DCG v Children's Guardian

[2018] NSWCATAD 5

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DCG v Children's Guardian [2018] NSWCATAD 5
Hearing dates:	23 August 2017
Date of orders:	05 January 2018
Decision date:	05 January 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member E Hayes, General Member
Decision:	1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 11 May 2017 is refused and dismissed. 2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
Catchwords:	ADMINISTRATIVE LAW-Working with Children Check Clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- where disqualifying offences under section 61O of the Crimes Act 1900 (NSW) were two counts of aggravated act of indecency with a person under 16 years and one count of inciting a person under 16 years to commit an act of indecency – assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children - where onus of proof not discharged by applicant- where enabling order refused.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWSC 1602 BKV v Children’s Guardian [2015] NSWCATAD 65 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children’s Guardian [2013] NSWADT 310 Carr v Simnovic (1980) 26 SASR 263 Children’s Guardian v BQJ [2016] NSWSC 869 Children’s Guardian v CKF [2017] NSWSC 893 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 SS v Department of Human Services (NSW) [2010] NSWDC 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 T v H and Ors [1985] NSWSC, Unreported 19/12/1985 Tilley v Children’s Guardian [2017] NSWCA 174
Category:	Principal judgment
Parties:	DCG (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: J McDonald (Respondent) Applicant: In Person Unrepresented Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	201700153960
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for Decision

Introduction

1. This is an application commenced on 11 May 2017 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”). The Children’s Guardian informed the applicant, who is referred to as “DCG” in these proceedings, on 9 May 2017 that due to being convicted of disqualifying offences as specified in clause 1 (1) (e) of schedule 2 of the Act, being two counts of aggravated act of indecency with a person under 16 years and one count of inciting a person under 16 years to commit an act of indecency contrary to section 61O the Crimes Act 1900 (NSW), he was not eligible to be granted a Working with Children Check Clearance. The applicant was sentenced to a recognisance under section 558 of the Crimes Act for 3 years with a $1,000 bond for one count of an aggravated act of indecency. In relation to the other charges he was sentenced to periodic detention for 9 months.

2. An order has been made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication and disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal. The name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. A further similar order will be made as part of this decision. The disclosure of that information is likely to cause distress and further harm to the victim. Because the victim will be identified if the applicant’s name is used, due to their relationship, his identity will also be prohibited from publication and disclosure. The interests of justice are better served by the prohibition of that publication and prohibiting disclosure than by promoting the open justice principle. This weighting of the scales in favour of prohibition of publication of identifying information is recognised by the statutory prohibitions in legislation prohibiting disclosure of the identity of children who are involved in an application to the Children’s Court, and the provisions relating to criminal proceedings involving a child victim: section 105 Children and Young Persons (Care and Protection) Act 1998 (NSW); section 578A of the Crimes Act 1900 (NSW); section 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

3. The applicant was advised that he was a disqualified person on 9 May 2017 and the application for an enabling order under section 28 of the Act was filed on 11 May 2017, within the time permitted.

4. The matter was heard on 23 August 2017. The applicant was not legally represented. The applicant was asked whether he wished to make an application for an adjournment but he chose to proceed with the application on the evidence that was before the Tribunal.

5. The applicant seeks an enabling order under section 28 (1) of the Act which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The applicant wishes to work as a volunteer with a charity. The applicant says that he would be able to do more for that charity if he has a clearance. An enabling order would permit the applicant to work with children in any child-related work in a paid and voluntary capacity even though the applicant seeks the order for a limited purpose. The respondent opposes the application for an enabling order and the grant of a Working with Children Check Clearance

6. The offences with which the applicant was charged occurred between 1992 and 1993. The victim of the offences is the son of the applicant. At the time of the earliest offence the son was 13 years old. The offences are therefore particularly relevant as to risk to children. The offences will be described in more detail under the appropriate heading determined by section 30 of the Act.

7. The ultimate conclusion of the Tribunal is that the applicant should not obtain a working with children check clearance because he has not discharged the onus to prove that he is not a risk to children. The reasons for this decision are set out in more detail in the following paragraphs.

The Evidence

8. The documentary evidence provided on behalf of the applicant and the respondent, and received by the Tribunal is as follows:

1. Bundle of Documents filed by the Children’s Guardian on 6 July 2017: Exhibit 1;

2. Bundle of Documents filed by the children’s Guardian on 14 August 2017: Exhibit 2;

3. Handwritten letter provided to the Children’s Guardian on 17 August 2017 from the applicant and a transcript of that letter: Exhibit 3;

4. Handwritten letter from the applicant dated 21 August 2017: Exhibit 4;

5. Handwritten letter from the applicant dated 23 August 2017: Exhibit 5.

9. The applicant gave oral evidence and was cross-examined.

10. The Tribunal received and was assisted by oral submissions in addition to the written submissions already provided by the applicant.

11. A statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons.

Legislative provisions

12. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 do apply to this particular matter: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. The application to the Children’s Guardian was dated 26 April 2017.

13. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a Working with Children Check Clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act.

14. The safety welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act.

15. There is no relevant definition of “child abuse” contained in the Act.

16. However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children’s Guardian [2014] NSWCATAD 115 at [19]-[30], an offence of “child and young person abuse” has been included in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence is as follows:

“Child and young person abuse

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

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

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

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

is guilty of an offence.

Maximum penalty: 200 penalty units”

17. In BFX v Children’s Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows:

“The ordinary meaning of “child abuse” in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987.”

18. This working definition was arrived at after considering the ordinary dictionary meaning of the words, combined with consideration of the various statutes including the definition of abuse contained in section 4 (1) of the Family Law Act 1975 (Cth).

19. The applicant is, relevantly for the purposes of the Act, now an adult and was an adult, aged over 18 years, at the time of the offences. The offences with which the applicant was charged were aggravated act of indecency with a person under 16 years and inciting a person under 16 years to commit an act of indecency contrary to section 61O of the Crimes Act, in the circumstances referred to later in these reasons. The offences with which the applicant was charged and convicted fall within clause 1(1)(e) of Schedule 2 of the Act. Therefore, the applicant is treated as a “disqualified person”. By reason of section 18 (1)(a) of the Act the Children’s Guardian must not grant a Working with Children Check Clearance to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as “disqualified persons”, in the same section of the Act.

20. The applicant seeks a Working with Children Check Clearance to work with children because he wants to be permitted to work in charitable and voluntary work where he may come into contact with children.

21. An enabling order is therefore sought pursuant to section 28 of the Act which provides in this matter:

“28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a working with children check clearance, or

(b) the person’s clearance has been cancelled under section 23,

because the person is a disqualified person.

(4) The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

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

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

(9) (Repealed).”

22. The respondent, it is to be observed, is a necessary party to the proceedings pursuant to section 28 (4) of the Act. The Children’s Guardian is not permitted to grant an enabling order and must refuse the application because of the conviction which renders the applicant a disqualified person.

23. A person is not permitted to engage in “child-related work” unless they hold a Working with Children Check Clearance: see section 8 of the Act. There is no issue in this matter that the applicant wishes to potentially engage in child-related work which therefore requires that the applicant obtain a Working with Children Check Clearance. The applicant does not require such a clearance to perform his primary occupation.

Standard of Proof and Onus of Proof

24. It can be seen from section 28 (7) of the Act that is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. The standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J at [34].

25. Untested allegations and the manner in which the Tribunal is to approach them has recently been considered in Children’s Guardian v CKF [2017] NSWSC 893 and by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174.

Required Considerations

26. The Tribunal must consider the matters under section 30 of the Act when making a determination under section 28 of the Act. Those matters are relevantly for this application:

“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,

(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.

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Note. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

(3) (Repealed)”

27. The Children’s Guardian received information pursuant to section 31 of the Act from various government agencies, including the police and the courts. That information was tendered in evidence.

28. It must also be observed that section 28 (8) of the Act provides that an enabling order may not be made subject to conditions. This is a departure from the predecessor legislation and the case law which emanated from the repealed Child Protection (Prohibited Employment) Act 1998 (NSW): BKE v Office of the Children’s Guardian, at [4], [25], [27].

29. The applicant is also required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act.

The Issues

30. The Tribunal is to determine whether the applicant has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut presumption that he poses a risk the safety of children: section 28 (7) of the Act; BKE v Office of the Children’s Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before the Tribunal in order to assess whether the presumption has been rebutted. In other words, the Tribunal will review the evidence provided by the respondent as well as the evidence provided by the applicant in determining whether or not the applicant poses a risk to the safety of children.

31. The discussion which follows is repetitive of matters set out in other judgments of the Tribunal, but is set out again in these reasons in order to provide the parties with a considered basis for the decision which follows from a consideration of the evidence in this matter. Additionally, it is recognised that a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126; BKE v Office of the Children’s Guardian; Children’s Guardian v BQJ [2016] NSWSC 869. The law applied to this decision is therefore set out in these reasons.

32. In determining whether the applicant does pose a risk to children it is accepted that the risk must be “a real and appreciable risk”: see BYR v Children’s Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was); BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J esp at [26], [27].

33. In BKE v Office of the Children’s Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[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 Briginshaw 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).

...

[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.

34. In the matter before the Tribunal the applicant has been convicted of offences referred to in Schedule 2 of the Act. The fact that the applicant pleaded guilty to the offences enables the Tribunal to conclude that there is no reasonable doubt that the events which form the elements of the offences occurred, despite any assertions by the applicant as to the contrary.

35. However, in Children’s Guardian v CKF [2017] NSWSC 893 Justice Davies agreed that the correct approach to risk is as outlined by the High Court in M v M and the discussion referred to by Justice Beech-Jones extracted earlier in these reasons. In Office of the Children’s Guardian v CFW [2016] NSWSC 1406, Justice Harrison considered what use could be made of events where the Tribunal had a lingering doubt or suspicion remains. That would appear to be of little relevance in this particular matter. In addition, the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 considered that a number of similar allegations, in different locations, and from apparently entirely independent complainants is material upon which the Children’s Guardian and the Tribunal are entitled to act, or more practically may lend some weight to other risk factors.

36. The Tribunal is required to consider the evidence which is presented by the parties in accordance with the Act. The determination of the weight which can be given to any particular allegation or evidence, despite or because of the source from which it emanates, is ultimately a matter for the Tribunal.

Other matters

37. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: sections 38 Civil and Administrative Tribunal Act 2013 (NSW); Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

38. The restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offences which resulted in the convictions: section 38 of the Civil and Administrative Tribunal Act 2013 (NSW). The circumstances surrounding any other criminal charges or reports of behaviour which may impact upon the risk assessment are also able to be considered, if considered appropriately relevant, for the same reasons.

39. The Administrative and Equal Opportunity Division (“AEOD”) of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the Civil and Administrative Tribunal Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

40. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: 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] NSWIR Comm 101 at [130]. The applicant has already been punished for the criminal matters.

Consideration of the evidence

41. The evidence received by the Tribunal is required to be considered under each of the eleven subsections of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. Some of the subsections may be thought less relevant and may be given less weight than others. However, each of the subsections is to be considered. That evidence is now set out under each of the relevant statutory provisions as subheadings in these reasons.

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

42. The disqualifying offences occurred over a period of time between 1992 and 1993. The applicant is a disqualified person as a result of his convictions. The offences were four counts of committing, and one count of inciting to commit, an act of indecency on a person under the age of 16, in circumstances of aggravation contrary to section 61O of the Crimes Act. The applicant was sentenced to periodic detention for a period of nine months for all but one of the charges. On the other count the applicant was sentenced to a recognisance for three years with a $1000 bond. The applicant pleaded guilty to all charges.

43. The victim of the offences was the applicant’s son who was aged 13 at the time of first of the offences. The behaviour in which the applicant engaged was performing fellatio on his son, masturbating his son, and having the boy masturbate him until he ejaculated. The police recorded that the applicant readily admitted his actions. The child was removed by the Department of Community Services and placed with his aunt. The police also recorded that the applicant appeared to know that he had broken the law but was convinced that he had done nothing wrong. The applicant claimed to the police that it was more an educational exercise, rather than a moral perversion.

44. The circumstances of aggravation are clear. The victim was the applicant’s son. The victim was aged 13 and 14 at the time of the offences.

45. The victim was psychologically assessed by a psychologist in 1993 in relation to separate proceedings which occurred in the Children’s Court. It was the opinion of the psychologist that the victim had suffered psychological damage from being exposed to sexual abuse. It was the psychologist’s opinion that the victim had incorporated the abuse into his personality development and this may have an adverse effect upon his capacity to relate to and form relationships with others. The abuse was seductive over a period of time rather than a specific traumatic event which left the victim vulnerable to being a victim to further abuse in the future, or he may take on the characteristics of his father and in turn abuse others in a similar manner. The victim also exhibited guilt and felt complicit to the abuse which may also affect his ability to form and accept everyday friendships with other men. It was assessed that the victim was an immature and active young man who suffered subtle but significant damage from the sexual abuse to which he was exposed.

46. The applicant was interviewed by police and also by an employee of the Department of Community Services in June 1993. A copy of the transcript of that interview is contained within the exhibits before the Tribunal. During interview the applicant admitted the conduct which gave rise to the offences, conceded that he was aroused by the conduct, but maintained that his son wanted him to perform the abuse. The victim was also interviewed and a transcript of the interview is also before the Tribunal. The victim confirmed that the applicant engaged in the conduct giving rise to the offences and that he wanted it to stop.

47. The applicant was also interviewed by a probation officer in September 1993 for the purposes of a presentence report. The applicant agreed with the version of events given by the arresting officers, according to that report. The applicant also insisted that he saw nothing wrong in his actions as they were part of a sex education his son was receiving and was interested in at the time. The applicant maintained that he was not aware that his behaviour was illegal and not acceptable in society, particularly as his son was (as he saw it) agreeing or consenting to the acts of abuse. Of course, because of his age the victim was unable to provide legal consent.

48. The presentence report records the impression that the applicant is an unrealistic and naive man with limited social skills who had in the past been dependent upon his parents. The concern expressed by the writer of the presentence report was the applicant did not appear to understand the reasons for his actions being illegal and nor did he appear to appreciate the possible long-term effect of his actions upon his son.

49. The applicant also consulted and engaged a clinical psychologist who prepared a report for the purposes of the sentencing hearing. It was recorded by the psychologist that during the first four sessions that she engaged in with the applicant, as well as assessing him, she began the process of counselling. The psychologist says that at first the applicant was bewildered and unable to comprehend that he had done wrong. It is recorded that the applicant, who was raised in the Catholic faith, had not had sexual relationships with women before he was married. The applicant had a transient homosexual relationship with another boy in his teens which was reported as mutual masturbation. The applicant had no discussion of sex with his parents and had no idea of boundaries of morality and sexual identity. The applicant was not aware that his actions were stressing his son and the psychologist stated that the applicant was “very shocked and upset” when it was explained that it caused stress and that his son felt he had a guilty secret.

50. When interviewed by the police the son stated that his father, the applicant, told him not to tell anybody or he would get into trouble.

51. The psychologist identified that the applicant had very immature general concepts of relationships, especially with women. The psychologist considered that the applicant exhibited a borderline personality with schizoid features. An assessment of his intelligence indicated that he had “good average” scores and in relation to abstract reasoning and comprehension the applicant gained scores well above average.

52. The psychologist stated that the applicant was still confused after the sessions with her and she thought he was in need of ongoing counselling preferably with a male psychologist.

53. In his evidence the applicant said that he thought his son might become homosexual if he got that kind of sex education from someone else like a homosexual friend. This aspect of his evidence did not make much sense. The available implication from that evidence, although it is not the only implication, is that he does not appreciate even at this time the significant boundary violation and abuse to which he subjected his son.

54. The conduct and the offences are very serious. The failure of the applicant to appreciate the seriousness of the offences is a distinguishing and disturbing feature of this matter.

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

55. The offences occurred during a period of approximately a year between 1992 and 1993. That is 24 to 25 years in the past. The conduct of the applicant since that time has not been incident free.

56. The lapse of time between the offences and the current application might be thought to be evidence of a minimal risk of recurrence of the offending conduct. However, the applicant has been involved in numerous incidents of domestic violence. The applicant was also found guilty of common assault although no conviction was recorded pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

55. The applicant has resided at and enjoyed the services of numerous brothels. The evidence before the Tribunal from the applicant is that he has lived for the last 8 to 10 years at brothels. The impression gained from his evidence is that he performs handyman and building works for the brothels who provide him with some accommodation.

56. The applicant showed the Tribunal members some photographs to show that he had a social life and was not isolated.

57. The applicant has not undertaken any further counselling since the time of the reconnaissance period. The applicant has considered some of his time spent with one practitioner as “time wasting”.

58. In the afternoon of an April day in 1998 the police records document that applicant was engaged in a verbal argument with his then wife. It is reported that they exchanged words over the removal of rubbish at the rear of their premises. It is said that the wife was unsure whether she wishes to end the relationship but was sick of fighting. The applicant agreed that he would be better off staying at his mother’s place on the Central Coast until things were sorted out. The police record notes that no additional action was required in relation to the incident. However, it is also recorded that there was an interim domestic violence order obtained from the Local Court later in April 1998 and a final apprehended violence order was obtained from the same court in July 1998. The applicant was the defendant. The determination of those matters which resulted in orders is based on the assessment by the court of the balance of probabilities.

59. Police records also indicate that there was an apprehended violence order made in April 2002 where the applicant was the defendant. There are no further details provided concerning this matter.

60. In October 2003 the police documents record that applicant agreed to assist his previous girlfriend, who he had been dating periodically for approximately one year, to move house. The applicant slept at the premises overnight and there was an argument very early in the morning. It was reported that the victim asked for some painkillers which the applicant refused to buy. The victim left the premises and telephoned the police from a public telephone. The applicant went to the police station to speak with the police. The police attended the victim’s residence and concluded that she did not appear to be rational and would not properly answer the police questions. The police record that the victim “rambled on” making it difficult for the police to understand. While talking with the police it is recorded that the victim began to recall other incidents with the applicant that were previously brought to police attention. It does not appear that any further action was taken as a result of this investigation.

61. In December 2003 it is recorded in the police documents that there was another domestic dispute which appears to have involved the same ex-girlfriend of the applicant. It is recorded that the girlfriend lived in a refuge the address of which she did not disclose to the police. The girlfriend told the police that she did not want anything to do with the applicant and had not contacted him. The applicant proved to the police that she had contacted him and there were a number of conversations between them. The applicant was assisting the ex-girlfriend to fix her car. The applicant also provided her some money. The victim attended the police station and was very erratic. It is recorded that she “rambled on” and did not wish for police action to be taken.

62. In March 2008 it would appear that the applicant married a Chinese national. His wife had been working as a prostitute at one of the brothels that the applicant visited. Since their marriage the applicant was supporting her to become an Australian citizen.

63. In the early morning of March 2009 the police were reported to have attended the home of the applicant and his wife in relation to a domestic dispute. The police found the wife difficult to understand because her English was limited. The wife stated that the couple had returned home after dinner to celebrate their anniversary and the applicant had asked her for sex. The wife said that she agreed provided that the applicant showered first. The applicant showered and returned to the bedroom and asked the wife to perform fellatio and she agreed, provided he wore a condom. The wife and the applicant had a verbal argument about this and the applicant stated that he was visiting a divorce lawyer to end the relationship. The wife said: “If you want to ruin my life you should just kill me.” This comment was understood to have been made in relation to the complication a divorce would pose for the continuation of the residency application. The wife then said that she went to the kitchen to get a knife as a “soft threat” at which time the applicant grabbed her around the throat and attempted to strangle her saying words to the effect of: “Okay, you want to die, I will kill you first.” The applicant was cautioned, arrested by the police and taken to the police station.

64. The applicant participated in a recorded interview with police. The applicant said that after they returned home from dinner, the victim requested that the applicant use a dildo with her. The applicant said that he didn’t agree with this and his wife offered him fellatio, with the provision that he wore a condom. The applicant stated that he believed this was ridiculous and made mention that the marriage was to end and he was to visit a solicitor. The applicant stated that the wife became angry and was saying things such as: “Why don’t you just kill me?” and other comments (presumably to the same effect). The applicant stated that the wife then went to the kitchen and obtained what was described as a meat cleaver or a large knife. The wife approached him with the weapon and he attempted to push her away by grabbing her neck. The wife made further attempts to attack him with the knife and the applicant suffered a small scratch on his chin which he believed may have been from the meat cleaver or the wife’s fingernails. The wife then grabbed him by the genitals and used force to cause him pain. The applicant stated that his wife had said she was taught how to do that at the brothel, to look after herself. The applicant was stunned and grabbed her around the throat in an attempt to get her away from him. The applicant then said that the wife pushed the dining room table over causing it to fall to the ground. There were further verbal arguments until the police arrived. The police believed the applicant’s version of events as being more truthful than the version given by the wife. Neither the applicant nor his wife told the police they had fears for their safety and they said they did not wish any further action to be taken. The wife stated to the police that she would be moving in with her son in the morning and the applicant was going to be taking steps to proceed with the divorce. Neither party was charged and the applicant was released from custody.

65. In the evening of March 2011, it is recorded in the court documents that the applicant and his wife engaged in a verbal argument about the housework. The argument shortly escalated with both parties yelling and screaming loudly at each other. The applicant pushed his wife out onto the driveway of the house and the argument continued. The applicant pushed his wife with both hands forcing her towards the ground. The wife struggled to stay upright turned around, and tried to push the applicant away. As she did this the applicant punched her once with a closed left fist to her head causing pain. The applicant pushed her again forcing her onto the concrete of the driveway. She landed on the concrete which left the red marks on the palms of her hands and wrists. The wife yelled out: “Help me, help me, is trying to kill me.” A neighbour came to her assistance by jumping over the rear fence and confronted the applicant. The wife was crying uncontrollably on the ground and the neighbour helped her get up. When the police arrived they observed the neighbour consoling the wife with the applicant standing about 5 metres away. The police placed the applicant under arrest and took him back to the police station for a statement. The applicant participated in a recorded interview where he made admissions saying: “It was just like a reflex punch, I shouldn’t have done it… I pushed her just a bit and she must’ve fallen on the concrete side wall.” It is recorded that the wife requested an ambulance in which she was conveyed to hospital for observation and released. The wife told police that she was suffering from breast cancer and had recently had operations and chemotherapy. The wife is 13 years younger than the applicant. The applicant was charged with domestic violence related assault under section 61 of the Crimes Act. The applicant was not convicted.

66. A final order was made for apprehended domestic violence in November 2011 with the applicant as the defendant and his former wife as the protected person. The order was expressed to be in force for a period of 12 months.

67. The applicant appears to refer to this incident in his badly handwritten document, contained in Exhibit 1 at document 11, which the Children’s Guardian transcribed and provided as an aide memoire. It would appear that the applicant is saying that his ill wife did not qualify for Medicare or was not allowed to be on his health fund so he sold his house at an undervalue to pay for the medical costs and for other expenses related to that wife. The applicant complained that he was unfairly arrested when he was the victim of her violence. The applicant stated that the police did not take statements from neighbours who were friendly with him.

68. In July 2012 the applicant attended the branch of a bank. The applicant had received a call from the bank informing him that his application for a loan had been declined due to his bad credit history. The applicant attended with his wife. When it was explained to the applicant by a staff member of the reason for the disapproval the applicant started yelling and abusing the staff member and later was shaking, crying and rolling back and forth on a chair. The staff member gave the applicant a tissue which he started to eat. The wife advised the staff member that the applicant was very stressed due to his finances and had mentioned several times to her that he will get a gun and kill all of the staff at the bank. She also said that he told her a number of times that he will kill a specific staff member. The applicant was advised to go home and provide the bank with more income documentation so that the bank could reassess his application. The applicant left the bank after about an hour. The reporting person requested the police to make a record of the incident but not to contact the applicant as his application was under review. It was said in the police documents that the bank staff member did not have any fear for her or her staff’s safety at that stage.

69. The applicant discloses in his statement to the Children’s Guardian contained in Exhibit 1 at document 11 that he then resided in a massage parlour while his wife had access to the funds from the sale of the house and there was an AVO preventing him from doing anything about it. Then the applicant states that he gambled at the casino with her after picking her up from the refuge in inner-city Sydney. The applicant says they spent two nights per week together gambling. This would have most likely been in breach of an AVO. The applicant then says that he was living at a massage parlour, then a brothel in Sydney, then a brothel on the Central Coast. Whilst living in those places he performed renovation work in return for free rent. The applicant characterises himself as a victim of a series of frauds, corrupt police, a corrupt real estate agent, and mercenary ex-wife. The applicant also denies that he did any wrongdoing to warrant the conviction for the disqualifying offences. This document was written (approximately one month) before the applicant was aware of all material the Children’s Guardian provided to the Tribunal.

70. The applicant said that he had previously worked as a handyman performing gardening and labouring work after a number of failed attempts to pursue a trade.

71. There are records which have been obtained from the police and the Local Court which show that the applicant was found guilty of common assault arising from an incident which occurred in August 2014. After an appeal to the District Court the charge was dismissed pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). This dismissal occurred in February 2016.

72. The applicant describes the events giving rise to this charge in his hand written document which states:

“Last year I went to court it took, I think about two years to settle the matter. It went on for I think nine episodes common assault charges were attempted on me by an old corrupt man that bought my house and attacked me and broke my finger, the police acted corruptly in the matter as did one of the female judges.”

75. The applicant performed some volunteer work. In early 2017 the applicant offered one of the supported female employees a lift home in his vehicle. As a result of this his role was terminated.

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

76. The applicant was aged between 38 and 39 years at the time of the disqualifying offences.

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

77. The victim of the disqualifying offence was aged between 13 and 14 years.

78. The victim is the applicant’s son. The applicant as shown in his evidence to this Tribunal does not appreciate even at this time the significant boundary violation and abuse to which he subjected his son.

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

79. The difference in age between the victim and the applicant is 25 years. The relationship between the victim and the applicant is that the applicant is the victim’s father. This gave rise to the circumstances of aggravation. It is a significantly gross violation of the relationship between a father and son which offends not only morality and the provisions of the Crimes Act, but is a debased and venal exploitation of the emerging sexuality and identity of a vulnerable and dependent person. The consequences of the applicant’s actions are likely to be a lifelong issue for the son to cope with and for him to attempt to not let it overwhelm what should be, without that unfortunate intervention, a healthy psychological and emotional adjustment.

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

80. The applicant knew that the victim was his son and a child requiring his protection. Instead of nurturing that relationship in a healthy and positive way, the applicant has caused psychological and emotional harm to his son.

The person’s present age

81. The applicant is currently aged 63 years.

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

82. The applicant was convicted of the disqualifying offences which are considered to be very serious.

83. The applicant has twice been charged with common assault and been the defendant in relation to several domestic violence orders.

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

84. The applicant did not file any evidence from an appropriately qualified psychologist or psychiatrist to support his application. In fact, there was very little helpful evidence filed by the applicant to support the contention that he is no longer a risk to the safety of children.

85. The applicant has not relied upon any written character references.

86. The applicant worked in a voluntary capacity and engaged in behaviour such as leaving his designated area to have lunch with supported employees who were always supervised. The applicant was terminated from his voluntary work because he offered a lift home to one of the supported employees in his vehicle. The employee accepted his offer. The applicant was told that this was not appropriate. The supported employee was spoken to and she advised that everything was fine. Presumably that means that the employee did not suffer any abuse at the hands of the applicant.

87. The applicant has an idiosyncratic view of women which is detailed in the evidence before the Tribunal and to which reference will be made specifically under a different heading. The applicant has been involved in disputes which have been with his intimate partners. It is not clear to the Tribunal whether any children were exposed to this behaviour. If a child is exposed to this behaviour it is well-known that there is a deleterious effect upon the child’s development. This attitude and view of women which is held by the applicant may precipitate the type of behaviour about which there are reports and is appropriately considered to be a risk factor.

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

88. The applicant has provided handwritten documents and was cross-examined. The content of parts of those documents is discussed elsewhere in these reasons.

Any other matters that the Children’s Guardian considers necessary

89. The Children’s Guardian made submissions addressing matters the Children’s Guardian considers necessary.

90. The Children’s Guardian submits that the applicant should not be granted an enabling order.

91. The Children’s Guardian submits that the applicant’s response to a request for information from him when he was informed that it may well be used as evidence in the proceedings argues against the grant of an enabling order. The written response of the applicant is verbose and illustrative of the applicant’s thought processes. The applicant uses intemperate language. While that may be his usual manner of communication it does not reflect well upon him in a formal environment. The Children’s Guardian submitted that the language used indicates a lack of respect for law enforcement and the legal process, as well as an emotional volatility which are risk factors and have the very real and probable potential to emotionally harm any child exposed to those beliefs and emotions.

92. The Children’s Guardian submits that the applicant has disclosed in his correspondence sufficient information to satisfy the Tribunal that he has not discharged the onus of rebutting the presumption that he poses a real and appreciable risk to the safety of children. The Tribunal considers that this submission has potent force. The Children’s Guardian identifies which aspects of the correspondence support the submission. It is not necessary to consider in these reasons all of those matters. Reference will now be made to some of those matters.

1. The applicant in his handwritten documents cast himself as the victim of scheming women, corrupt police, and other abusive people. The applicant seems to make a virtue of the fact that his current girlfriend and many of his previous girlfriends have been sex workers. The comments made by the psychologist at the time of his sentence have been borne out by the passage of time and the events referred to by the applicant in his own material.

2. The psychologist identified that the applicant had very immature general concepts of relationships, especially with women. The psychologist considered that the applicant exhibited a borderline personality with schizoid features. The Tribunal is not qualified as a psychologist and there was no up-to-date psychological evidence provided to the Tribunal. However, it would appear that that assessment correctly characterises the way in which the applicant currently sees and describes the world around him. There is no contrary evidence.

1. More importantly, it is plain that the applicant is still confused and in need of ongoing counselling preferably with a male psychologist, as previously recommended by the psychologist.

2. The applicant in his material claimed that his former wife colluded in some way for the allegations to have been made about his son. The inferred purpose for that collusion was to ensure that the son lived with her. The result of the Children’s Court proceedings appear to be that the son was placed under a care order and lived with his maternal aunt and her husband. The applicant was supposed to see his son under strict supervision. The applicant said there was no real supervision when he visited his son.

3. The applicant in his documents also identifies that he has on occasion apparently breached the apprehended violence orders which were in place.

4. The applicant identifies that he has been involved in a number of “punch-ups with bad people”. The applicant appears to be satisfied that he was capable of being able to punch a co-worker, knock him out, and put him in a coma for three days. The applicant has a violent capacity.

5. The applicant has stated in his own material that he has lived in a number of brothels and massage parlours, had sex with the women at the brothels and thought of some of them as his girlfriends. This is apparently a convenient arrangement for the applicant and he sees no reason to be reticent about disclosing these facts. This is a similar rationalizing of the disqualifying offences with his son: an amoral and opportunistic, debased and venal exploitation of others for his own convenience.

Consideration and determination

93. The applicant has been convicted of offences which render him a disqualified person for the purposes of the Act. The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms.

94. The behaviour, if repeated, would do significant harm to any victims. The paramount principle under the Act includes protection of children from suffering abuse.

95. The significant issue for the applicant is that he now says that he shouldn’t have done what he did but showed no remorse because he believed that his son wanted him to behave the way in which he did and the applicant didn’t realise that there was someone who would object to that behaviour.

96. The applicant poses a real and appreciable risk to children. The disqualifying offences were clearly directed towards a child, who is the son of the applicant.

97. Remorse on its own is not considered to be a factor that mitigates risk. In this matter there is no remorse expressed by the applicant. In fact, the applicant says in writing to the Tribunal: “[a]t least I did not have the pain of remorse they say people have when they do something wrong. If I ever did I still don’t know it.”

98. The history of the applicant and the attitudes which he has displayed since his convictions are evidence that the applicant has not made any significant changes to mitigate the risk that he poses to children.

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

100. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.

101. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed to children.

102. The applicant has not discharged the onus to prove that he does not pose a risk to the safety of children. The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children.

103. It is unnecessary to consider in the circumstances whether it would be in the public interest to make an order. There is limited material provided to the Tribunal which would allow a finding that it would be in the public interest to grant an enabling order to the applicant.

104. Additionally, a person who knew the complete circumstances of the applicant’s history would not allow his or her child to have direct contact with the applicant unless it was directly supervised by another person, if the applicant was engaged in any child-related work. The fact that the applicant was terminated from his voluntary employment for driving home a vulnerable, supported female employee he met during the course of that volunteering would seem sufficient evidence that a reasonable person would not consider the applicant to be a safe person to be alone with vulnerable people.

Conclusion

105. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act and having regard to the material before the Tribunal it is concluded that the applicant poses a risk to the safety of children and should not receive a Working with Children Check Clearance. It is presumed unless proven to the contrary that the applicant is such a risk. The evidence has not discharged the onus to prove that the applicant is not such a risk.

106. It is not in the public interest to grant an enabling order even if the applicant had discharged the onus.

Order

107. The order of the Tribunal is that:

1. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 11 May 2017 is refused and dismissed.

2. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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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: 05 January 2018