DCV v Children's Guardian

[2018] NSWCATAD 21

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DCV v Children’s Guardian [2018] NSWCATAD 21
Hearing dates:	8 September 2017, Submissions closed 16 October 2017
Date of orders:	24 January 2018
Decision date:	24 January 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member Dr B Field, General Member
Decision:	(1) The decision of the respondent dated 2 May 2017 to refuse the applicant’s Working with Children Check Clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – Working with children – Pattern of incidents – Risk assessment adverse – Likelihood of reoccurrence
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998 (Repealed) Civil and Administrative Tribunal Act 2013
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 CGP v Children’s Guardian [2017] NSWCATAD 12 BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 Children’s Guardian v CKF [2017] NSWSC 893 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 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.
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DCV (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Douglas-Baker (Respondent)   Solicitors: Rams Family Lawyers (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00168250
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR decision

Introduction

1. On 2 June 2017 the applicant applied for administrative review in the Tribunal of a decision of the respondent to refuse the applicant’s working with children check clearance. That decision was made on 2 May 2017.

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

3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is currently a real and appreciable risk to the safety and well-being of children and young persons. We note that the jurisdiction is protective. As a result of the finding the decision of the respondent must be affirmed.

4. On 6 July 2017 an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. Additional orders were made on 21 July 2017 restricting access to and disclosure of certain documents erroneously filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (the ADR Act). Those matters do not concern the decision subject of these reasons.

5. The jurisdiction of the Tribunal under Part 4 of the Child Protection (Working with Children) Act 2012 (the Act) is protective and not punitive in nature, as set out by the Court when considering s 28 of that Act: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

4 Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

6. These proceedings arise because on 2 May 2017, following a risk assessment the Children's Guardian made a decision to refuse DCV’s Working with Children Check Clearance (the Clearance). The applicant stated in his application that he was notified of the decision on 8 May 2017 and on that basis his application for administrative review has been received within time.

Background

7. In January 2016, the applicant applied for the Clearance. The applicant required the Clearance for his employment in the area of not for profit child education and charitable activities as well as teaching. As the application was made after November 2015, the provisions of s 30(1A) of the Act apply to these proceedings.

8. The applicant was subject to an assessment requirement as referred to in s 14 of the Act. This entails the existence of a ‘trigger offence’ creating an assessment requirement as described in the Act. The ‘trigger’ offences are commensurate with offences listed in Sch 1 of the Act, requiring the respondent to conduct a risk assessment of the applicant pursuant to s 15 of the Act.

9. Section 15 relevantly provides:

15 Assessment of applicants and holders

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

10. During the period January 2016 to November 2016 the respondent conducted their risk assessment of the applicant. On 11 November 2016, the respondent notified the applicant of its proposal to refuse his application by way of a Notice of Proposed Refusal of Application.

11. The respondent then concluded the assessment and on 2 May 2017 issued a Notice of final decision refusing Working with Children Check Clearance under s 20 of the Act.

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

15 Assessment of applicants and holders

…..

…..

…..

(4) In making an assessment, the Children’s Guardian may consider the following:

(a) the seriousness of any matters that caused the assessment in relation to the person,

(b) the period of time since those matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim,

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

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

(g) the person’s present age,

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

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

(j) any information given in, or in relation to, the application,

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

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

13. The respondent found that the applicant’s record that triggered the risk assessment was of a serious nature being a workplace finding that there was a serious assault of a male child by the applicant while he was employed as a teacher in the NSW Department of Education (DEC) in 2007. At the time of that incident that applicant was under investigation for a similar incident in 2006 whereby an allegation that a male Year 8 student hand had been caught in a doorframe and that the applicant’s actions (as teacher) were found by his employer to be intentional. Three out of four allegations in 2006 of a similar nature were sustained.

14. There were also a number of matters involving allegations of inappropriate contact with female Year 8 students and ongoing allegations in 2012 and 2013 concerning inappropriate physical contact with male students. Whilst other allegations were not sustained, the NSW Ombudsman supported the findings by the applicant’s employer (DEC).

The application for administrative review

15. The grounds of the substantive application are:

1.   The findings are not supported by probative evidence, rather the findings are based on assumptions, inference and inadequate evidence.

2.   The decision maker failed to establish requisite standards of proof to find misconduct on part of applicant.

3.   The decision is unreasonable.

4.   The decision maker did not accord proper procedural fairness to the applicant.

16. More detailed grounds were provided in written material submitted by the applicant.

17. The issue to be decided by the Tribunal is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting or refusal of a clearance in relation to the applicant: see s 63 of the ADR Act.

The working with children legislative scheme

18. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

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

20. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

21. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1)(b) of the Act). A child related role is set out in s 6(3) of the Act.

22. Section 14 of the Act provides that a person is subject to an assessment requirement under the Act if any of the matters specified in Sch 1 apply to the person.

23. Section 15(1) of the Act provides that the Children's Guardian must conduct a risk assessment of an applicant for a clearance to determine whether the applicant poses a risk to the safety of children.

24. Section 18(2) provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.

25. Part 4 of the Act deals with reviews and appeals. Section 27 provides for the administrative review by the Tribunal of decisions of the Children's Guardian including a decision of the respondent to refuse a clearance: s 27 (1). That section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) ………...

(3) ………...

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

(5), (6) (Repealed)

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

26. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Section 30(1) of the Act provides:

30 Determination of applications and other matters

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

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

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

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

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

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

(g) the person's present age,

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

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

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

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

Burden of Proof

27. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

28. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

29. An application pursuant to 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.

30. In addition, in this case there is no presumption that the applicant poses a risk to children, as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s 28 of the Act.

31. In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk.

32. As stated above, the Tribunal is required to have regard to the matters contained in s 30(1) of the Act in deciding this issue. (See par 26 above). Section 15(4) sets out the criteria, which the Children's Guardian may consider. The Tribunal in its administrative review considers similar criteria in that s 15(4) and s 30(1) are drafted in similar but not identical terms. An important distinction is the word "may" in s 15(4) and "must" in s 30(1).

33. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42], His Honour said:

'42    One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'

34. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

35. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].

The Issue to be decided

36. The primary issue is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a clearance in relation to the applicant: s 63 ADR Act

The Hearing

37. The matter was heard on 8 September 2017. The applicant was represented by Solicitors and the respondent was represented at hearing by Counsel and instructing Solicitors. At the conclusion of the hearing, the Tribunal made orders regarding further written submissions arising from the evidence tendered at hearing and submissions in reply. As at 16 October 2017 the Tribunal reserved its decision.

38. The applicant gave evidence at the hearing and his expert also gave evidence. No other witness was called at the hearing. Both parties also relied upon extensive written material.

Written Evidence

Applicant’s written material

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

1. Exhibit ‘A 1’: the application for administrative review dated 2 June 2017;

2. Exhibit ‘A 2’: an Affidavit of the applicant (15 August 2017);

3. Exhibit ‘A 3’: a Character / Professional Reference from ‘M.J.’ (17 March 2016);

4. Exhibit ‘A 4’: a Character / Professional reference from ‘U.N.’ dated 10 January 2017;

5. Exhibit ‘A 5’: a Character / Professional Reference from ‘P.LT.’ (18 January 2017);

6. Exhibit ‘A 6’: a Character / Professional Reference from ‘P.S.’ (16 January 2017);

7. Exhibit ‘A 7’: a Character / Professional Reference from ‘M.P.’ (20 January 2017);

8. Exhibit ‘A 8’: a Statement of Service Character / Professional Reference from ‘J.S.’ (23 May 2003);

9. Exhibit ‘A 9’: a Character / Professional Reference from ‘R.K.’ (13 January 2017;

10. Exhibit ‘A 10’: a letter concerning satisfactory finalisation of remedial process from ‘J.C.’ (2 June 2009);

11. Exhibit ‘A 11’: copy of submissions on penalty Departmental / Employment findings authored by applicant’s then lawyers (13 November 2015);

12. Exhibit ‘A 12’ copies of certificates of merit / achievement during applicant’s career – 6 folios;

13. Exhibit ‘A 13’ copies of certificates of achievement / qualifications during applicant’s career – 11 folios (after one withdrawn);

14. Exhibit ‘A 14’ Psychological report of H A Nguyen Forensic and Clinical Psychologist dated: 13 August 2017;

15. Exhibit ‘A 15’ copies of correspondence from H.A. Nguyen dated 7 September 2017;

16. Exhibit ‘A 16’ statutory declaration declared 24 January 2017 of the applicant.

Respondent’s written material

40. The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings.

1. Exhibit ‘R-1’: being the s 58 documents filed 19 July 2017;

2. Exhibit ‘R-2’: being documents obtained under s 31 of the Act filed 28

3. August 2017;

41. Whilst the respondent did not call any witnesses, substantial cross-examination of the applicant and his expert occurred at hearing.

Submissions

42. The applicant and respondent filed detailed written submissions prior to the hearing and both parties filed submissions after the hearing. The respondent also made oral submissions at the conclusion of the evidence.

Applicant’s Evidence at Hearing

43. In evidence in chief, the applicant adopted his statements (Exhibits ‘A-1’ and ‘A-6’) as true and correct. He gave an outline of his teaching career and started teaching overseas and came to Australia in the late 1980’s. He had been an HSC marker for 16 years in the areas of Tech Design / Industrial Arts. He has begun marking HSC papers again this year. The applicant then went on to address the various matters and allegations raised in the respondent’s written material.

44. The applicant denies the serious 2003 incident allegations and stated that he had no recollection of such a matter. Those allegations concerned complaints by six Year 8 students that the applicant touched them (females) on their necklaces, school ties, touched one students bottom, lifted a skirt up with his foot, grabbed her shorts, brushed sawdust off her thigh, wiped the palm of his had across a female student’s stomach and similar matters. In respect of male students the complaints were that he had grabbed one about the upper arm and squeezed tightly, grabbed an ear and twisted it and similar descriptions.

45. In respect of the 2005 allegation concerning hitting a student over the head, the applicant denied this allegation and stated ‘this never happened’. In respect of the 2006 ‘student hand slammed in door jam’ incident, the applicant gave evidence that to his recollection the student was misbehaving and the applicant told him to go to the head teacher. His evidence was that the student would not leave the classroom so the applicant ‘took him out’ (of the room) physically and grabbed him by his shoulder and told him to wait at the head teacher’s office. The door was closing and as that happened the student’s hand went inside the door.

46. The applicant stated that the student was being ‘a danger to the other students’. He had to stop the demonstration he was giving a group of students and address that student’s behaviour. He recalled that the student bruised his hand but was not sure how.

47. In respect of the March 2006 allegations one concerned a student standing within the yellow marked ‘danger zone’ near a sanding machine and the applicant had to pull him away by his shirt, and then pushed him away threateningly. The second allegation concerned pulling a student by the collar, causing the student’s shoulder to hit a doorframe. Another allegation about a student being pulled away from a sanding machine was made as well as an allegation that a Year 9 student was pulled away from a door by the applicant grabbing his school bag.

48. The applicant stated that in each matter student safety in the works area (with dangerous machines) was the primary issue and students had defied instructions and tried to get on the machines. The applicant was close and pulled them back. (2006 allegations)

49. Another allegation concerning a student and a broom handle was referred to in evidence in chief. The applicant stated that the student failed to follow his instructions and when the student grabbed the broom again the applicant tried to take him out of the room, as he would ‘poke’ other students with the handle. The applicant stated that he needed to protect students and as a result needed to restrain the student and take him out of the room. (2007 allegations)

50. The applicant gave evidence concerning the allegations of touching a Year 9 female student’s thigh and requested her mobile phone number. The applicant’s version was that the student’s parents had failed to attend with her brother at the parent teacher night so the next day when he was explaining subject choices for the Year (which he had intended to covey the night before), to the male student, he ran out of time as the bell went. He asked and obtained the older female siblings number (he got the brother to write it on a piece of paper) so that he could contact the parents about subject choices for the son. (2013 allegation)

51. The applicant also gave evidence concerning the allegations that he obtained a Year 11/12 female students home address details when such details were not ordinarily available to him, had accessed her personal profile and sent a ‘friend request’ to her on social media. The applicant stated that this student was in his ‘roll-call’ class and was always late and often absent. The applicant stated that he believed it was his duty as a teacher in a Government School to look after the welfare of his students 24 hours a day 7 days a week.

52. The applicant gave some vague ‘technical’ evidence about his clumsy or rudimentary use of the social media site and had ‘clicked’ to find out ‘what was wrong’. His evidence was that he had not intended to send her a message. These matters are recorded as occurring during 2013 and 2014.

53. The applicant gave evidence about further allegations that occurred at another school in 2016. These allegations concerned the unsolicited approach to a Year 9 female student alone in the Canteen and suggested that they ‘go and get a coffee’. The applicant denied any knowledge of this allegation. On clarification from the Tribunal the applicant denied the actual allegation, however the applicant stated that he did have coffee with students but only within groups.

54. The applicant referred to his reasons for leaving his last teaching position in late 2016. The applicant stated that as far as he knew his contract was only terminated due to the maternity leave occupant (whose position he was covering) exercised their right of return.

55. The applicant addressed the criminal allegations in his history, predominantly domestic violence related matters in 1991 involving his spouse. His evidence was that he did not know his wife well at the time, having been subject to an ‘arranged marriage’. When their baby was born things became more difficult. The applicant denied hitting his wife and stated that he only pleaded guilty ‘because the baby was very young and he didn’t have a solicitor representing him’. He stated that he tried to work things out concerning their differences and is still going well. He has a daughter as well.

56. There were subsequent incidents and charges in 1999 when (after divorce) the applicant had moved back to his ex-wife. After an incident the applicant was charged with assault and plead guilty.

57. The applicant also referred to the report of an incident when he and his wife were driving and he was the passenger. He denied hitting the wife, but said that he had to take control of the car because his wife was driving in the wrong lane. This resulted in a criminal charge which was dismissed due to lack of evidence.

58. Another incident concerned when the applicant was a shopkeeper and had employed a teenage girl in the takeaway food store. Teenage boys also worked at the store. The applicant’s version was that he caught the female stealing money from the store so he fired her and contacted her mother. His evidence was that the teenager went to the police and made up the allegations about the applicant slapping her on the bottom and asking her out (on a date). The applicant stated that the police dealing with the complaint knew him as customers in his store and decided the matter for what it was, (a lie) and took no action. This version was different to the documented version involving the teenager’s uncle confronting the applicant and then the matter being reported to police.

59. The applicant made statements from the witness box near the conclusion of his evidence in chief, concerning the circumstances of many of the allegations raised during his teaching career. In respect of a 2014 allegation involving a 12 year old female the applicant observed in respect of technical studies that students design in the Design Room and build in the Workshop. The students move from the workshop to the Design Room to access their bags and in respect of the doorway between the two at various times he / they might have ‘rushed through’ and ‘brushed against’ him in the doorway. The applicant denied ever touching her (the 12 year old female). The applicant initially had denied any circumstances of ever touching a female student.

60. The applicant gave evidence about his child protection training and had updated his knowledge with further courses. The applicant stated that he:

Keeps up to date with the requirements of this country.

When asked by his solicitor ‘why would these allegations be made?’ the applicant put it down to the fact that he is an Industrial Arts teacher and the safety issues involving machines. For these reasons he needs to be a ‘strict teacher’ which some students resist.

I focus on the safety of students in the workshop. I am astrict but friendly teacher. In 2014 I achieved ‘best teacher in my school’ the best result.

61. In response to a question as to whether he had an issue / problem with anger, the applicant stated:

I don’t think that I have an anger issue. I am just wishing to do things the right way. To control 25 students, 30 students you need to have rules.

Applicant’s evidence under Cross Examination

62. In cross-examination the applicant was asked about some matters raised in his evidence in chief concerning his answer to the question about anger. He was also taken to references to anger in the psychologist report (Exhibit ‘A-14’). The applicant was asked why he answered in evidence that he did not have an anger problem. The applicant stated that he didn’t understand the issue about an anger problem, and this position was based on his total career. He conceded that his expert is more accomplished in understanding and describing these things that he is himself.

63. The applicant was asked why it took so long to book the appointments with the professional to which he advised that the psychologist was very busy and could not fit him in earlier.

64. The applicant was asked about the 1995 takeaway food store incident involving the teenage girl. The respondent pointed out to the applicant that in the police report of the incident there was no reference to stealing by the teenage employee or anyone else. The applicant stated that:

The only reason she was fired is because caught her stealing with my own eyes.

65. The police report shows that the teenage girl reported that the applicant slapped her on the bottom with an open hand and then touched her on the hands stating: ‘What about one night .. and we’ll go out to dinner’ to which the teenage girl said: ‘I don’t like you f… off’. The teenage girl then left the shop and went home and told her uncle who then attended the shop and confronted the applicant and there was a minor physical altercation. The uncle and niece then went to the police station and made a statement. The victim did not want any formal action taken as her family is friends with children of the applicant. Police contacted the applicant and he attended the police station and made a statement. The applicant told police that the teenage girl was dismissed for poor work performance, being on the telephone for non work matters, turning up the TV and music too loud and that he contacted the girl’s mother who stated that she would ‘sort (the girl) out’.

66. The applicant denied the assault of the teenage girl and proposition, but had no further explanation for the omission of the alleged real reason for dismissing her (theft).

67. In further cross-examination it was put to the applicant that he resigned from the Department of Education because he did not wish to be placed on the ‘not to be employed list’. The applicant denied this.

68. The applicant was asked whether he advised his subsequent employer (private school) that he had been forced / directed to resign. The applicant conceded that he had told them and said that:

Yes, and I told them the situation I was in – that I wouldn’t be able to continue in my career.

In addition the applicant advised Counsel that as an applicant for a position he would only usually answer or ask questions based on or arising from the interview. Nothing else would be addressed, and this informed what was an was not exchanged between him and his prospective employer.

69. In further cross-examination the applicant was taken through many of the incidents for which there were reports and workplace investigations. The 2003 allegations concerning the girls necklace, where he allegedly said ‘why are you wearing that’ was a matter for which the applicant stated he had a lack of any recollection. When asked if he had read the DEC reports the applicant stated that he had, but again had no such recollection of anything like that happening in his class.

70. Questions were put and answers given about various 2003/2004 allegations. The applicant recalled sawdust being on one of the girls thighs and ‘brushing it off’ . The applicant referred to and was questioned about one incident being precipitated by a female student ‘grabbing a whiteboard marker’ and having to ‘take it off her’. Many answers were jumbled and somewhat vague. The applicant could not recall any of the details clearly and at one stage answered:

‘I cannot recall what I did or said.’

71. There was a general inability or reluctance of the applicant to clarify his evidence and the Tribunal advised him of his duty and obligations at hearing.

72. The applicant was able to recall that there was a policy (written or unwritten) that you:

‘don’t touch the Year 12 students.’

The applicant stated that

‘Sometimes we have to touch the younger kids, to keep them away from the machines, to grab them and pull them away for safety.’ ‘Most of the Industrial Arts students do this, the Year 8 and 9 students.’

73. The applicant gave evidence that he would perform a standard safety lesson at the beginning of each year and again whenever he was about to introduce a new procedure or process to the work and the tools / machines.

74. When asked about the incident where the student’s hand was in the door the applicant said that the student was ‘defiant’ and ‘misbehaving’. He stated that when a teacher gives a student the instruction: (You must go and see the Head Teacher) then that should be the end of it. It was put to the applicant that he could or should foresee that the student would or may have re-entered the room. He applicant denied thus and said no. In our view his evidence indicates that in his view the directive was final and binding.

If in a workshop, then any misbehaving is a safety issue. A teacher gives a FIRM instruction.

75. In resect of the incident with the broom handle the applicant stated that he was demonstrating something to a group of ‘slow learners’ when the student came up behind him with the broom. In that instance he stated that he had no option other than ‘to remove the student’. Questions were asked about when he reported this serious incident, as the DEC investigation papers state that the applicant did not report the matter for 13 days. The applicant noted that he had not been at the school as he was sent on alternate duties and the report was eventually made ‘remotely’ even though it could have been easily made on the day it occurred.

76. In respect of the allegation of touching a female Year 9 student’s thigh in 2013, the applicant stated that he was the student’s subject co-ordinator and class teacher. He was asked whether the student had asked him to contact their parents and conformed that they had.

77. In respect of the social media posting / message, he reiterated his evidence in chief and added when asked that the student did not respond to any message from him. He added ‘her’ to the second account but then she deleted it.

78. As he is the student’s roll-call teacher he believed that makes him responsible for student welfare matters about those students. He was asked whether he told the Principal. The applicant did not answer this directly but said that the Principal would of already known about the incident as:

‘he already knows this as he is in the computer report every day’.

79. When asked again about why no action was reported about the social media incident the applicant stated that it had occurred during school holidays. It was for that reason that he did not take any action through the school welfare channels.

80. The applicant was asked about his recent private school placement allegations concerning having coffee. The applicant’s evidence was that teachers would take the students to have coffee as that was part of their ‘team building’.

All of the teachers who teach seniors do that. Some seniors leave at the end of term and don’t come back until graduation.

81. When question about his criminal domestic violence matters the applicant denied hitting his wife. He told his expert that his mother in law threatened to remove a child from the family (daughter). In respect of the need to do the anger courses, the applicant stated that his expert had said words to the effect of: ‘I know you are a good man, but if you do this course it will help you’.

82. There was no re-examination of the applicant. Following cross-examination the Tribunal in accordance with the provisions of s 38 (1) of the Civil and Administrative Tribunal Act 2013, the Tribunal inquired of the applicant in respect of some aspects of his evidence.

83. The applicant was asked why he had not reported any aspect of the stealing allegations concerning the teenage female employee of his shop to the police as the reasons for dismissing her. The applicant stated that he:

Forgot about this evidence.

84. The applicant was also asked about his previous diagnosis of Post Traumatic Stress Disorder (PTSD) arising from a workers compensation incident where a knife was involved. No meaningful evidence was forthcoming about this matter and the Tribunal noted that there were no available documents in respect of this.

Expert’s evidence at hearing

85. Mr H A Nguyen gave evidence on behalf of the applicant. The expert confirmed the presence of anger management issues and that their management was problematic. In the expert’s view the applicant had problems with setting and maintaining boundaries and this caused conflict predominantly with his children.

86. As a result of the assessment the applicant had last week contacted the expert’s receptionist to book appointments for future treatment session in respect of his anger.

87. In cross-examination the expert was asked whether the 21 July 2017 letter of instruction from the applicant’s Solicitors was the first that he heard from him. Ordinarily there is a two-week wait between appointment making and session. The expert was able to fit him in and there were no written documents from the applicant, not even the respondent’s Notice of Decision, just the 21 July 2017 correspondence contents.

88. The expert relied solely on the applicant’s summary and the history given by him. The applicant had referred to an incident whereby a student was playing with his collar and unintentionally there was a red mark left on the student.

89. Various assumptions were put to the expert (as assumptions) concerning ‘red marks on neck / chest’, and when those things were assumed to have occurred, would that change his assessment of the applicant. The expert advised that it would change his assessment and conclusions adverse to the applicant.

90. The Solicitor’s letter disclosed the domestic violence matters and the expert confirmed that the applicant advised him of those matters. The expert advised that he had not had a chance to talk to the applicant about the treatment program for his anger issues.

85. The expert gave evidence about the necessary detachment that he required from the applicant and this was in order to properly complete the assessment report professionally. After the assessment was complete it was then in the expert’s view, possible to engage with the patient (applicant) and develop a rapport to engage in treatment. 10 sessions were proposed under a Mental Health Care Plan with a referral from his G.P. (We note the referral letter had not been tendered). We also note the proposed tender of an e-mail chain after the evidence had closed. That e-mail was received without objection some weeks later with the applicant’s further submissions and verified the attendance and stated positive outcome of the treatment with no further detail.

Respondent’s Submissions

92. The respondent in oral submissions referred to the fact that the expert’s report is predicated on only one assault in 27 years. When in his evidence at the hearing the expert was asked to assume some of the incidents (that were not disclosed to him) then his assessment altered adverse to the applicant. It was submitted that the report was a strong report which was not advantageous or favourable to the applicant.

93. The respondent submitted that the expert did not press for counselling but rather that it seems that the applicant has embarked upon this course ‘re-actively’ to the Children’s Guardian submissions.

94. The respondent submitted that with respect to the report writer, questions are raised about the reliability of the expert’s report (albeit the string adverse conclusions that can be drawn) and his evidence primarily due to the lack of the benefit of any or most of the relevant material.

95. In respect of the allegations concerning the teenage employee at the take-away store the respondent submitted that there were three different sets of evidence and that the Tribunal would need to take great care with the applicant’s evidence. The respondent submitted that the Tribunal must be unable to accept the applicant’s evidence on a number of points having regard to the workplace findings and the applicant’s vague and often inconsistent aspects of his evidence before the Tribunal.

96. The respondent submitted in closing that there was a consistent pattern of matters which were not linked in any way by the student victims. The pattern continued across three different schools and was also present in his own business.

97. In written submissions the respondent focussed on the applicant’s lack of candour with both the expert and the Tribunal and his demonstrated anger management issues. The anger issues are not confided to the domestic sphere or interpersonal relationships but flows over to the classroom or workplaces generally. The respondent submitted that the applicant has not sufficiently ameliorated the risks that his anger poses to the safety of children and this is backed up by his own expert report.

98. The respondent submitted that given the protective policy of the legislation, the application should be refused. The the grant of a Working with Children Check Clearance would permit the applicant to undertake any child related work unsupervised, and due to the risk, and the fact that a reasonable person would not allow the applicant to have unsupervised access to their children, and that the public interest against granting the clearance outweighed any private or personal factors in favour – then the Tribunal should not grant the clearance.

Applicant’s Submissions

99. In written submissions after the hearing the applicant submitted none of the allegations have been proven or tested or substantiated to constitute a schedule 1 (2) (b) (of the Act) finding.

100. The rest of those submissions addressed the s 30 (1) and (1A) matters under the Act.

101. The applicant submitted that there is no real and appreciable risk to children based on the facts before the Tribunal, namely a risk in the sense that is greater than the risk of any adult preying on a child.

102. The applicant also submitted that if a reasonable person is equipped with all of the facts (not the allegations by some) including the applicant’s teaching record and results, professional assistance and that he has recently sought to address his anger, then that reasonable person:

‘may be inclined to allow his or her child to have direct contact with the Applicant as an Industrial teacher.’

103. In addition the applicant submitted that due to his:

‘superior teaching capability, his level of training, his involvement in the broader community work, indicative of his references, his qualifications and skills at industrial teaching, his continued employment in his profession and his contribution to student’s performance in industrial subjects, it will be in the public interest for the Applicant to continue to teach industrial arts to students.

Findings

104. We note that the matters in the applicant’s early history were positively found (as a matter of judicial record). However, we note that the applicant does not fully accept this position / outcome, and provides explanations for the Court outcomes. Written submissions however concede these matters. These are matters which on the available evidence we make positive findings to the civil standard, noting that findings have been made to the criminal standard previously.

105. The import of these positive findings is in our view not of any great significance (by themselves) to the overall task with which we must traverse (risk to children real and appreciable). However we note that they set out the commencement of a pattern of behaviour that was to reoccur after a significant absence. In our view the similarities in the reaction of the applicant to certain instances where he loses control of the situation are stark. Based on the evidence we find that all of the reported instances have some factual merit (irrespective of the inability to test them all in the context of this hearing). Whilst some may be reactive actions on the applicant’s part, when the question of risk to children is considered we find that they are of some relevance and we so find.

Preliminary Consideration

106. In making these findings we are conscious of the applicant’s denials of any sexual or indecent actions or motives. In the main we accept this position on the evidence however with the remaining elements and findings, that does little (in our view) to mitigate risk. We note that sex based issues are not the sole element of risk of harm to children. It may be that the applicant through his training and career has understandably focussed on addressing his rebuttal from that perspective.

107. We have had regard to all of the evidence and submissions in these proceedings, even if we do not refer to all of that information specifically in these reasons. In particular, we have had detailed regard to and consideration of the evidence given at hearing and because of its significance we have set out much of it in these reasons.

108. We find that the applicant did not give all of his evidence in a candid manner, in that some aspects of his evidence were evasive and variable. The evidence about the allegations in the take away food store appears fanciful in light of the official police records of both parties. We note also that we advised the applicant on more than one occasion that he had to answer clearly and reminded him of his duty (both under oath and under the Act) to tell the truth and fully disclose matters.

109. We observe that the applicant appears to be a hard working and dedicated individual who applies himself to his work in a diligent manner. Some statements made during his evidence were not able to be clarified at hearing, but the aside responses and interjections at times in our view highlighted the pride that the applicant sees in his work, and the somewhat understandable resistance and reluctance to monitoring, restricted work and similar matters viewed as being punitive by the applicant. At one stage in his evidence in chief the applicant referred to his current HSC marking, and referred to that as being ‘sabotage’ and many of the allegations and resultant matters as equating to ‘sabotage’.

Section 30 (1) considerations

110. Section 30 of the Act sets out the factors that the Tribunal must consider in determining a review application. We shall consider each in turn.

(a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.

111. The applicant's application to the Tribunal is brought about by an adverse risk assessment of him by the respondent. The applicant’s adverse risk assessment is a combination of offences and matters which did not proceed to criminal charges or law enforcement involvement but were dealt with in the workplace. Those offences include convictions / offence proven for:

• Common assault 1991 following a guilty plea.

• Common assault 1999 following a guilty plea.

112. These matters were conceded by the applicant through his Solicitor as serious matters bearing in mind the context even though the matters are capable of being dealt with summarily.

113. The workplace matters which constitute ‘reportable conduct’ encompass nine matters from 2003 to 2016. A significant number of these were sustained, and in 2015 the applicant was required (directed) to resign from the NSW Department of Education as a teacher.

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

114. The most recent report adverse to the applicant arises in September 2016 during his placement as a temporary teacher. In the interim he has undergone counselling for anger management. He has also undergone child protection training. The applicant was subject to satisfactory supervision but ultimately was determined to have failed to maintain boundaries and was asked to resign from the DEC in December 2015.

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

115. The applicant’s age ranged from approximately 30 at the time of his initial criminal matters, and the more recent matters concluded when the applicant was 55 years old.

(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.

116. The ‘victims’ of the workplace finding conduct matters were school students under his care and were aged 13 to 18 years of age. In respect of the criminal matters his wife at the relevant times was aged 30 and 39 years of age. As she was a women she would have been vulnerable. Peripherally his daughter as a witness was aged 12 months to 12 years at the time of the matters. As a young child she would have been especially vulnerable.

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

117. Based on the age range set out (above) the difference in age between the applicant and the child victims was between 25-35 years, the applicant being older. In respect of his wife, the applicant was around the same age and he was approximately 29 years older than his daughter.

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

118. The applicant was aware that his students and his daughter were all children (except for some Year 12 students) at the relevant time.

(g) The person's present age.

119. At the time of the hearing the applicant was 56 years old.

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

120. The applicant’s criminal record comprises the matters set out at par 111 above. The offences are serious but not at the extreme end of seriousness. The pattern established by the conduct over 27 years is of significant concern and is serious when considering the protective jurisdiction and the purpose of these proceedings. The AVO matters arising do not involve any breach and as such are civil matters with no presumption adverse to the applicant.

121. The only evidence before the Tribunal concerning addressing his anger problems arises post hearing. It appears that the applicant has only taken steps to deal with these matters, notwithstanding the workplace investigation findings, recommendations and loss of employment, in order to gain a Working with Children Clearance. We make no finding in this regard but note the submissions of the respondent on this point.

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

122. Noting the pattern of behaviour, even at it’s lowest it presents a high likelihood of inappropriate behaviour which continued for many years. Various incidents were addressed and consequences arose. However the behaviour continued and only appears to have ceased due to the removal of the applicant from any position of authority over children. On current findings to the civil standard the problems appear to have been brought on by an inability to control anger arising from insubordination or lack of respect. Absent of any significant protective factors it appears highly likely that there could be a reoccurrence of such matters if the same conditions were present. We can only place limited weight on the e-mail advice of the Expert concerning the applicant’s progress.

123. If the offending behaviour was to reoccur it is clear from the material before us that the impact on children / child victims would be significant.

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

124. The applicant provided a number of references and letters of support and one expert report He also provided written material which was adopted in evidence. Many of the references were of limited weight due to either their lack of knowledge / disclosure about the adverse reports or an inability to provide anything other than limited general character evidence. Exhibits ‘A-6’ and ‘A-5’ are an exception to this concerning his teaching, but again provide limited useable insight. Likewise Exhibit ‘A-4’ concerning his marriage violence.

125. The applicant’s evidence is set out in detail above and most of the allegations are broadly refuted, denied or explained in some non-adverse manner. The expert report (whilst providing a positive conclusion) is in our view significantly adverse concerning verification of the applicant’s anger issues and aggressive behaviours.

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

126. There is no evidence of any relevant material under this section.

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

127. The respondent made various submissions and tendered a large volume of material arising under s 58 of the Administrative Decisions Act 1997 and s 31 of the Act. The respondent maintained its position that the clearance should be refused. In addition, they submitted that little weight could be attributed to the applicant’s own evidence including the expert report and character references.

The statutory approach

128. The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. Unlike the facts in BKE, the vast majority of matters in the current case were settled, in that the Courts had made positive findings on the conduct and the applicant did not resile from that position. In addition, BKE concerned an enabling order under s 28 of the Act whereas the current matter is a s 27 application where the applicant bears no overall onus (other than a duty to fully disclose). In the current matter, the applicant is not presumed to be a risk to children.

129. At pars 29 - 33 of BKE the Court observed:

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

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

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

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

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

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

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

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

Further Consideration

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

131. We note that on the available evidence, in the absence of positive findings for every allegation, we observe that the evidence tends towards a position as set out in BKE where the existence of risk has not been disproven.

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

133. In consideration of real and appreciable risk based on consideration of all the circumstances we find that the correct and preferable decision is that the applicant does pose a risk to the safety and well being of children and young people. We note that the safety, welfare and well being of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act. In making these findings, we are of the view that whilst the applicant appears to taken positive steps to address his anger, he appears (in the absence of any other evidence other than what has been tendered before us), to have limited insight into his behaviour and the impact that such behaviour has and could have on any victims or recipients of such behaviour.

Section 30 (1A) consideration

134. The section does not require formal consideration due to our finding as to risk. The section requires the reasonable person to allow his or her child to have direct contact with the affected person that was not directly supervised by another person whilst engaged in child related work. In addition the section requires that the making of the order be in the public interest.

Conclusion

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

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

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

138. It therefore follows that the correct and preferable decision is for the Tribunal to affirm the decision of the Children's Guardian.

Orders

1. The decision of the respondent dated 2 May 2017 to refuse the applicant’s Working with Children Check Clearance is affirmed.

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

Registrar

Decision last updated: 24 January 2018