DMU v Children's Guardian

[2018] NSWCATAD 261

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DMU v Children’s Guardian [2018] NSWCATAD 261
Hearing dates:	Hearing dispensed with pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW)
Date of orders:	08 November 2018
Decision date:	08 November 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member R Royer, General Member
Decision:	(1)   The decision made to cancel the applicant’s Working With Children Check Clearance is set aside. (2)   The Children’s Guardian shall forthwith reinstate a Working with Children Check Clearance to the applicant known in these proceedings as DMU. (3) 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 (NSW). Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
Catchwords:	ADMINISTRATIVE LAW- review under section 27 Child Protection (Working with Children) Act 2012 (NSW)-where cancellation of working with children check clearance - where application for protection of the children in the Children’s Court due to abuse -where applicant granted care of his children by Children’s Court – where the children’s mother abused the children - where paramount concern is protecting children from child abuse – assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children – where review finds preferable decision is to set aside the cancellation and grant a clearance.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Children (Criminal Proceedings) Act 1987 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Family Law Act 1975 (Cth) Interpretation Act 1987 (NSW)
Cases Cited:	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 BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111 BKE v Office of the Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 BXJ v Children's Guardian [2016] NSWCATAD 11 BYR v Children’s Guardian [2013] NSWADT 310 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v BQJ [2016] NSWSC 869 Children’s Guardian v CKF [2017] NSWSC 893 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 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 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 CZI v Children’s Guardian [2017] NSWCATAD 179 DNQ v Children’s Guardian [2018] NSWCATAD 188 Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 M v M [1988] HCA 68; 166 CLR 69 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Re A Solicitor’s Clerk [1957] 1 WLR 1219 Roberts v Balancio (1987) 8 NSWLR 436 Robertson v City of Nunawading [1973] VR 819 Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 SL v Secretary, Department of Family and Community Services Tilley v Children’s Guardian [2017] NSWCA 174 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DMU (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel/Advocates: DMU in person (Applicant) C Nelson and S Huang (Respondent)   Solicitors: DMU (Applicant in Person) Crown Solicitor’s Office (Respondent)
File Number(s):	201800211781
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 (NSW). Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. This is an application filed on 10 July 2018 seeking a review of the decision of the Children’s Guardian to cancel the applicant’s Working With Children Check Clearance. The application for review is pursuant to section 27 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”) and the cancellation was pursuant to section 23(1) of the Act.

2. The Children’s Guardian informed the applicant, who is referred to as “DMU” in these proceedings, on 19 June 2018 that due to an adverse risk assessment conducted as a result of the applicant’s eight month old child’s presentation at Hospital in a shocked state, dehydrated, with a decreased level of consciousness and a reduced heart rate, and concerns about the care of his other two year old child, his Working with Children Check Clearance was cancelled. The full details of this terrible situation for the applicant’s children will be referred to in the appropriate part of these reasons dealing with the evidence.

3. The applicant and his wife were respondents in the Children’s Court proceedings which followed the removal of the children from his and his wife’s care and placement of them in kinship care. There have now been final orders made for the care of the children by the Children’s Court. The children are to be restored over an 18 month period to the care of the applicant who is separated from their mother and she is only permitted supervised contact with the children.

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

5. The applicant was advised that his clearance was cancelled on 19 June 2018. So the application for a review under section 27 of the Act was filed within the time permitted.

6. The primary 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].

7. The ultimate conclusion of the Tribunal on this application is that the applicant should have a Working With Children Check Clearance. The reasons for the decision are set out in more detail in the following paragraphs.

8. The Tribunal determined on 11 October 2018 pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) that this was an appropriate matter to be completed without an oral hearing. The applicant sought that the matter be dealt with summarily on the same day that it was decided that the matter could be finalised by dispensing with a hearing. The Children’s Guardian opposed the application that the matter be determined summarily on 11 October 2018, but did not oppose the matter proceeding so that a final hearing may be dispensed with, and that submissions may be received by the Tribunal in order to complete the review in this matter.

9. The Tribunal is satisfied that the issues for determination can be adequately dealt with in the absence of the parties with the benefit of written submissions and the other documents filed with the Tribunal. This enables the cost to the parties and to the Tribunal to be proportionate to the importance and complexity of these proceedings. It also facilitates the just, quick and cheap resolution of the real issues in these proceedings. The expanded reasons for this determination will become apparent and shall be identified after the evidence is referred to under the appropriate headings in this decision.

The material relied upon

10. The documentary material provided on behalf of the applicant and the respondent on the review application, and received by the Tribunal has been reviewed before coming to the decision. This material includes the section 58 Administrative Decisions Review Act 1997 (NSW) documents filed 23 August 2018, update of the Family and Community Services material filed 20 September 2018 and documents filed 26 September 2018 on behalf the respondent. The respondent also provided written submissions filed on 26 October 2018.

11. The applicant relied upon his written submissions which were filed on 19 October 2018. The applicant also relied upon the material filed in the Children’s Court particularly a Minute of Order which was made in the Children’s Court. The applicant also filed and relied upon with the consent of the Children’s Court the Care Plans in relation to both children.

12. The Children’s Guardian in this matter ultimately submitted that its position in respect of the administrative review is neutral, so that it neither supports nor opposes the application by the applicant.

Legislative provisions

13. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 apply to this particular matter: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. The initial application to the Children’s Guardian was dated 23 January 2017 nominating education as the child related employment sector.

14. 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 decided 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.

15. The Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW) amendments to the Act commenced on 25 October 2016. In particular the amendments made to section 30(1) do not apply to or in respect of a review (or an appeal arising from a review) if the review commenced before that amendment and that provision, as in force immediately before that amendment, continues to apply to and in respect of any such review or appeal: Schedule 3 Part 5 clause 25 of the Act. This review commenced after the commencement of those amendments.

16. The Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) (“2018 Amendment Act”) was given assent on 18 April 2018 and relevantly for this review the amendment to subsection 30(1)(h) and insertion of subsection 30(1)(i1) of the Act both commenced on 1 June 2018. Section 5B of the Act was inserted and commenced at the same time.

17. There were no transitional provisions in the 2018 Amendment Act.

18. Because of the terms of section 30 of the Interpretation Act 1987 (NSW) the amendments will be applied: see SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 per Basten JA (with whom Ward and Simpson JJA agreed) esp. at [33]-[36]. None of those amendments purport to affect or vary in any material way any rights, liabilities, or obligations of any person but simply specify existing factual matters which must be taken into account by the Tribunal. The antecedent factual matters are the basis for making a determination as to the future grant of the Working with Children Check Clearance by way of an order after determining the review application: see also Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 at 31, per Jordan CJ; Robertson v City of Nunawading [1973] VR 819 at 824, per Victorian Full Supreme Court; Re A Solicitor’s Clerk [1957] 1 WLR 1219; La Macchia v Minister for Primary Industry (1986) 72 ALR 23 (Full Court of the Federal Court); Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856. The presumption against retrospectivity does not apply in these circumstances. This determination is also appropriate since the nature of the application and the issue the Tribunal is to decide in these proceedings is whether the applicant now poses a risk to the safety of children. This determination is also consistent with the reasoning in CHB v Children’s Guardian [2016] NSWCATAD 214.

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

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

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

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

“Child and young person abuse

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

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

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

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

is guilty of an offence.

Maximum penalty: 200 penalty units”

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

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

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

25. 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."

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

27. "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 which applies in relation to the applicant.

28. The definition of "risk to the safety of children" is a reference to a real and appreciable risk to the safety of children: section 5B of the Act.

29. The applicant is, relevantly for the purposes of the Act, now an adult and was an adult when his children suffered from neglect and abuse.

30. A person is not permitted to engage in “child-related work” unless the person holds a Working With Children Check Clearance: see section 8 of the Act. The applicant wishes to work as a nurse in the NSW Health system. That is why he apparently requires a clearance. If he did not propose to work with children, he would not require a clearance. Whatever the reason for the original application it is now necessary in this review to consider whether the clearance was appropriately cancelled and whether it should remain cancelled.

Standard of Proof and Onus of Proof

31. The standard of proof applied in this application is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J at [34].

32. Untested allegations and the manner in which the Tribunal is to approach them has been considered in Children’s Guardian v CKF [2017] NSWSC 893 and by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174. In this matter there was a proceeding in the Children’s Court where that Court determined issues of risk to the particular children the subject of that application.

33. Any finding of fact will be determined in this matter upon the civil onus of proof which is the balance of probabilities.

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

“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.”

35. 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.

36. 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.”

37. 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.”

38. 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)

39. 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.

40. 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 onus to determining a factual matter: CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61].

41. 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.”

42. 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)

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

44. Pursuant to section 15 of the Act the Children’s Guardian may 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....”

45. The applicant was subject to a risk assessment due to the provisions of section 15 of the Act.

46. The hearing before the Tribunal is pursuant to an application under section 27 (2) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.

47. 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. The hearing may be conducted on the papers to further this objective.

48. 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.

49. 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.

50. 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].

51. 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. Section 5B of the Act now makes that clear.

52. 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.”

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

54. 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].

55. 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.

56. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which is the application for review under section 27. 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 are sub sections 30 (1) and 30(1A) of the Act. The Children’s Guardian has already performed an assessment pursuant to section 15 of the Act. It is relevant to note that the factors contained in the subsections address the same considerations expressed in slightly different language.

57. 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.

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

“…(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.

(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.

59. Section 30 of the Act relevantly provides 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 criminal history and the conduct of the person since the matters occurred,

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

(i1)   any order of a court or tribunal that is in force in relation to the person,

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

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

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

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

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

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

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

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

60. These provisions were amended as observed earlier in these reasons. The amendments are included in the extract.

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

62. Also, 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: section 63 of the Administrative Decisions Review Act.

The Issue

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

Other matters

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

Consideration of the evidence

65. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act. The evidence received by the Tribunal is therefore required to be considered under each of the current subsections of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. There are now thirteen subsections. Some of the subsections may be thought less relevant and may be given less weight than others. That evidence is now set out under each of the relevant statutory provisions as subheadings in these reasons.

66. The submissions of the respondent as to the legal principles to be considered in this application are accepted as a correct statement of the relevant matters.

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

67. The NSW Department of Family and Community Services in early 2017 received a risk of significant harm report that one of the applicant’s children had presented to hospital with a low heart rate, dehydration, lethargy and multiple bite marks on his body that appeared to be bruises. The mother of the applicant’s children reported to hospital staff that the child had been vomiting and refused food. She reported that his eyes were rolling back in his head and that he was floppy. The mother admitted to biting the child because he was “so cute”. It was reported that the child’s older brother could not walk.

68. There were also observed the multiple small sub-acute bilateral subdural haemorrhages and bilateral retinal haemorrhages consistent with a non-accidental injury when a CT scan was conducted a few days later. The CT scan showed no acute intervention was required.

69. The applicant and his wife were interviewed. The history given was of the youngest child undergoing a number of short distance falls in the family home.

70. The consultant paediatrician at the Child Protection Unit, Westmead Children’s Hospital provided an interim report to JIRT which assessed that the explanation of the child’s injuries given by the parents was not adequate in terms of his symptoms and observations.

71. The children were assumed into the care of the Department of Family and Community Services due to the injuries which were not adequately explained, and the serious concerns held for the supervision of the children. It was also asserted that their developmental needs were not being met.

72. The final report of the Child Protection Unit asserted that the injuries observed were consistent with and suspicious of acceleration-deceleration (shaking) injury.

73. The mother was arrested and charged in relation to the child’s bruising. The mother was charged with assault occasioning actual bodily harm and intentionally taking action that has resulted in the physical development or health of the child or young person being significantly harmed. It is significant to note that the applicant was never charged with inflicting the injuries to his child. The mother apparently made concessions on 14 June 2018 and noted in the Care Plans that she accepted full responsibility for the injuries caused to her child. The mother pleaded guilty to the charges.

74. After JIRT had earlier completed its assessment and the physical harm and inadequate supervision towards the child was substantiated on the balance of probabilities. The Department of Family and Community Services identified at that time the applicant as a person causing harm to his child because it was not known who caused the injuries and it could have been either of the parents. This was prior to any admissions made by the wife.

75. In October 2017 final apprehended domestic violence orders were granted protecting the children from their mother.

76. The Secretary, New South Wales Department of Family and Community Services initially assessed that the children should be placed under the parental responsibility of the Minister until they attain the age of 18 years.

77. In July 2018 the Secretary filed Amended Care Plans for the children. Those Care Plans recommended that the children be restored to the applicant over an 18-month period during which the Minister would retain parental responsibility for the children.

78. The children were to be gradually transitioned to the care of the applicant by the end of a 12-month period subject to minimum outcomes being met.

79. The Amended Care Plans increased the proposed level of contact between the children and the mother and provided additional details in respect of those arrangements.

80. In October 2018 in accordance with the Care Plans final orders were made in relation to the children. Those orders in summary provide for:

1. Parental responsibility for the children was ordered to be allocated to the Minister for a period of 18 months from the date of final orders;

2. Upon the expiration of the order allocating parental responsibility to the Minister the parental responsibility for the children is to be allocated to the applicant, to the exclusion of the children’s mother.

3. The children are also placed under the supervision of the Secretary to ensure that their needs are met by the applicant.

4. The applicant gave appropriately protective undertakings to the Children’s Court in respect of each of the children until they each attain the age of 18 years.

81. The applicant and the mother were originally both identified as possible perpetrators of non-accidental injury to their child. The mother’s subsequent concessions and admissions mitigates the applicant’s culpability.

82. The allegations and findings in relation to the children were serious. The applicant accepted that the child’s injuries are “very serious injuries” in his affidavit material filed in the Children’s Court.

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

83. The circumstances which led to the cancellation of the clearance occurred approximately 17 months ago.

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

84. The applicant was aged 36-37 years old when the matters in relation to the applicant’s children were raised.

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

85. The children were aged 2 years old and 8 months old respectively.

86. The children were vulnerable because of their age and dependence upon their parents for care.

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

87. The difference in age between the applicant and his children is approximately 34 years and 35 years in respect of each of the children. The applicant is the children’s father.

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

88. The applicant knew that the children were his children.

The person’s present age

89. The applicant is currently aged nearly 38 years old.

The seriousness of the person's criminal history and the conduct of the person since the matters occurred

90. The applicant has a criminal history which discloses two convictions for a minor traffic offence and a failure to obey direction of a police officer. These convictions were recorded nearly 18 years ago. There has been no more recent criminal charges or convictions.

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

91. The repetition of the behaviour by the mother which led to the removal of the applicant’s children from their parents’ care is likely to have a detrimental impact on the children. Injuries causing subdural bleeding can be lethal.

92. 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.

93. The applicant has given undertakings in the Children’s court which relate to building his parenting capacity and to comply with services to be provided for his children. The undertakings provided by the applicant should remain in force until 2034.

94. The applicant obviously failed to act protectively towards his children from their mother. It is considered that the likelihood of the applicant repeating the conduct, which was failing to act protectively towards his own children, is low. The applicant has shown insight into the developmental and medical needs of his children. It was considered by the Children’s Court that the applicant did not pose an unacceptable risk of harm to his children. This translates to support for the view that the applicant does not pose a real and appreciable risk to children. There are no lingering doubts in relation to the applicant’s innocence in relation to the injuries which were caused by the applicant’s estranged wife.

Any order of a court or tribunal that is in force in relation to the person

95. The applicant is subject to orders of the Children’s Court. That court determined that there is a realistic possibility of restoration of the children to his care and made final orders reflecting the determination. The children shall be under his parental responsibility after a period of transition.

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

96. The applicant has provided character references. A reference from the applicant’s employer stated that the applicant had shown a level of dishonesty by requesting a character reference for a “speeding fine” when his intention was to use it in other proceedings. The applicant was also dishonest with his employer in relation to his knowledge of the interim bar. The applicant has attempted to deceive persons in positions of authority. The applicant expressed remorse for deceiving his employer. The applicant says he was embarrassed tell the truth. This explanation is accepted and credible but it is acknowledged that there was deceptive conduct.

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

97. The applicant does not have recorded in relation to him any adverse information which has been provided to the New South Wales Children’s Guardian.

Any other matters that the Children’s Guardian considers necessary

98. The Children’s Guardian made submissions addressing matters the Children’s Guardian considers necessary. At the time of the cancellation of the clearance both the applicant and his wife were not considered candidates for parental responsibility.

99. The Secretary has since recorded that the mother had accepted responsibility for the child’s injuries. The applicant stated that he was not aware that the mother had caused child’s non-accidental injuries and he would not continue his relationship with her. The applicant acknowledged that he required assistance for his parenting skills and raising his two small sons on his own.

100. There is no history of previous issues about the applicant’s care of children raised in the submissions of the Children’s Guardian. The applicant was searched through the Department of Family and Community Services database (then called KiDS) and his details did not return any results. The affidavit by the caseworker in the Children’s Court proceedings in June 2018 refers to two paternal half-siblings one of whom is aged about 10 years and the other whose date of birth is unknown. No adverse comments are made by the caseworker about the care of those two children. There is no reference to any other involvement by the applicant with the child protection authorities in any of the documentation produced by Family and Community Services or through the Children’s Guardian. There is a brief reference in an interview with the applicant’s wife (at which the applicant was not present) to other children being removed from the applicant’s first wife but with whom those children now live, according to the interview notes. This does not appear to have been investigated further and there is no reference to any corroborating information from the child protection authorities. On balance, there does not appear to be any evidence of significant weight of prior issues concerning the applicant. It would be expected that if such an issue existed it would have been identified and relied upon in the voluminous material prepared in relation to the removal of the children in 2017.

101. At the time when the applicant’s Working With Children Check Clearance was cancelled, the recommendation of the Secretary, Family and Community Services was that there should be no restoration of the children to the father’s care. Subsequently it was recommended that the children be restored to the applicant because:

1. the applicant’s wife had accepted responsibility for the child’s injuries;

2. in a subsequent interview with Family and Community Services caseworkers, the applicant stated that he was not aware that the mother had caused the child’s non-accidental injury and he would not continue his relationship with her;

3. the applicant acknowledged that he would require assistance to develop his skills in parenting his two children on his own;

4. the applicant was able to acknowledge the improvement in his disabled child’s mobility and speech progress as a result of his engagement with early intervention services whilst in authorised care.

102. It can therefore be seen that the decision to cancel the applicant’s clearance was an appropriate measure at the time that it occurred. The question is whether that decision is now the correct and preferable decision.

Would a reasonable person allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the affected person was engaged in any child-related work?

103. This is a matter to be considered if the applicant is considered not to pose a real and appreciable risk to the safety of children. Due to the nature of the abuse suffered by the applicant’s child it is conceivable that a reasonable person would not allow the applicant to have direct contact with the child that was not directly supervised by another person while the applicant was engaged in child -related work.

104. The Children’s Court determined that appropriate undertakings would be accepted by the applicant in order to facilitate the restoration of his children to his care within a period of 18 months. After that period of time the Secretary, Department of Family and Community Services will supervise the placement of the children to ensure that their needs are being met following restoration to the care of their father. The Secretary will be able to assess whether the intervention of other relevant professionals or supports will be required by the father in order to ensure the restoration is successful. The Order of the Children’s Court and the undertakings which the applicant has provided pursuant to those orders do not require his contact with his children to be supervised but do require him to comply with a contact schedule developed by the professionals overseeing restoration of his children to his full-time care. It is considered that the applicant will be able to arrange supervision of the children’s contact with their mother once the children have been restored to his care.

105. A reasonable person would consider that there is evidence which mitigates the risk which previously existed. In addition, a reasonable person would know that the Children’s Court made a finding that there is no unacceptable risk in restoring the children to the applicant’s care. There is no similar conduct in the applicant’s criminal or employment history. It is therefore likely that a reasonable person would consider these matters.

106. The previous failure of the applicant to properly protect his children and his dishonesty in relation to his employer are also matters that a reasonable person would consider.

107. A reasonable person who is aware of all these factors is likely to come to a conclusion that the applicant is a suitable person to have direct contact with children and that he does not require direct supervision while engaged in any child -related work.

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

108. This is also a matter to be considered if the applicant is not considered to pose a real and appreciable risk to the safety of children. The Tribunal has considered the public interest test in a number of decisions including CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262. It was noted in that decision at [75] referring to Smith v Commissioner of Police [2014] NSWCATAD 184, that “the concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests”.

108. The applicant has worked with patients in a hospital setting. The Tribunal observes that the public interest is not a confined concept. A balancing of the public interests present in this matter is required. The protection of the public is to be given significant weight.

109. It is the Tribunal’s determination that for the reasons which have been stated earlier and having regard to the objects of the Act and section 4 of the Act and having regard to the considerations extracted from the discussion of public interest in previous decisions, and the weight to be given to the public interest, it would be in the public interest to make an order enabling the applicant to work with children in accordance with the Act.

110. There is sufficient material as referred to earlier in these reasons provided to the Tribunal which would allow a finding that it would be in the public interest to grant to the applicant a Working With Children Check Clearance.

111. A reasonable person would balance the evidence against the applicant’s failure to act protectively towards his children after their assumption into care and his level of dishonesty in his dealings with his employer about his interim bar and the reasons for a reference. The applicant has apologised for his misleading behaviour and states that he was too embarrassed tell the truth. The applicant says that he has learned from his mistakes and given personal apologies to his referees and will not repeat minute misleading behaviour.

112. It is generally in the public interest for people to pursue employment in their chosen careers if they do not pose an unacceptable risk of harm to children. The applicant submits that he has made a positive contribution to society and will continue to make a difference in people’s lives if he is permitted to work as a nurse. The applicant has been a registered nurse for more than 13 years. The applicant says that he has been effective in his job and has also been a mentor to younger students and graduate nurses. The applicant has also relieved in positions of managerial responsibility. It is in the public interest for the applicant to continue in his chosen field of endeavour.

Consideration and determination

114. The Act is designed to be protective and there are a number of matters identified in the legislation which are relevant to an assessment of risk.

115. While there is no presumption that the applicant poses a risk to the safety of children, the applicant and respondent have provided evidence referred to earlier in these reasons which ultimately satisfies the Tribunal that he does not pose a real and appreciable risk to the safety of children. The applicant wishes to return to work in order to support his children financially, socially and emotionally and to transition them back to his care. The applicant does not pose a risk to the safety of children.

116. The factors which have to be considered pursuant to section 30 (1) of the Act have been identified earlier in these reasons.

117. 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.

118. The issues for determination can clearly in all the circumstances of this matter be adequately dealt with in the absence of the parties with the benefit of written submissions and the other documents filed with the Tribunal. The very concerning level of abuse suffered by the applicant’s child and his failure to report that abuse or seek timely adequate medical attention raise issues about the capacity of the applicant to protect children. Additionally, the applicant’s ability to appropriately care for his own children, one of whom has special needs, is an issue which was also considered in the context of the Children’s Court proceedings. The resolution of those proceedings by the making of Final Orders reflects a balance of those issues with the concern that children should not be deprived of a relationship with a parent who is capable enough to care for them, or can be capable enough with some additional assistance and monitoring. The matter in the Tribunal has the benefit of those risk assessments made in the Children’s Court. A decision without an oral hearing is able to consider those issues appropriately without repeating some of the same process that was undertaken in the Children’s Court. This has enabled the cost to the parties and to the Tribunal to be proportionate to the importance and complexity of these proceedings (which are important and involve issues of great significance to the safety of children). The dispensing with a hearing under section 50 (2) of the Civil and Administrative Tribunal Act has facilitated the “just, quick and cheap resolution of the real issues” in these proceedings in accordance with the guiding principle in section 36 of the Civil and Administrative Tribunal Act.

119. The behaviour of the wife who is identified as the perpetrator of abuse, if repeated, would do significant harm to any victims especially children who might be present. The paramount principle under the Act includes protection of children from suffering abuse.

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

121. The assessment of the Tribunal, is that the applicant should receive his Working With Children Check Clearance so that he can resume his employment as a nurse or in other child related work. This is the correct and preferable decision.

Conclusion

122. It is therefore determined that the original decision should be set aside and the applicant should be granted a Working with Children Check Clearance.

Order

123. The order of the Tribunal is that:

1. The decision made to cancel the applicant’s Working With Children Check Clearance is set aside.

2. The Children’s Guardian shall forthwith reinstate a Working with Children Check Clearance to the applicant known in these proceedings as DMU.

3. 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 (NSW). Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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

Registrar

Decision last updated: 08 November 2018