out with the family by reason of this allegation, would not go to the police station and say, ‘Here is exhibit A. You cannot lose this case. There is film of my daughter taken within minutes.

Now this is not the situation where the police have to beg this woman to produce any phone or she is a reluctant witness. She ultimately went to the police. She made a statement and in fact, was interviewed at the length by police [on 23 June 2012], ultimately, but it was not until 4 July 2012 that this film was produced.

There is also a real issue about the date of the film to start with, whether it was the date that shows 17 June 2012 at a different time, whereas the police when they checked the film saw that it was two days out of date and that is why it will show 17 June and ipso facto the incident was filmed on 19 June. What that tells me is there is no reliability in the film’s date at all. If the time and the date on the phone were not correct then I can equally draw an inference from that, that it was open to [AA] to manipulate the date and time.

So there is an issue about the time in the phone, but the one thing that really drew my attention to the credibility of whether or not this film was taken contemporaneously with the event – and [AA] maintained it was taken within minutes of the event and one can see the daughter still struggling on the toilet, so I can infer from that it is supposed to represent the child within minutes after the event – show a child, as I described earlier with pearly, white eyes, most magnificent dark hazel eyes with spotlessly white surrounding it. Not the slightest capillary or any other element of the eye evidencing the fact that a young girl had been struck across the face so forcefully, screaming out and yelling. Struck by her father in circumstances where I would have to accept as really that it would cause her so much distress that she would cry and the evidence by the mother was she was crying and the evidence of the defendant in the interview was that when he came across his daughter, relevantly; she was crying. I look at the film and there is not the slightest suggestion of tears or red eyes of any distress by the child. The child is sitting on the toilet and is filmed by the mother.

I do not accept that the recording is authentic. I do not accept that the recording taken by the phone was taken within minutes of any alleged incident. It was produced by police a couple of weeks after the incident. It is, as I said, at a time taken with this young child on the toilet in circumstances where I cannot accept it was within minutes of being struck across the face by her father, screaming and crying and the like. This was a concern to me at the outset of the Crown proceedings.

I find it extraordinary, in fact unbelievable, that a mother who at the same time is a wife going through on and off separations from her husband, but a mother who has taken a recording of her child to evidence, enough is enough with the father/ husband, did not even look at her child’s face the following day, the Wednesday. It is almost as if nothing had happened. Her evidence was to the effect that she really did not take any notice of her child’s face on the Wednesday and that on Thursday she saw some apparent bruising and the like and there were inconsistencies about whether it was on the lower lip, upper lip and so on.

I do not accept [AA]’s evidence about her hearing the father slap her child.

… It is not an element of these offences, but I accept for present purposes that there was acrimony between these two and acrimony to the point, where finding, as I do, that I do not accept or believe [AA] in relation to the incident, that would provide her with motivation to lie about what had occurred.”

15. In relation to the evidence of the 17 year old daughter, AB (step-daughter of AA) the Magistrate said the following:

“[AB] was unbelievable. She is 17 years old adored by her three stepsiblings. She adores them, but I say rhetorically, rather conveniently, does not [take] any notice of her [sister’s] face from Tuesday afternoon through to Thursday evening, notwithstanding the close physical proximity of even lying in bed together and of being in the same car together.

Her mother says she even helped assisted in moving the children out of the car, although she says she was not in the car. There is controversy about that. So the caring, sharing, loving 17 year old step sister, for some reason, completely ignores the visage of the [sister] until the Thursday evening.

I have a doubt about whether or not [AB] was awake at the time the alleged incident occurred. Telephone evidence of her – she denies making the phone call, it cannot be right, but she accepted that there was a telephone record in her telephone number to her boyfriend’s telephone number at about 7.44pm.

She asked me to accept that a 17 year old school girl who has just come back from the gym would fall asleep as soon as having a shower. A 17 year old, as I understand with the gym, yes it can make you tired, but it also pumps you up the endorphins, but she suddenly falls asleep, dead to the world, after taking two herbal tablets, shortly after returning home. Within about half an hour she is in sleeping habits the following night and so on.

… I do not accept the evidence of [AB] that she did not pay any attention to the face of her stepsister.

The other issue is this. If a young child was so willing to tell the mother that she was hit by dad and told the staff that she was hit by dad, she was lying in bed with her darling 17 year old stepsister , probably her best friend in the world and does not say anything. Does not say, ‘Daddy hurt me. Daddy hit me. Daddy is a bad man’. Doesn’t say anything. The evidence effectively is, as far as [AB] is concerned, the child was mute for two or three days and there was nothing apparent on her until that Thursday evening.”

16. In relation to the medical evidence the Magistrate said the following:

“I am completely dissatisfied with the medical evidence before the Court.

If it comes to it, I prefer the evidence expressed by Dr Datt over the evidence given by Dr Miranda….that yellow colour of bruising is expected to occur about seven days or within one week or so of trauma. Notwithstanding Dr Datt on 21 June and Dr Miranda on 22 June both said bruising colour was yellowish. I think Dr Miranda referred to it as a bit brown. Whereas on the 21 June both [AA] and her daughter, [AB] say the bruise was blueish-purple or that colour. I am not even sure if we are talking about the same bruise. ..

…There is doubt in my mind about even where the alleged injury was said to have occurred, whether it was left or the right and if it was on the right, in my view, if the police wanted to rely on the evidence of Dr Miranda that it was on the right cheek, it could have occurred on Thursday the 21st June.

If you accept the evidence of Dr Datt, it has probably occurred about a week before and not two days before. There is so much controversy with something supposedly so simple. In my view, the controversy is because of the fact that [AA] is not telling the truth about when she filmed the child, about when the child was injured and how it was the child was injured”.

17. The Magistrate also gives little weight to the evidence of the child care workers as their evidence was contradictory as to observations and any notes or records of injury entered by the workers; “were not done on the basis, in my view, that there was some genuine concern about the welfare of the child, but rather simply because they were aware that the mother was raising these allegations and they wanted to make notations accordingly”.

18. In view of the assessment of the Magistrate that AA and AB were not witnesses of truth, the lack of credible medical evidence and the unequivocal finding of the Magistrate that the CYY did not assault his daughter, the Tribunal finds, on the balance of probabilities, CYY did not assault his daughter.

Applicable Law and legal principles

19. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have Working With Children Check clearances; s.3 of the Act.

20. The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse; s.4 of the Act.

21. The Children’s Guardian will consider those matters set out in s.15(4) of the Act in making a risk assessment. The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children; s.18(2) of the Act

22. A person who has been refused a clearance may apply to the Tribunal for an administrative review of the decision; s.27(1) of the Act. The applicant must fully disclose to the Tribunal any matters relevant to the application; s.27(4) of the Act.

23. In this administrative review, neither party bears the onus of proof. There is no presumption that CYY poses a risk to the safety of children as would be the case under s.28(7) of the Act if he was a disqualified person. See McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6. Woodward J there observed in relation to the AAT (at 356-357(FCR):

There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's.

24. An application under s.27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88.

25. In this matter, there is no presumption that the CYY poses a risk to the safety of children as there would be if the applicant were a disqualified person seeking an enabling order under s.28 of the Act.

24. The jurisdiction of the Tribunal under s 27 of the Act is protective of children and not punitive of an applicant: 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; R v Commission for Children and Young People [2002] NSWlRComm 101.

25. The issue for this Tribunal as required by s.18(2) of the Act is whether CYY, on the balance of probabilities, poses a risk to the safety of children. Young CJ in Commission for Children and Young People v V (2002) NSWSC 949 considered the test to be applied 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”.

28. In determining this application, the Tribunal must first have regard to the factors set out in section 30(1) of the Act. If the Tribunal is considering making an order enabling an applicant to work with children, the Tribunal must then consider the two-part test set out in section 30 (1A) of the Act. CHB at [107]; ZZ v Secretary, Department of Justice [2013] VSC 267.

Consideration of s.30(1) factors and Findings

a) Seriousness of any matters that caused the assessment in relation to the person

29. The respondent has relied on several matters in their reasons for assessing CYY as posing a risk to the safety of children and refusing him a clearance.

Trigger offence of assaulting 3 year old daughter on 19 June 2012

30. CYY was charged with assault occasioning actual bodily harm. The alleged victim was his 3 year old daughter. CYY denied the charge and pleaded not guilty. After a two day hearing in the Local Court, the Magistrate made a finding that CYY did not assault his daughter. The detailed findings are set out above.

Charge of assaulting and stalking AA on 1 April 2009

31. CYY was charged with assaulting and stalking/ intimidating his then wife, AA on 1 April 2009. The charges were based on AA’s complaint to police. The charges were later dismissed by the Court as AA did not give evidence. There was no transcript of the proceedings but the DPP wrote to the respondent and advised the following:

“On 3 June 2009, the Court dismissed the charges. The Magistrate said the victim is a truthful witness who genuinely does not remember what occurred or what she said to police. There was no evidence of elements of the offence before the court, therefore it was unsafe to support any conviction”.

32. As stated by the DPP there is ‘no evidence of the elements of the offence’. The only evidence is the untested allegations of AA. Given the lack of evidence, the Tribunal gives little weight to the 2009 allegations made against CYY by his ex-wife, AA.

FACS reports of family violence against CYY between 2009 to 2016

33. Several reports/notifications were made to FACS against CYY between 2009 to 2016 concerning allegations of family violence including physical abuse, sexual abuse, inadequate supervision and excessive discipline all relating to his own children. The respondent provided in its reasons that on balance these child protection matters contributed to a finding that CYY poses a risk to the safety of children.

34. Apart from the 2009 and 2012 matters referred to above at paragraph 30 and 31, the reports to FACS were sourced from unidentified callers that were then assessed by FACS. Some of the reports appear to be investigated by FACS but no further action is taken.

35. The Tribunal gives little weight to these matters given they are untested and unsubstantiated statements made by unidentified persons that may be the same or different persons and made in the context of an ongoing acrimonious family law dispute.

Finding of NSW Police that CYY attempted to pervert the course of justice

36. In about May 2013, the NSW Police made a finding against CYY that while he was a serving police officer, he attempted to alter the contents of his wife’s statement and provided her with instructions of what to say in Court, thereby attempting to pervert the course of justice in the 2009 criminal proceedings against him. This followed a complaint made by AA to the NSW Police against CYY. AA was interviewed by the police investigator on the 23 June and 7 August 2012. She stated that two days before the Court case on 3 June 2009, CYY wrote in English and Arabic on her statement, and told her what words to say in Court.

37. The police investigator made a finding that on balance of probabilities; [CYY] did attempt to pervert the course of justice by writing on the statement and telling AA what to say in her evidence. The investigator relied on a NSW Police handwriting expert who ‘provided an expert statement in relation to the matter indicating there is very strong support that the handwriting on the statement was written by [CYY].

38. The police forwarded a brief of evidence to the DPP for advice in relation to the matter. The DPP provided advice that there was insufficient evidence to prosecute the matter.

39. The respondent submitted that this internal police finding against CYY should be considered in determining whether CYY poses a risk to the safety of children.

40. The expert statement referred to in the police report was not provided to the Tribunal and the Tribunal is therefore unaware of the handwriting expert’s qualifications, the meaning of ‘very strong support’ and the reasoning of the expert in reaching his or her opinion. There is no other evidence or documentation relating to the investigation provided to the Tribunal.

41. The Tribunal gives no weight to this finding given the lack of evidence apart from the untested statement of AA made more than three years after the incident.

Allegations CYY assaulted his two children on 4 September 2016

42. On the 4 September 2016, AA called FACS and reported that two of her children, who had been staying with CYY, disclosed to her that their father, CYY had hit them and forcefully threw them on the bed. The children aged 7 and 5 years old, both showed her bruises on their legs, knees and buttock. The children were interviewed by FACS officers and the incident was reported to police. The children were medically examined by the Child Protection Unit medical practitioner who found non-specific small bruises that could be the result of either accidental or inflicted trauma. CYY attended a FACS office and was interviewed by a caseworker and denied the allegations. He was interviewed by police and denied the allegations. He told police the children had played sport on the weekend and any injuries or bruises may have occurred playing sport. After investigating the matter, the police officer reported to FACS; “He [CYY] provided a believable version which was conflicting to that supplied by the mother of the victims…I tend to believe him, it looks like to me that he cares very much for the kids, he keeps them active and from the photos I saw they looked happy and healthy. Some details of the report don’t seem right to me’. FACS and police took no further action.

Federal Circuit Court ‘Contravention proceedings’ on 17 February 2017

43. Following the allegations of assault on the 4 September 2016, AA refused to allow her children to spend time with CYY in breach of final family law parenting orders made on 7 October 2014. CYY immediately issued a contravention application in the Federal Circuit Court. AA defended the application arguing she had a ‘reasonable excuse’ to contravene the orders based on the children’s disclosures to her that CYY had assaulted them and they were not safe when spending time with their father.

44. The matter was heard by the Federal Circuit Court Judge on the 17 February 2017. Both CYY and AA were legally represented. Both gave evidence and were cross-examined. A copy of Judgement was filed by CYY in these proceedings. The Judge did not accept the evidence of AA and referred to discrepancies in her evidence. The Judge said:

…”the Court finds that the cumulative effect of the facts as found is not such that there were reasonable grounds for the mother to hold a belief that withholding the children from the father, was necessary to protect the health and safety of the children.

…In summary, the Court finds that the mother has failed to establish on the balance of probabilities a reasonable excuse for the admitted contraventions”.

45. In light of the findings of the Federal Court Judge regarding the 4 September 2016 allegations and the scant material available to support those allegations, the Tribunal gives little weight to them.

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

46. The trigger offence incident was in June 2012. The other allegations and reports of family violence were made between 2009 to 2016.

47. There is no evidence of adverse conduct on the part of the CYY since the trigger offence apart from further allegations that have not been sustained.

48. CYY and AA agreed to final family law orders on 7 October 2014, and have a shared care parenting arrangement for their 3 children in place. This arrangement has continued.

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

49. CYY was 38 years old at the time of the trigger offences. Over the period of 2009 and 2016, when the allegations of family violence were made he was 35 and 42 years old respectively.

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.

50. The victim was 3 years old when the 2012 trigger offence is alleged to have occurred. She was vulnerable given her young age. CYY was also in a position of trust given he was responsible for her care and protection.

51. AA was 34 years old at the time of the alleged assault in April 2009. The two child victims of the alleged assault in 2016 were 5 and 7 years old respectively, and vulnerable given their young age.

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

52. The difference in age between CYY and the child at the time of the trigger offence is approximately 35 years. In relation to the alleged assault in 2016 the difference in age between CYY and the other child victim is approximately 37 years. In relation to the alleged 2009 assault, AA is 1 year younger than CYY.

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

53. CYY was the father of the victim in the trigger offence and would have known she was a child. The other alleged child victim involved in allegations raised by the respondent is also his child.

g) The person’s present age

54. The present age of CYY is 43 years of age.

h) The seriousness of the person’s total criminal record and the conduct of the person since the matters occurred.

55. CYY does not have any criminal record.

i) The likelihood of any repetition by the person of the offences or the conduct or any other matters that caused the assessment and the impact on children of any such repetition

56. The respondent submits that the likelihood of repetition of offending cannot be precluded as CYY has not provided evidence of remedial action which might address any associated risks. There is no expert evidence from a psychologist or psychiatrist assessing risk.

57. CYY denies all the allegations and says that his ex-wife, AA fabricated the allegations against him as part of her ongoing family law dispute with him. He relies on the findings by the Magistrate in the 2012 criminal proceedings that AA is not a witness of truth. The detailed findings are set out above. He also relies on the more recent findings by the Judge in the family law contravention application in February 2017. In that case the Judge found there were “no reasonable grounds for the mother to hold a belief that withholding the children from their father was necessary to protect the health and safety of the children”.

58. There are no other allegations of violence or inappropriate conduct against third parties or non-family members.

59. Having regard to all the evidence before the Tribunal we are satisfied there is little likelihood of CYY engaging in harm towards a child.

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

60. CYY’s counsel submitted that despite the allegations against CYY, the Federal Circuit Court in the family law proceedings on 7 October 2014 made shared parenting orders. The shared care arrangement allows CYY unsupervised time with his three children. This arrangement was approved by the independent children’s lawyer appointed by the Court. The final orders are continuing.

61. CYY’s counsel submitted that FACS have never removed the children from his care. This is despite the several complaints and reports made against CYY that were received, assessed and investigated by FACS. The inference being that FACS have formed the view the children are safe in his care.

62. CYY provided two references from a social worker and volunteer who have worked with him. Both are complimentary about his teaching skills and his friendly and respectful manner in working with children. A further reference from a priest at his local church was provided attesting to his good character and positive relationship with his children. It is not clear if the referees are aware of the allegations of family violence against CYY. He also provided several positive testimonials from parents and high school students who he has taught and coached in his tutoring business. He also provided commendation certificates from working as a serving police officer from community representatives and the NSW Police. He also provided certificates highlighting his continuing education between 1997 to 2014.

63. CYY referred to his service as a police officer from 2003 to 2013 and not being subject to any complaints that were children related. He acknowledged he did receive other complaints but they were performance related. He stated he resigned from the police force in 2013 “because of the continual harassment and allegations made by my ex-wife, which made performing my duties as a police officer with my colleagues very difficult”.

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

64. The respondent submitted its decision to refuse CYY a clearance should be affirmed.

65. The respondent raised the issue of compliance with the Working With Children Check regulations. That is, CYY had been first referred to the respondent for reasons that some employees in his tutoring business had not obtained their clearances. In these proceedings CYY filed a table of current employees who had obtained clearances. From the documentation, some employees had obtained clearances from the respondent for child related work and others for voluntary work only. Those employees who did not have clearances had either resigned or were no longer working in the business.

66. The Tribunal reiterates the importance for CYY to be aware of the legislation and regulations for all employees working with children to obtain the appropriate clearances to work in child related employment and for all employees to have appropriate child protection training so they are aware of the vulnerability of children and having protective strategies whilst caring or working with them.

Consideration

67. As stated, the Tribunal finds that on the balance of probabilities, CYY did not commit the ‘trigger offence’ and assault his child in 2012. However, the Tribunal does not find the allegations were groundless. The presiding Magistrate in the criminal proceedings, found a prima facie case against CYY before the charge was dismissed. There was also medical evidence that the 3 year old child victim may have sustained an injury being a bruise to her face, at the time CYY was alleged to have assaulted her.

68. The Tribunal refers to the recent case of Children’s Guardian v CKF [2017] NSWSC 893 which reviewed the Tribunal’s approach in assessing risk and when the Tribunal has a ‘lingering doubt or suspicion’ against an applicant. See M v M [1988] HCA 68; (1988) 166 CLR 69, BKE v Office of Children’s Guardian [2015] NSWSC 523 and Office of Children’s Guardian v CFW [2016] NSWSC 1406.

Davies J said at [56]:

‘With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or “a lingering doubt or suspicion” counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children.’

69. Therefore, any suspicion the Tribunal may hold against CYY is to be weighed up against all the evidence in assessing whether CYY poses a risk to the safety of children.

70. In weighing up any degree of suspicion against CYY that he poses a risk, the Tribunal has considered the following matters:

1. All allegations of family violence and abuse against CYY are made by either CYY’s ex-wife, AA or his step-daughter, AB, or are allegations made by unidentified persons that are untested and unsubstantiated. The allegations involve victims that are all family members and are made in the context of an ongoing acrimonious family law dispute,

2. Neither AA nor AB gave evidence in these proceedings but in the 2012 criminal proceeding, both AA and AB gave evidence and were cross-examined. In those proceedings, the Magistrate made a finding that both AA and AB were not witnesses of truth. AA also gave evidence in contravention proceedings in February 2017 before the Federal Circuit Court. The Judge in that case did not accept AA’s evidence and upheld the contravention application against her.

3. In the 2012 criminal proceedings, the Magistrate made an unequivocal finding that CYY did not assault his daughter and found the medical evidence attesting to the child victim’s injuries was ‘wholly unsatisfactory’. This was after two medical practitioners gave evidence on behalf of the police.

4. CYY worked as a serving police officer from September 2003 to March 2013 and worked as a high school tutor since 2012 until recently and has not been subject to any complaints, reports or allegations of violence or inappropriate conduct other than the family matters referred to.

71. Based on the cumulative effect of these matters the Tribunal cannot be satisfied that CYY poses a real and appreciable risk to the safety of children.

72. The Tribunal must now consider the tests outlined in s.30(1A) of the Act. The Tribunal must first determine whether a reasonable person would allow his or her child to have direct contact with the CYY in circumstances where he would not be directly supervised by another person while engaging in child related work.

73. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

74. The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations.

75. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

71. CYY has worked in his own business since 2012, tutoring students aged 15 to 18 years in mathematics and physics. He has filed documentation from university and TAFE courses outlining his academic qualifications. He has also filed numerous testimonials from parents and students attesting to his skills as a tutor to high school students. In the circumstances the Tribunal is satisfied that it is in the public interest to grant CYY a Working With Children Check clearance. It therefore follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children’s Guardian.

Orders

77. The orders are as follows:

1. The decision of the Children’s Guardian dated 21 February 2017 to refuse to grant the applicant a Working With Children Check clearance is set aside.

2. In substitution for that decision, the following decision is made; the applicant is granted a Working With Children Check clearance.

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

Registrar

Decision last updated: 29 August 2017