DET v Children's Guardian

Case •

[2018] NSWCATAD 143

•

02 July 2018

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DET v Children's Guardian [2018] NSWCATAD 143
Hearing dates: 22 February 2018
Date of orders: 02 July 2018
Decision date: 02 July 2018
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
R Royer, General Member
Decision:

1) The decision of the Children’s Guardian on 15 December 2017 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is confirmed.

 

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

 It is noted that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
Catchwords: ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance- where charges under sections under sections 23A(1) and 23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) - where paramount concern is protecting children from child abuse - onus of proof in a review under section 27- whether finding on the balance of probabilities is able to be made that the alleged events occurred - whether there is an unacceptable risk of harm – whether a real and appreciable risk is posed by the applicant to the safety of children.
Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BGX v Children's Guardian [2014] NSWCATAD 173
BHL v Children’s Guardian [2015] NSWCATAD 46
BHY v Children’s Guardian [2015] NSWCATAD 91
BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKN v Children’s Guardian [2014] NSWCATAD 213
BKP v Children's Guardian [2014] NSWCATAD 207
BKV v Children’s Guardian [2015] NSWCATAD 65
BKV v Children’s Guardian [2015] NSWSC 1602
BLD v Children’s Guardian [2015] NSWCATAD 2
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
BPA v Children’s Guardian [2015] NSWCATAD 36
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
BVT v Office of the Children’s Guardian [2016] NSWSC 1169
BYR v Children’s Guardian [2013] NSWADT 310
BZU v Children’s Guardian [2016] NSWCATAD 3
Carr v Simnovic (1980) 26 SASR 263
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v BRL [2016] NSWSC 1206
Children’s Guardian v BQJ [2016] NSWSC 869
Children’s Guardian v CFW [2016] NSWSC 1406
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
CSZ v Children’s Guardian [2017] NSWCATAD 57
Greyhound Racing Authority v Bragg [2003] NSWCA 388
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378
Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
LA v Commissioner for Children and Young People [2012] NSWSC 1454
M v M [1988] HCA 68; 166 CLR 69
Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173
R v Commission for Children and Young People [2002] NSWIR Comm 101
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Re Sophie (No 2) [2009] NSWCA 89
Roberts v Balancio (1987) 8 NSWLR 436
Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
YG & GG v Minister for Community Services [2002] NSWCA 247
ZZ v Secretary, Department of Justice [2013] VSC 267
Category:Principal judgment
Parties: DET (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel/Advocates:
L Finch (Applicant)
V Hartstein (Respondent)

  Solicitors:
Crown Solicitor’s Office (Respondent)
File Number(s): 2017/00383274
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. It is noted that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for Decision

Introduction

  1. The applicant is known by the pseudonym “DET” in these proceedings in order to protect the identity of the applicant which would also identify children associated with this matter.

  2. DET applied for a Working with Children Check Clearance on 5 February 2016 and filed in the Tribunal an application for review under section 27 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”) concerning a decision of the Children’s Guardian, made and notified to DET on 15 December 2017, to refuse her a Working with Children Check Clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review. The application for review under section 27 of the Act in the Tribunal was filed within time on 19 December 2017.

  3. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 apply to this particular matter due to the date of the application which was 5 February 2016 after the commencement date of the amendments: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. In CHB v Children’s Guardian [2016] NSWCATAD 214 the Tribunal held that section 30(1A) of the Act applies where the Children’s Guardian has made a decision to cancel a person’s Working with Children Check Clearance after the commencement of the amendments and the application for review is made after the commencement of those amendments.

  4. The applicant was subject to a risk assessment by reason of section 14 and section 15(1) of the Act. The applicant was charged in relation to events which occurred in May 2014 under sections 23A(1) and 23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) for knowingly taking part in the cultivation of a prohibited plant (cannabis) and the enhanced indoor cultivation of a commercial quantity of a prohibited plant and exposing children to that cultivation process or substances used for the cultivation process. The applicant was convicted of the offence under section 23A of the Drug Misuse and Trafficking Act and sentenced to a term of imprisonment of 12 months suspended under a bond pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be of good behaviour for a period of 12 months on conditions as to reporting and supervision. As a result the applicant was subject to an assessment requirement by reason of schedule 1(3)(e) of the Act. Following the risk assessment and pursuant to section 18(2) of the Act the Children’s Guardian refused to grant a Working with Children Check Clearance to the applicant.

  5. The applicant seeks a Working with Children Check Clearance, in order to work with children as an early childhood educator, although if the clearance is granted she can work in any child related work.

  6. The applicant is without a Working with Children Clearance now, preventing her from working in “child-related work”: subsection 6(2)(f) and section 8 of the Act; clause 9 of the Child Protection (Working with Children) Regulation 2013. That means she cannot work in the childhood education related employment sector.

  7. This is an application pursuant to section 27 of the Act. The application for review was heard orally by the Tribunal on 22 February 2018. The respondent opposes the application.

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

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

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

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

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

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

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

The evidence relied upon in the hearing

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

  1. Documents filed by the respondent on 19 January 2018 pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) comprising 1465 pages: Exhibit R1.

  2. Further documents filed by the Children’s Guardian on 24 January 2018 comprising 158 pages: Exhibit R2.

  3. Submissions of the Children’s Guardian filed 9 February 2018: Exhibit R3.

  4. Application dated 19 December 2017 and filed on the same date with the registry in Sydney: Exhibit A1.

  5. Affidavit of the applicant of 29 January 2018 and filed on 30 January 2018: Exhibit A2.

  6. An affidavit of a friend and former employer of the applicant dated 28 January 2018 and filed on 30 January 2018: Exhibit A3;

  7. Report of a psychologist Chelsey Dewson dated 22 January 2018: Exhibit A4;

  8. Applicant’s submissions filed 19 February 2018: Exhibit A5;

  9. Email string from a meeting 30 June 2017 and dated 2 and 3 July 2017: Exhibit A6;

  10. Plan of Home showing location of the growing shed and room: Exhibit A7;

  11. Report of psychiatrist Gordon Davies dated 16 November 2017: Exhibit A8.

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

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

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

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

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

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

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

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

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

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Legislative Provisions relevant to the decision

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

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

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

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

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

“Child and young person abuse

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

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

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

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

is guilty of an offence.

Maximum penalty: 200 penalty units.”

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

"Object of Act

The object of this Act is to protect children:

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

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

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

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

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

14 Assessment requirements

A person is subject to an

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

  1. The applicant is subject to an assessment requirement because the offences with which she was charged are offences referred to in schedule 1(3)(e) of the Act. The detail of the offences will be referred to later in these reasons. The applicant was convicted of the offence pursuant to section 23A of the Drug Misuse and Trafficking Act. That section provides as follows:

23A   Offences with respect to enhanced indoor cultivation of prohibited plants in presence of children

(1) A person who:

(a) cultivates, or knowingly takes part in the cultivation of, a prohibited plant by enhanced indoor means, and

(b) exposes a child to that cultivation process, or to substances being stored for use in that cultivation process,

is guilty of an offence.

(2) A person who:

(a) cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants by enhanced indoor means which is not less than the commercial quantity applicable to those plants, and

(b) exposes a child to that cultivation process, or to substances being stored for use in that cultivation process,

is guilty of an offence.

(3) A person who:

(a) cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is:

(i) not less than the small quantity applicable to the prohibited plants, and

(ii) less than the commercial quantity applicable to those prohibited plants, and

(b) cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose, and

(c) exposes a child to that cultivation process, or to substances being stored for use in that cultivation process,

is guilty of an offence.

(4) If, on the trial of a person for an offence under subsection (2), the jury is not satisfied that the number of prohibited plants involved is equal to or more than the commercial quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of:

(a) an offence under subsection (3), if the jury is satisfied that the person contravened subsection (3), or

(b) an offence under subsection (1), if the jury is not satisfied that the person contravened subsection (3), but is satisfied that the person contravened subsection (1),

and the person is liable to punishment accordingly.

(5) If, on the trial of a person for an offence under subsection (3), the jury is not satisfied that the person cultivated, or knowingly took part in the cultivation of, a prohibited plant for a commercial purpose, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1), and the person is liable to punishment accordingly.

(6) It is a defence to a prosecution for an offence under subsection (1), (2) or (3) if the defendant establishes that the exposure of the child to the prohibited plant cultivation process, or to substances being stored for use in that process, did not endanger the health or safety of the child.

(7) If, on the trial of a person for an offence under subsection (1), (2) or (3), the jury:

(a) is not satisfied that a child was exposed to the cultivation of a prohibited plant by enhanced indoor means, or to substances being stored for use in such a cultivation process, or

(b) is satisfied that the defence referred to in subsection (6) has been made out,

the jury may acquit the person of the offence charged and find the person guilty of an offence under section 23 (1) (a), (2) (a) or (1A), respectively, and the person is liable to punishment accordingly.

(8) In this section, child means a person who is under the age of 16 years.

  1. It is noted that if there is a defence available under subsection 23A(6) and there is available a conviction on the backup charge under section 23 of the Drug Misuse and Trafficking Act. That defence did not find application in this matter and therefore it should be presumed that the applicant’s conviction did expose children to the cultivation process and it could not be proven that exposure to substances being stored to be used in that process did not endanger the health or safety of the children.

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

“15 Assessment of applicants and holders

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

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

(3) Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder....”

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

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

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

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

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

  6. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

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

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

“However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

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

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

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

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

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

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

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

  1. In the following paragraph the Minister stated:

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

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

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

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

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

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

The Issue

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

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

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

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

Considerations and the Evidence

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

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

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

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

15 Assessment of applicants and holders

...

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

(4A) The Children’s Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children’s Guardian is satisfied that:

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

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

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

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

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

(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.

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

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

  3. Even though the rules of evidence don’t apply, the applicant took objection to material in pages 804 to 1084 in Exhibit R1. There are a number of allegations contained in those documents. The persons who have made those allegations have not been cross-examined or made available in order to test their allegations. The Tribunal admits that material into evidence on the basis that the material does not provide evidence of the truth of the allegations, that material is simply evidence that allegations have been made. The Tribunal is not in a position to determine whether those allegations are established on the balance of probabilities. That will be the task of a different decision-maker in a different jurisdiction.

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

  1. The applicant is not a disqualified person.

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

  3. In November 2014 the applicant pleaded guilty to an offence under section 23A of the Drug Misuse and Trafficking Act which can be plainly summarised as knowingly take part in the cultivation of the commercial quantity of a prohibited plant (cannabis) by enhanced indoor means and in the process exposed children to that cultivation and the chemicals used in that process.

  4. In the remarks on sentence in relation to the applicant’s husband who was charged with the same offence, Judge Hanley SC observed that the penalty for the offence is 18 years imprisonment and/or a fine of $462,000 and there is no standard non-parole period. His Honour took into account the maximum penalty as a guide and an indication by the legislature as to how seriously it regards this type of offence. His Honour indicated the applicant admitted she was aware of the plants but gave her a suspended sentence because she had a very limited role. The applicant’s husband was the principal offender. His Honour determined that the husband’s offence was at just below the objective mid-range of objective seriousness. His Honour also took into account the aggravating factor of the presence of children.

  5. His Honour’s remarks on sentence in relation to the applicant identified that:

“…by way of comparison to similar types of offending behaviour that hers is at the very, very bottom of objective seriousness by way of comparison.”

  1. During the course of the remarks on sentence for the husband His Honour identified that the applicant’s husband was at the time of sentence living with his mother and the children of the applicant and her husband and observed that the husband:

“…had custody of the children since January 2015 as a result of a finding that the circumstances in which the [applicant] provided as living conditions for the children was unsatisfactory. The extent or the reason for that is not apparent to me and not relevant in relation to these proceedings.”

  1. The applicant’s husband was sentenced to imprisonment and will be eligible to be released on parole on 1 July 2018.

  2. The sentencing judge relied upon a finding made by a Local Court magistrate that the applicant’s husband “was carrying out the growing of cannabis previously before this crop, and regularly.”

  3. Before attending the applicant’s home, the police were holding the applicant’s husband at the police station on an unrelated matter. The husband made admissions to cultivating 13 cannabis plants by enhanced indoor means. When the police conducted a physical search of the property they found 20 cannabis plants in a shed. In a second shed and found 17 cannabis plants, 7 seedlings with roots, 21 seedlings without roots and equipment. One of the bedrooms in the house had been divided into 2 grow rooms. In one of those rooms there were 63 plants ranging in size from 10 cm to 50 cm, equipment and approximately 311 g of dried cannabis head and stem. The second grow room accommodated 27 cannabis plants ranging in size from 50 cm to 140 cm and equipment. In the laundry was 90.2 g of cannabis head, a box containing 5 seeds, a cash box containing $35.30, resealable plastic sandwich bags and electronic scales. In the kitchen there was a 40 cm cannabis plant in a pot. In the dining room there were 2 cannabis plants approximately 100 cm, 308 cannabis seeds and documents outlining drug transactions. In the children’s playroom was a box containing approximately 155 g of dry cannabis head or stem. In the main bedroom there was $7494.

  4. So, in total there were 132 cannabis plants, 313 cannabis seeds, 534.1 g of dried cannabis head and stem, 8 grow lights, 8 Transformers. The plants were all grown in a growth medium which requires considerable care and skill on behalf the person tending the plants according to the police. The plants were also labelled with a small marker indicating the particular strain of cannabis. The applicant attended the police station where she participated in an electronically recorded interview with the police. She made admissions to knowing the husband was growing cannabis at the location and occasionally filling watering cans which were used to water the plants. The applicant also said she was unaware of what happened to the cannabis after harvest but she was an occasional user. The applicant blamed the husband for the establishment and running of the hydroponic growing operation stating that he was very controlling and she felt powerless to prevent the offence. She did not explain to the police why she didn’t contact them or leave the location with her children despite the risks involved in the cannabis cultivation.

  5. The applicant invited the Tribunal to find that she was living under duress in relation to the circumstances of her conviction and that the cannabis cultivation occurred against her will.

  6. The sentencing remarks by the District Court Judge appeared to accept that the applicant was overborne by a violent partner. His Honour observed:

“It is well documented that irrespective of what may appear to be an obvious choice for those not within the violent relationship that it is not easy to walk away, it is not easy to resist, it is not easy to complain and I said that that was the situation she found herself in. She had also been in the relationship for a very long time. She had her first child at quite a young age. He also no doubt was concerned about the relationship of the children with her offender and former partner.”

  1. His Honour considered that police assessment when they asked the applicant why she had not reported the criminal activity to the police, was somewhat superficial in its assessment of the situation in which the applicant found herself. His Honour had a presentence report and a number of referees’ written testimonials to which he referred in order to form that opinion. The applicant had also sought an apprehended domestic violence order to prevent him interfering with her in any violent way either physically or psychologically in the future after their separation. Counselling provided to the applicant by FACS since her arrest provided her with the capacity to separate from her former husband.

  2. It is accepted that the offence was serious because the children were put at serious risk of harm. The risks of harm are identified as arising from watering cans filled with chemicals, a significant risk of fire and/or electrocution due to the wiring of the ‘grow room’ in the presence of water, baseball bats which were in the laundry near the front door indicating that the father believed he required protection from other persons with those implements, cannabis was found in areas of the home accessible by the children including their playroom, the ducting for the growing rooms was vented into the roof space which also added to the risk from harmful chemicals or from the safety of the building in the event of fire or simply because of the lack of integrity of the building. It was clearly not an appropriate environment in which to raise children.

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

  1. The offences occurred in May 2014.

  2. The applicant has not been convicted of any other serious criminal offence.

  3. The applicant, after her arrest, sought an apprehended domestic violence order against her former husband.

  4. There were reports in early 2015 made to FACS which alleged that the applicant was smoking cannabis at home with her new partner and left the bong and marijuana within easy access for the children. The applicant relies upon urinalysis reports to the contrary. This was probably a malicious allegation. It was also alleged that one of the children was the victim of violence perpetrated by the new partner. It was also alleged that the applicant was supplying marijuana to her niece and that the applicant had encouraged one of the children to tell lies to the police about the father bashing the applicant. On the other hand, after investigations were undertaken in relation to allegations of sexual abuse which were also made the investigators formed the view that the children were not telling the truth and they may have been coached by their paternal grandmother to make the disclosures in the hope of strengthening the grandmother’s position in parenting proceedings under the Family Law Act 1975 (Cth).

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

  1. The applicant was aged 40 when the offence was committed.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

  1. The children who were present in the home were aged 10, 7 and 3.

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

  3. The particular offence requires protection of children from harmful effects of cultivation of illicit drugs in their home. The children were particularly vulnerable because they have nowhere else to live apart from the home in which the marijuana was cultivated. The children relied upon the applicant to provide a safe home and meet their daily needs. The children were also victims of domestic violence which was perpetrated within their home. It was reported that on the applicant’s fortieth birthday party she became very violent, verbally abused everyone and stormed off. The children were witnessed to be distressed and crying.

  4. The witness who gave evidence in support of the applicant herself identified that she made a report to FACS in late 2013 that the applicant had “lost the plot” and “smashed the whole house up” with the children present. The applicant was reported to have gone to a psychiatric ward at the local hospital for one week. The applicant’s adult son saw the husband hit the applicant’s head on the washing machine. The applicant showed the witness the bruises but did not blame the husband and the witness observed that the applicant seemed to think the incident was funny. The witness also said that the applicant was apparently “high as a kite” on Valium and driving with the children in the car. The children also reported the violence and yelling in their home. It was said that the children were “petrified” by this violence and yelling. It was also said that they didn’t want to be at home when there was fighting and ran screaming outside or hid in one of the bedrooms.

  1. It was also reported prior to the incident leading to the arrest of the applicant that the children were exposed to drug taking by both the applicant and her husband. This is consistent with the admissions made by the applicant to the police.

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

  1. The difference in age between the applicant and the children was in each case more than 30 years.

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

  1. The applicant knew that they were children because they were her children living in the home.

The person’s present age

  1. The applicant is aged 44 years at the time of hearing.

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

  1. The applicant does not have a criminal record apart from this offence.

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

  1. The Tribunal is to form its own opinion about the likelihood of any repetition of conduct or risk in relation to the applicant independent of any expert opinion. An indicator of future behaviour is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves. The applicant has completed 9 courses between 11 August 2015 and 19 December 2017 which are set out in her written submissions. These are appropriate courses to increase parenting capacity and ability to look after children.

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

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

  4. In this matter the applicant relies upon the report of a psychologist who has conducted a risk assessment. The assessment is based upon the documents provided to the psychologist. According to that assessment the applicant is at low risk of reoffending and that the only the foreseeable risk is in the applicant herself being vulnerable and unable to protect those children in her care from an external threat.

  5. The applicant submits that there is a hearing in relation to the parenting proceedings scheduled to occur when the applicant’s husband is released from jail. It is unlikely for the reasons which are set out later in these reasons that any allegations of sexual abuse accusing the applicant as the perpetrator will be given weight by the Court hearing that application. The applicant has identified in the submissions the relevant notes concerning this investigation of the sexual abuse allegations. It is accepted by the Tribunal that there is no reasonable likelihood of any sexual abuse allegation being found to have occurred on the balance of probabilities.

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

  1. The applicant has now provided information including the material recorded in the exhibits which includes an affidavit sworn by her. In that document she sets out the history of relationship with her former husband.

  2. The applicant has also provided an affidavit of a witness in support which is referred to earlier in these reasons.

  3. The applicant relies on the sentencing remarks made by the District Court judge.

  4. The applicant’s affidavit also refers to the proceedings under the Family Law Act in which she is opposing and in contest with the former husband and paternal grandmother. The applicant says that she has been drug-free since May 2014 and completed a number of courses about which she has documentary evidence.

  5. The applicant also relies upon the transcript of her former husband’s appeal to the Court of Criminal Appeal in November 2017. The Presiding Justice observed that the applicant made admissions to the police that she was aware of the criminal enterprise which was occurring. The applicant is observed to have admitted that she also allowed the enterprise to continue under her roof.

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

Any other matters that the Children’s Guardian considers necessary

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

  2. The Children’s Guardian also referred to an incident in late 2014 where the mother had written on the bottoms of 2 children in texta: “My shit smells”; and “Poo not shit”. It is reported that the applicant thought this was funny. The former husband saw the writing on the children’s bottoms when they were to spend time with him for 2 nights during school holidays in early 2015. The children or at least one of them, alleged that they were scared of the mother’s partner who had allegedly pushed one of them over causing bruises on her arms and had also sworn at her. The applicant was alleged to have assaulted her, pulled her hair and caused her to hit her head on the door frame.

  3. During the court proceedings under the Family Law Act an invitation was extended to the Secretary, Department of Family and Community Services to intervene in the proceedings between the applicant and her former husband. The Secretary did not intervene. An Independent Children’s Lawyer appeared for the children and consent orders were more recently made on an interim basis that the children continue to reside with the paternal grandmother and the father and that the paternal grandmother have interim sole parental responsibility for the children. In January 2017 the mother continued to spend supervised time with the 2 younger children in a supervised contact centre for a specified period of time. Then orders were made for the mother to spend time with the children in the general presence of a number of specified people. In August 2017 consent orders were again made for the mother to spend time with the 2 younger children in the general presence of an approved person. The eldest child is to see her mother and spend time with her as she wishes. This was agreed to by the applicant on a without admissions basis in order to progress the time that she spends with her children. This is not the same as supervised time and is no reflection of a determination that the applicant may pose a risk to the safety of the children. In fact, it would appear from her oral evidence that the applicant will be seeking on a final basis that the children live with her and she have sole parental responsibility.

  4. Allegations were made that the applicant has sexually abused her children, but these allegations have been found by the police investigation to be not substantiated and that concerns have been raised by the investigating authorities that the paternal grandmother has coached the children to make the allegations. In other words, little weight could be placed upon those allegations because they have not been substantiated or established to the satisfaction of the investigators on the balance of probabilities. No charges have been laid and are unlikely to be laid as a result of the abuse allegations.

Consideration

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

  2. The Children’s Guardian has relied heavily upon the orders made in the parenting proceedings as indicating that there is a risk to the children because another person is required to be present at the time that the applicant spends time with those children. Those orders are interim orders and a final hearing will determine whether there is a need for continued concern about the safety of the children when they are with their mother. There has been no such determination to this point in time and the applicant agreed to those provisions on a without admissions basis.

  3. The friend of the applicant who gave evidence by affidavit observed that the applicant has been much improved since separation from her former husband. The friend also observed the applicant in her employment in child-related work. The deponent considered that the applicant was one of the best workers that she had employed.

  4. The most serious aspect of this matter is the applicant’s behaviour whilst living with her former husband and exposing the children to significant risks during the course of the cohabitation while her former husband was cultivating cannabis on a large scale for commercial benefit and possibly on a repeat basis.

  5. The hospital notes produced at the request of the Children’s Guardian which form part of Exhibit R2 page 49, refer to the fact that the applicant has been seen by a psychiatrist since the age of 3 “due to behavioural problems”. The presenting problem at that time was suicidal ideation in the context of the recent custody issues in relation to her children. It is also recorded that the applicant suffered from historical emotional abuse from her mother while she was growing up. A current diagnosis was given of “situational stress”. The applicant, however, did not tell the psychologist who wrote the report before the Tribunal about these matters. The applicant should have told her about these matters which may have affected the assessment of risk. The FACS records in Exhibit R1 at pages 23-26 record the incident notified by the witness to FACS where it is said that the applicant in 2013 behaved violently and was “high as a kite” on Valium when the children were in her care. The descriptions recorded in those records paint a violent household where the applicant was behaving in a manner which was threatening to the children’s welfare and safety. The evidence given to the Tribunal from the witness minimised those matters.

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

  7. 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.

  8. The Tribunal agrees with the reasoning in CHB v Children’s Guardian [2016] NSWCATAD 214 at [109]-[124]. Therefore, it is determined that the provisions of section 30 (1A) of the Act apply to this application.

  9. The Tribunal is required to consider subsection 30(1A) of the Act in the event that the Tribunal considers that the applicant does not pose a risk to children. That subsection provides that the Tribunal may not make an order under this Part of the Act which has the effect of enabling a person, or the affected person, to work with children in accordance with this Act unless the Tribunal is satisfied that:

  1. 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

  2. it is in the public interest to make the order.

  1. The Tribunal has previously considered this provision in CSZ v Children’s Guardian [2017] NSWCATAD 57, where an enabling order was made, and in CHB v Children’s Guardian [2016] NSWCATAD 214, where the applicant had a clearance cancelled by the Children’s Guardian and the Tribunal confirmed that decision. It was observed that analogous to the Victorian legislative scheme, the matters in s 30(1A) of the Act and its Victorian equivalent only need to be considered once the risk test has been satisfied: see ZZ v Secretary, Department of Justice [2013] VSC 267.

  2. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". There is no definition of “child abuse” contained in the Act. The Children’s Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows:

“Child and young person abuse

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

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

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

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

is guilty of an offence.

Maximum penalty: 200 penalty units.”

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

"Object of Act

The object of this Act is to protect children:

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

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

  1. The Tribunal finds that even if the applicant does not pose a risk to the safety of children, a reasonable person would not allow his or her child to have direct, unsupervised contact with the applicant, while the applicant was engaged in child-related work. This is because a reasonable person knowing the matters the Tribunal has referred to would consider that the applicant poses a degree of risk which is unacceptable to that person in terms of physical and psychological risk.

  2. This determination is consistent with the objects of the Act and takes into account the variety of the forms of abuse contemplated in the offence creating provision in section 227 of the Children and Young Persons (Care and Protection) Act 1998.

  3. Since the Tribunal is not satisfied that a reasonable person would allow his or her child to have contact with the applicant contemplated by s 30(1A)(a), the Tribunal is precluded from making an order enabling the applicant to work with children in accordance with the Act. It is thus not necessary to consider the application of s 30(1A)(b).

Public Interest: section 30(1A)(b) of the Act

  1. It is unnecessary in this matter for the Tribunal to make a determination about this particular issue.

  2. The public interest is not a confined concept. It is the Tribunal’s determination that if required to decide whether it is in the public interest to make the order, for the reasons which have been stated earlier and having regard to the objects of the Act and section 4 of the Act, it would not be in the public interest to make an order enabling the applicant to work with children in accordance with the Act.

Conclusion

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

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

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

  4. The evidence received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does currently pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. There may be conditions which can be imposed which ameliorate the risk but the Tribunal is not empowered to make an order with conditions. The type of conditions which may be imposed in the Family Law Act proceedings will mitigate any risk to the applicant’s own children.

  5. It is concluded on the balance of probabilities that having regard to the circumstances surrounding the alleged conduct by the applicant that the existence of a real and appreciable risk to children has not been disproven: see BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33]. Having regard to the evidence of the expert and the failure to disclose certain facts to the expert, the Tribunal can place minimal weight on that expert opinion as to risk. The offence with which the applicant was charged and convicted refers specifically to the presence of children from which it is presumed and appropriately inferred the children will be adversely affected by the illegal cultivation activity which was permitted to be undertaken in their presence and in their home. The applicant has time with her own children but the determination of any risk she may pose to them is to be determined in a different jurisdiction at a final hearing and appropriate safeguards may be put in place in relation to the time spent by the applicant with them.

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

Order

  1. The orders of the Tribunal are that:

  1. The decision of the Children’s Guardian on 15 December 2017 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 (NSW) is confirmed.

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

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

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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: 02 July 2018

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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