DOY v Children's Guardian

[2019] NSWCATAD 150

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	DOY v Children’s Guardian [2019] NSWCATAD 150
Hearing dates:	4 February 2019, 11 March 2019
Date of orders:	31 July 2019
Decision date:	31 July 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member A Limbury, General Member
Decision:	(1)   The decision of the respondent dated 12 September 2018 to cancel the applicant’s Working With Children Check Clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- history of allegations – whether adverse inference available – whether positive findings can be made – adverse findings about risk of harm
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 CG v Commissioner for Children and Young People 2002 ADT. (unreported) Children’s Guardian v CKF [2017] NSWSC 893 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Sahrani v Hadrami (2018) Fam CAFC 170
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DOY (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: Ian Collins Solicitor (Applicant) Crown Solicitor (Respondent)
File Number(s):	2018/00289469
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

1. This applicant seeks administrative review of a decision by the respondent cancelling his Working with Children Check clearance (WWCC). The clearance was cancelled because the respondent (the Office of the Children’s Guardian) was satisfied that he posed a risk to the safety of children. The respondent formed this view after receiving information from the NSW Ombudsman on 15 September 2017 and subsequently conducting a discretionary risk assessment under section (‘s’) 15 (3) of the Child Protection (Working with Children) Act 2012 (the Act).

2. As a result of the risk assessment the respondent made a finding that the applicant posed a real and appreciable risk to the safety of children and after seeking a response for the applicant subsequently cancelled his WWCC clearance.

3. The substance of the information reported by the NSW Ombudsman concerned a notification in relation to a Disability Reportable Incident. That concerned allegations that in 2015 the applicant (as a care worker) had indecently assaulted and photographed (while naked) a 21-year-old disabled person in his care. The Ombudsman notification included all of the information that they held concerning the application (which may have been in addition to information held by the Children’s Guardian concerning his WWCC Clearance). The 2015 incident did not result in any findings or charges against the applicant however as a result of the matter the applicant resigned from that position.

4. The risk assessment (set out in some detail below) covered a history of matters relevant to assessing the applicant’s risk. In addition to the totality of the matters, we have made particular findings on a series of allegations concerning a 2009 employment based incident which were dealt with in significant detail in the two days of hearing.

5. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Act, the Tribunal finds that the applicant is presently a real and appreciable risk to the safety and well being of children and young persons. We note that the jurisdiction is protective. As a result of the finding the decision of the respondent will be affirmed and the application will be dismissed.

Background

6. The Applicant in these proceedings is referred to as "DOY". DOY is the applicant's pseudonym used in these proceedings in conformity with the order referred to in par 7 (below).

7. On 24 October 2018 an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Jurisdiction of the Tribunal

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

3 Object of Act

The object of this Act is to protect children:

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

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

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

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

9. The Notice of Cancellation issued under section 23 (1) of the Act was issued on 12 September 2018. The applicant stated in his application that he was notified of the decision on the same day. On this basis, the application for administrative review filed 21 September 2018 was lodged within the required period and as a result his application for administrative review has been received within time.

The application for administrative review

10. The grounds of the substantive application (in summary) are:

1. Conviction indecent assault 1973. As a 15 year old the applicant was homeless having run away from care and was located with another teenager ‘M’. (Female) No evidence of an indecent assault was included in the police statement but the applicant as an unrepresented 15 year old pleaded guilty.

2. ADT Appeals Division decision 4/12/2002. The Tribunal made a finding on the applicant’s risk to children and concluded that the evidence is ‘so slight that I cannot regard him as a material risk to children’. The Tribunal found that the 1973 conviction was not captured by the assessment provisions and that they were comfortably satisfied that he did not represent a risk to children.

3. Res Judicata. The applicant submitted that the 2002 Administrative Decisions Tribunal (ADT) proceedings has given binding findings that he is not a risk to children. In this context to revisit the matter (having regard to the above principle) is an error of law.

4. Matters post 2002. The applicant submitted that he had not been provided with the details of these allegations or the evidence ‘against’ him. He had only been interviewed by police on 16/11/2009.

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

12. The issue to be decided by the Tribunal is whether on the balance of probabilities the applicant poses a risk to the safety and well being of children. In reaching this position the Tribunal is required to traverse section 30(1) and (1A) of the Act and determine the correct and preferable decision. In addition reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk. Risk is determined at the time of the decision made by the Tribunal so in that regard the Tribunal is determining an applicant’s current risk.

The working with children legislative scheme

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

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

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

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

17. Other provisions of the Act deal with assessment requirements, which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur (s 15(3)).

18. Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions. The section relevantly provides:

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

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

(2) A person whose clearance is cancelled by the Children’s Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(3) A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

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

(5), (6) (Repealed)

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

(8) The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person’s employer.

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

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

(h) the seriousness of the person’s 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.

Burden of Proof

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

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

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

23. As stated above, the Tribunal is required to have regard to the matters contained in s 30(1) of the Act in deciding this issue. (See paragraph 19 above).

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

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

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

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

27. We note that ‘risk’ has now been given a statutory definition in Act at s 5Bby reference to ‘risk to safety of children’.

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

The hearing

28. The matter was heard on 4 February 2019 and 11 March 2019. The applicant was represented at hearing by a Solicitor and the respondent was represented at hearing by counsel and instructing solicitors. At the conclusion of the hearing, the Tribunal reserved its decision.

29. The applicant gave evidence at the hearing, as did the expert report writer Ms J Pratley. The colleague of the applicant in 2009 (who we will refer to as ‘A.A.’ to preserve the s-64 order), gave evidence on behalf of the respondent. In addition both parties relied upon written material.

Written Evidence

Applicant’s written material

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

1. Exhibit ‘A 1’: the application for administrative review filed 21 September 2018;

2. Exhibit ‘A 2’: the applicant’s signed statement dated 20 November 2018.

3. Exhibit ‘A 3’ Expert report by J Pratley dated 25 May 2019.

4. Exhibit ‘A 4’ personal reference from ‘T.D.’.

5. Exhibit ‘A 5’ personal reference from ‘P.C.’.

6. Exhibit ‘A 6’ personal reference from ‘N.D.’.

7. Exhibit ‘A 7’ Supplementary expert report from J Pratley dated 11 January 2019.

Respondent’s written material

31. The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings under s 31.

1. Exhibit ‘R1’: documents purs s-58 (436 folios);

2. Exhibit ‘R 2’ : further documents filed 20/11/18 (177 folios);

3. Exhibit ‘R 3’: Affidavit of ‘A.A.’ sworn 11/12/18;

4. Exhibit ‘R 4’: copy of ADT file 024030 concerning proceedings VCG v Commissioner for Children and Young People (426 folios).

5. Exhibit ‘A-5’: further documents filed 14/12/2018 (283 folios)

Brief history of relevant matters

32. The applicant has worked in the care sector for much of his working life. He grew up in a single parent environment as an only child raised by his mother. He spent two periods in institutions (Boys homes) in his late childhood / and early – mid adolescence. These placements followed interventions following offending behaviour. As an adult he initially worked in labouring positions and had longer-term employment with the Water Board prior to a back injury. In 1990 he had a career change and worked as a nanny for one family for five years and then studied nursing and worked in the disability sector from around 2001 to his resignation from his last position following a complaint investigation in 2015. It was in his transition to nursing studies and disability sector work that the previous ADT proceedings (Exhibit ‘R-4’) arise in that he needed to be removed from the prohibited persons list due to his adolescent offences in the 1970’s.

33. We understand that as his disability work predominantly or occasionally involves working with children (Child related work), then the applicant requires a WWCC clearance to continue his career in that sector.

The issues to be decided in this application

1. What findings (if any) can be made in respect of the allegations against the applicant?

2. What is the level of risk to children (having regard to any findings and evidence) if the applicant was to engage in child related work and specifically risk to children?

3. Is the applicant currently a risk to children having regard to the matters under s-30 (1) of the Act and (a) and (b) - above?

4. If the applicant is not a risk to children, 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 engaged in child related work?

5. If the applicant is not a risk to children, is it in the public interest that he be granted a clearance?

The applicant’s case

34. At the beginning of the evidence the applicant’s Solicitor made opening submissions concerning the scope of the hearing and what the Tribunal was required to consider. The applicant’s position was that the case was fairly straightforward. This was because of the positive ADT finding in December 2002, and as a result all matters prior to that time were not applicable to the evidence to be considered in this hearing.

35. The applicant also referred to the two incidents referred to in ‘A. A.’s evidence and that both matters were denied by the applicant.

Applicant’s Evidence at Hearing

36. In evidence in chief, the applicant adopted his statement (Exhibit A-2). He also gave evidence about an incident on 7 January 2015 where he was observed by police parked in his car in a cul-de-sac abutting a fire trail access point. Police had made an intelligence report about this matter. The applicant’s evidence was that there is a bushwalking trail and he participates in bushwalking and that was why he was at that location.

Applicant’s evidence under Cross Examination

37. In cross-examination the applicant was asked a series of questions about whether he had worked or qualified as an enrolled nurse. It appeared to the Tribunal that these questions arose due to apparent gaps or inconsistencies in the information he provided the expert, and concerned his duty to disclose all relevant matters in the proceedings (s 27 (3)). In our view the issue of the applicant’s status as an enrolled nurse is otherwise of no relevance to the matter the Tribunal must determine.

38. The applicant was questioned about the reference in Par [7] of his statement (Exhibit ‘A-2’) to having ‘straightened himself out’ from around 1975 onwards. In particular he acknowledged that his words in the statement ‘I have not committed or been charged with any offences from that time as an adult’, was not true. The applicant confirmed that he had been charged with drug, theft, nude bathing, assault and offensive behaviour type offences (in addition to serious traffic matters) since that time. Other matters in addition to the above summary were either dismissed or did not result in formal convictions.

39. The applicant was questioned about a serious incident in the past from 48 or 49 years prior where it was suggested that he minimised the facts to the expert when providing a history. The applicant conceded that he may have been minimising to an extent however this position was now irrelevant as the official version was in the s 58 documents which were now before the expert prior to her supplementary report.

40. The main thrust of cross-examination over each day concerned the allegations about incidents in a supported accommodation (Group Home) setting in late 2009 where the applicant was employed as a carer / disability support worker. One allegation concerned the applicant holding / pressing a teenage female ‘H’ against him whilst she was naked and being prepared for or placed in a bath. This was observed by a witness through a half open door. (The Bathroom incident). The other allegation concerned the same witness viewing the applicant (through a partially open door jam / gap) in a resident’s bedroom with his belt unbuckled and trousers half way down. The witness then heard the sound of the trousers being pulled up and the belt being buckled. The applicant and ‘H’ were not seen in the common areas of the Group Home immediately prior. However a few seconds after observing the trousers being down in the bedroom, once the witness returned to the kitchen / common area, the applicant and ‘H’ entered the common area where the witness had returned (The Bedroom incident). The bedroom incident is alleged to have occurred after the bathroom incident but on the same day.

41. These incidents (and another matter some years later) were not considered by the ADT in the previous ‘risk of harm’ proceedings as those proceedings predated the 2009 allegations. It was therefore appropriate that the hearing examined these matters in some detail.

42. The applicant confirmed that the adolescent ‘H’ was non-verbal and presented with Down Syndrome. The applicant denied that the incident in the bathroom involved pressing ‘H’ against his body whilst naked. He confirmed that ‘H’ was naked but denied having his arms linked around her middle whilst upright with her back towards him.

43. The witness ‘A.A’ had taken washing to another Group Home nearby as the washing machine was not working. When he returned he witnessed the second of the incidents in the Group Home allegedly involving the applicant. (The Bedroom incident).

44. The witness was asked about another series of allegations which arose in 2014 / 2015 when he was working in another Group Home for another employer. Those allegations involved a young adult female resident with an intellectual disability diagnosis. The allegations involved touching of the female victim at night in her bed and taking photographs of her overnight. The allegations were received via the complainant’s parents concerning the touching of her ‘private parts’ (front and back). The complainant described the perpetrator as resembling a particular character from the Harry Potter film series. On this basis the matter was investigated, but the applicant denied any involvement. The employer determined following investigation, that there was insufficient evidence to make any positive findings or proceed with the matter further.

45. In re-examination the applicant gave evidence about the necessity of workers assisting residents with bathing and dressing as required. He also gave evidence that he had no recollection as to where he was in the Group Home at various times on the evening of the allegations in 2009.

46. On the second day of the hearing (after the other witnesses gave evidence) the police ERISP of their interview with him in 2009 was tendered, and played to the Tribunal. The applicant was interviewed six days after the alleged bathroom and bedroom incidents occurred. His evidence to police was that he worked from 3:30pm that day. There were four residents in the home two males and two females including ‘H’. The home had four bedrooms. The manager was responsible for three group homes.

47. The applicant’s evidence in the interview was that ‘H’ can generally eat by herself and she might need a hand to get in and out of the bath by herself due to a risk of slipping even though there are handrails. ‘H’ can take her clothes off unaided but needs a hand dressing. The applicant in the ERISP denied the Bathroom allegation specifically denying having his hands or arms around her middle / waist. The door would ordinarily have been shut during this process due to privacy concerns for the residents (due to the undressing) but if a duty of care issue arose the carer would be present while bathing occurred.

48. The applicant’s evidence was that he could not recall exactly what occurred but that his practice would have been to assist in dressing ‘H’ in the bathroom about 20 minutes later when her bath was completed.

49. In the ERISP the applicant was asked what he did while the colleague ‘A.A.’ was out of the house attending to the washing. The applicant could not remember but said he probably would have been watching TV with the kids.

50. The applicant was also asked about the bedroom allegation (which we observe the evidence indicates was located in the resident ‘A’s’ bedroom. This allegation was completely denied by the applicant.

51. He was asked whether he had a conversation with ‘A.A.’ about the washing. The applicant said he only asked where the other house was that ‘A.A.’ took the washing. His evidence was that he logged on to the shift at the house at 3:45pm on 5 November 2009 and logged off at 8:30pm.

Evidence of Witness ‘A.A’.

52. ‘A.A.’ gave evidence at hearing and provided an affidavit in the proceedings. His written evidence included his initial Police Statement from 9 November 2009 along with annexures to that statement being hand drawn maps and floor plans of the layout of the Group Home where the two incidents are alleged to have occurred.

53. The witness adopted his affidavit (Exhibit ‘R-3’) in evidence in chief. In cross-examination he was asked how good was his recollection of 5 November 2009. He confirmed that it was impacted by the passage of almost 10 years but recalled ‘H’ and that she presented with Down Syndrome. His evidence was that ‘H’ only needed minimal assistance with bathing and dressing (buttons only). He did not recall whether she wore a bra at that time (for which she may have needed assistance).

54. The witness recalled that the applicant had his arms around ‘H’s waist. He recalled that the events occurred between 5:00 and 8:00pm while he was at the house.

55. In respect of the bedroom incident the witness confirmed that he did not see ‘H’ in the bedroom. His evidence was that what he recalled at the time is recorded three days later at [11] of his police statement and that is what he observed. That evidence being that ‘H’ was not present in any common area of the house, (or her own bedroom) and then observing the applicant in the bedroom of ‘A’ in a state of partial undress, leaving the hall and going back to the lounge room, and then the applicant and ‘H’ walking into the lounge / common room together seconds later.

56. The Tribunal asked a number of questions of the witness (s 38(1) (2) NCAT Act). The witness was asked what he saw though the door jam. He saw ‘bare thighs’ and ‘jeans around the ankles’.

57. In his affidavit (‘R-3’) and police statement the witness confirmed that he returned after about 10 minutes from putting the washing on at the other house and began checking the whereabouts of the other residents. One resident (‘A’) was in ‘H’s bedroom by themself, and two others were in the lounge room watching television. The witness could not see the applicant or the fourth resident ‘H’ anywhere. The witness walked through the lounge room and turned right into the hallway. The witness saw that one of the bedroom doors was halfway open and though the gap where the door is hinged to the frame he saw the applicant (in the manner as described elsewhere in his evidence).

58. At hearing the witness marked on the floor plan diagram where he was standing in the hallway, his line of sight to the door and where he could see the applicant inside the room behind the door.

Evidence of Expert J Pratley

59. In evidence in chief the expert was asked how she found the applicant as a historian. The evidence was that he was nervous when recounting matters and providing a history. The expert adopted both of her reports (Exhibits ‘A3’ and ‘A7’)

60. In cross-examination the expert was questioned as to what material she based her reports upon. The witness confirmed that she had not initially been provided with the affidavit of ‘A.A.’- (Exhibit ‘R.3.’) The expert spoke of the applicant’s ‘poor social boundaries’ as referred to in paragraph [58] of her report. The reference related to treatment options to improve the applicant’s workplace relations in that regard. Counsel for the respondent raised with the expert matters concerning the applicant minimising his conduct when reporting. This was evident at paragraphs [33] and [36] of the report. Minor discrepancies in his reported antecedents and other history were raised with the expert. These matters were viewed by the expert as raising questions about the applicant’s openness with her when attending the assessments. However the expert stated that the question remains the same concerning the applicant’s overall risk assessment (which was identified as low if the allegations were unproven and ‘unacceptable’ if proven), irrespective of the extent that he may have minimised in his reported history to her.

61. The expert responded to various matters put to her as being based in the applicant’s background, matters that the expert was not previously aware if or the circumstances of matters previously unknown to her. She indicated that these matters caused her to now hold concerns about the accuracy of her report.

62. In respect of the applicant’s social network the expert said that whilst the references in her report referred to one close friend, she was also referring to his family network (those who provided the referee statements) to reach that conclusion. The expert stated that in respect of the conclusions about the applicant, an individual could be quite empathetic towards others but still not be insightful themselves.

63. The expert applied a number of tests to the applicant based on the information he provided, including the Personality Assessment Index (PAI), the Static 99R actuarial risk assessment and the Risk for Sexual Violence Protocol (RSVP). The expert’s conclusion at [54] of her report was that the applicant currently possesses a moderate level of recidivism considering his risk and protective factors and a:

‘low-moderate risk of recidivism considering only the recent allegations (or low if only one is founded in truth).’

64. At the conclusion of her substantive report at [54] the expert opined that:

If (DOY) were to sexually offend again in future, based on the current allegations, he would be expected to sexually abuse a vulnerable adolescent or young woman, in the context of seeking sexual experiences and difficulties in his intimate relationships. This risk expands to children in his care if the historical allegations are considered accurate.

65. However, the overall conclusion of the expert at [58] was couched in the following terms and very much contingent on establishing the veracity of the most recent (2009 and 2015) allegations against him.

58. Assuming that (DOY) perpetrated either of the sexually abusive incidents alleged in 2009 and 2015, then it is my view that there is an unacceptable risk associated with him engaging in child-related work or indeed work with any vulnerable populations. However, if both of these allegations are unfounded, the risk in fact is greater that (DOY) may be subjected to further spurious complaints in future. …. if the Tribunal determines in the current matter that the allegations against (DOY) are unfounded, then he possesses no more risk of harm to children than the average person.

66. The expert’s supplementary report (Exhibit ‘A-7’) was prepared based on the receipt of further documents from the respondent. Concerning the 2009 allegations the expert concluded that whilst there was more documentation, it did not provide greater clarity as to what actually occurred. There was some acknowledgement it was possible that in respect of the 2015 allegations, that the applicant had exploited a highly vulnerable young person and in doing so he was aware that her account would be likely to be discredited due to her low level of functioning. The report concluded on a reiteration of the substantive report conclusions that the outcome would in essence hinge on what positive findings (if any) the Tribunal made about the post 2002 allegations.

Other evidence

67. The applicant filed a number of character references in support of his application that he was not a risk to the safety and well being of children. None of these witnesses were required for examination at hearing however the respondent submitted that the references should be given the weight that they have on the face of their record, in that the weight is low. Whilst they gave some reference to the background and circumstances of the current application, they were individual character or reference based statements predicated on a problem free history in the various authors own dealings with the applicant and for some authors, observations on his care and protection of children.

Submissions

68. Both the applicant and respondent provided written submissions and made oral submissions at the end of the receipt of evidence. The applicant focused on the ADT decision and various findings that the earlier offences do not make the applicant a risk to children.

69. The applicant submitted that the 2015 allegations concerning the assaults on the young adult resident in bed was a ‘red herring’. In respect of the 2009 allegations the applicant submitted that the witness was not in plain sight of the applicant (and queried what behaviour is actually being alleged) in each instance. In respect of each instance the witness did not seek to intervene or raise the issue with the applicant or victim. No formal police actions arose from the 2009 and 2015 allegations.

70. The applicant’s representative referred to the case of Sahrani v Hadrami (2018) Fam CAFC 170 which was referred to as a clarification of the lead case of M v M (1988) HCA 68. Reference was made to a passage from Sahrani at [39] – [40] in the reasons of Ryan and Aldridge JJ:

The question of whether there is an acceptable risk to a child still requires that there be actual evidence which at least gives rise to the conclusion that behaviour may have occurred or may occur.

71. In oral submissions the respondent submitted that the propositions in Sahrani cannot detract from the proposition in M v M. The respondent said that the earliest adverse matter when the applicant was a 12 year old boy was shocking as was the indecent assault committed when the applicant was 15 years old. The criminal offending in the following years show a disregard for the law and a lack of honesty. The applicant submitted that the totality of the evidence indicates that the applicant is prepared to lie to achieve his own ends.

72. The respondent referred to the pattern of allegations since the applicant was very young which of itself should lead any person across that material to hold significant concerns. The respondent also referred to the psychological material prepared for the previous ADT matter, whereby the forensic psychologist identified a tendency in the applicant towards exhibitionism.

73. The respondent referred to inconsistencies in the applicant’s account of the 2009 allegations and the inconsistencies in his police ERISP and evidence before the Tribunal (An example was the omission in the police interview of any evidence about taking ‘H’s hand).

Consideration

Section 30 (1) considerations

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

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

75. The applicant's application to the Tribunal is brought about by an adverse risk assessment triggered by the respondent becoming aware of allegations in 2015 concerning sexual misconduct with a 21 year old female resident of a disability respite centre. The assessment revisited earlier allegations and findings from 1970 through to 2002 and previously unknown matters arising in 2009. The majority of matters identified involve violence including sexual violence. Whilst a significant majority did not result a criminal findings, some allegations did, as well as other allegations resulting in adverse action against the applicant as a result of investigative findings.

76. When he was 12 and a half years old the applicant and another boy assaulted and robbed an elderly woman. In 1972 he was convicted of stealing. In 1973 at the age of 15 the applicant was convicted of indecent assault on a female adolescent child. The applicant’s version at the hearing differed from that given to police where he was convicted. He currently portrayed the incident as a consensual sexual activity (below age – carnal) but not involving intercourse.

77. Various property, public order and drug offences occurred from 1973 to 1977 resulting in positive findings by the criminal courts. In 1979 the applicant was convicted of assault. A series of traffic matters from 1980 – 2003 (four serious counts all dealt with at Court), resulted in findings against the applicant.

78. Further assaults in the circumstances which are now defined as domestic violence offences occurred in 1981. There is a serious history of allegations which were ventilated in Family Court proceedings. These matters arose in 1983, 1985, 1986 and 1987. Various stealing, exposure (nude sunbathing), offensive behaviour (urinating on a police car and other cars) offences occurred from 1982 – 1998. All of these matters (other than the 2003 serious traffic matter) were considered by the ADT in the 2002 proceedings.

75. In addition there are the 2009 and 2015 allegations which have been set out in some detail above and which we will return to later in these reasons.

76. In our view the assaults which were confirmed at Court are very serious. But for the applicant’s young age at the time of the 1970 matter we would class that matter as extremely serious. We note that all of the pre 2002 matters were assessed in the 2002 ADT proceedings. Whilst we have regard to that evidence and the basis of those earlier findings in our assessment, we note that there were opposing submissions on what import we might draw from those matters. We made it clear to the applicant’s representative at the beginning of the hearing that we proposed to deal with the applicant’s total history in deciding the ultimate matter of whether he currently prosed a risk to the safety and well being of children. In our view that is the correct approach to an administrative review under the Act.

77. We also noted that these proceedings are determined under different legislation to the 2002 ADT proceedings. There is fresh evidence against the applicant that not only needs to be determined in isolation, but also in contrast to his history in forming an overall picture as to the applicant’s current level of risk. In doing so, the Tribunal has a statutory obligation to have regard to all relevant matters (including matters previously determined). In making this observation we note in particular the legislative requirements under s 30 (1) (a), (b), (c ), (d), (e) and (i) of the Act which require us to have regard to all past matters.

78. However we have had particular regard to the 2009 allegations which were dealt with in significant detail at the hearing.

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

83. It is clear that the matters referred to under s 30 (1) (a) cover a lengthy period. The allegations and findings range from 1970 to 2015. The matters put against the applicant appear to have ceased approximately four years ago.

84. The most recent four year period is both offence and allegation free, however the respondent made various submissions about the applicant’s minimising of his adverse behaviour and a breach of his duty to fully disclose matters in these proceedings. We make no adverse finding against the applicant in respect of the manner in which he has conducted his application before the Tribunal.

85. However since the first matter came to attention in 1970 it is clear that the applicant has accumulated a significant criminal record concerning minor, moderate and (but for his age) serious indictable criminal matters. On this basis it would appear that his pattern of conduct (in respect of the criminal findings) has continued for some decades unabated. The workplace allegations have also accumulated over a period of time irrespective of the applicant’s ultimate culpability in such matters. We note the expert’s view about the applicant’s lack of boundary understanding and how this might contribute to the accumulation of certain allegations.

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

86. The age of the applicant when the 2009 allegations arose was 52. In respect of the 2015 allegations the applicant was 57 years old. We refer to these matters (specifically) as they were considered afresh in the risk assessment.

(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.

87. The nominated victim ‘H’ was 14 in 2009. The alleged victim in the 2015 suite of allegations was 21 years. In respect of all of the assault based matters 1970 to late 1980’s all of the victims would be considered vulnerable. The 1970 victim is described as an elderly female. The fact that she was assaulted by two male youths in circumstances of aggravation would have made her especially vulnerable.

88. In respect of the 2009 and 2015 allegations the victims were younger females, one being a child, and were both in some way disabled. The victims were in the applicant’s care and the totality of these factors show that they would have been especially vulnerable. The Victim ‘H’ was dependent on the applicant for assistance with significant needs.

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

89. Based on the age range set out (above) the difference in age between the applicant and the alleged victims was between 36 and 38 years depending on which victim and the year of the alleged offending. We have only focused on the 2009 and 2015 allegations in making our findings at s 30 (1) (c ) (d) (e) and (f). The 1970 allegations there were many decade difference in age (the victim being much older), and the 1973 matter involved similar ages of applicant and victim.

90. Both the 2009 and 2015 matters involved a pre-existing relationship of care and protection between the applicant and the alleged victim. The allegations involved persons well known to the applicant, as either their regular or occasional carer.

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

91. The applicant clearly knew that the allegations in respect of the 2009 matters concerned children.

(g) The person's present age.

92. The applicant was 61 years old at the time of the hearing. The relevance being that offending (including sexual offending) generally declines with age and significantly past middle age.

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

93. The applicant’s criminal record is significant for the purposes of the matters addressed in this application in that there are proven matters involving violence, and a pattern of offending.

94. Whilst some offences occurred whilst the applicant was himself a child, there is a consistent ongoing pattern of offending and an apparent disregard for the law. Whilst the statutory test involves risk (rather than whether the person is a fit and proper person) aspects relating to the applicant’s character and in particular his honesty are relevant factors in such a consideration. One of the proven matters would equate to a disqualifying offence for the purposes of the Act had he not successfully had his status as a prohibited person overturned in the proceedings CG v Commissioner for Children and Young People 2002 ADT. Dishonesty offences continue through the applicant’s teenage years and his twenties.

95. His conduct since the actual offences has been called into question both by the Family Court and various employers when he has been engaged in a care role. Whilst it has been 16 years since his last proven Court matter the two recent incidents call the applicant’s suitability to work with children and to some extent his character into question. Whilst the applicant completely denies any impropriety, significant questions remain when the totality of the evidence before the Tribunal is considered. At this stage it is clear that his conduct has come under adverse scrutiny in the 16 years since his last offence and he has been subject to adverse actions arising from an examination of that conduct.

96. However for completeness we note that no adverse matters have been positively identified and adjudicated upon by a criminal court since 2003.

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

97. The Applicant provided an expert report which following testing and assessment provided a risk of harm rating. However the expert qualified the findings in that if any of the more recent matters were found to have occurred that the risk would be at a raised level. The RSVP assessment indicated that the applicant’s current risk is moderate.

98. In concluding about the 2009 and 2015 allegations the expert concluded that if positively found, then there is an unacceptable risk associated with the applicant engaging in child related work or with any vulnerable populations.

99. In addition we note that if any offending behaviour was to occur in the future it is clear from the material before us that the impact on children would be significant.

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

100. There is no relevant evidence or matters to consider under this criteria.

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

101. The applicant tendered a number of character references in support, and the expert report. The applicant also provided a signed statement adopted in his oral evidence. The character references attest to a history of incident free working with children. Some of these references were from individuals in his care. Those references do not refer to any of the adverse matters put against the applicant. We have already referred to the expert evidence.

102. The applicant’s own statement elaborates on the circumstances of his teenage offending.

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

103. There is no material obtained under s 36A.

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

104. The respondent made various submissions concerning the lack of candour and incomplete disclosure of the applicant during the review process. Submissions were made about what he neglected to disclose to the expert. The respondent characterised the applicant as not being frank with the Tribunal and other persons.

The statutory approach

105. The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Like the facts in BKE, certain matters in the current case were not settled, in that the Courts had not been a position to make any positive findings on the conduct and the applicant.

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

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

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

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

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

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

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

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

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

Further Consideration

107. It is accepted that where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 at p362: see BKE (above) at [33]. That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities. Our substantive role is to assess risk, and whether specifically the applicant poses a risk to the safety and well-being of children and young people. We have based our consideration on all of the evidence given by the applicant at hearing (and in documentary form), and for this reason we have set out above some of his evidence at hearing.

Findings

108. We find that we are unable to make any positive finding as to the 2015 allegations. We note that the evidence concerned the disclosures of the victim and that for a range of reasons these could not be tested further. It may be that the significance of these matters is that the allegations were made, and they were effectively made against the applicant. This is in our view illustrative of some of the issues that the expert referred to concerning boundary issues. We note that a lack of boundary setting in a care and protection regime can create preconditions for risk of harm and abuse. A person who is unable to determine appropriate boundaries in such a setting might pose an unacceptable risk to the safety and well-being of children.

109. However specifically, we have significant concerns about the 2009 allegations in particular the ‘bedroom allegation’. However we will address the ‘bathroom allegation’ first.

110. In respect of the ‘bathroom matter’ we have carefully considered the evidence. Having regard to the nature of work and duties in a Group Home it is difficult to understand what exactly occurred, and where the boundaries might lie on appropriate physical actions of assisting a disabled person (who requires physical assistance) to bathe. On one view there may not be anything inappropriate in the nature of the actions described in the evidence. It was not clear why someone might need to be held so securely around the torso as they were assisted into the bath. There may be valid reasons. However we note that applicant specifically denied holding the resident (‘H’) in the manner described by the witness. During cross examination it appeared that the respondent did not initially possess a complete understanding of the nature of care and support duties between staff and residents in a group home setting.

111. Males caring for female residents and females caring for male residents is in no way unusual in such a setting. Depending on the care needs of the residents (fully or partially dependent) staff are required to engage in a range of duties. The staff / resident gender ratios are not specifically proscribed and often there will only be one staff member on duty, such as overnight. The evidence in the current matter was that there were two male and two female residents and on this occasion both staff members were male.

112. Toileting, bathing dressing, undressing, turning residents in their beds during the night at regular intervals and feeding residents are all common place in group homes with high care needs residents. The Group Home where the alleged conduct occurred in 2009 appears to have residents with moderate needs. The broadly uncontested evidence of the girl ‘H’s needs is illustrative of this situation.

113. We find that whilst the witness could hold concerns about what he observed, we are unable to make a finding that on the totality of that evidence there was anything inappropriate about the applicant’s conduct or actions. We simply do not know what occurred other than a description (which is rejected by the applicant). We note that the witness only observed from directly behind the persons in the bathroom. The witness was not examined as to what procedure was appropriate. Why ‘H’ was assisted in the manner alleged is unclear. We note that the applicant denies certain aspects of the allegation (that he would have ‘held her around her waist’) by presumably linking his hands. He also denied any allegation of inappropriate conduct.

108. In our view this is a relevant example of applying a child protection regime against a disability care and services regime. The reality being that if persons (young or old) require assistance with bathing or showering then they must (of necessity) be naked and physically handled in an appropriate manner to both enter and exit the bath or shower commensurate with their needs. The evidence is at best equivocal in respect of whether there was inappropriate action or at it’s highest meeting the criteria for an assault. We make this observation bearing in mind the evidence about H’s needs and the circumstances of being assisted in and out of the bath. The witness only observed the occupants of the bathroom from outside with the applicant’s back facing the witness. Based on the information about ‘H’ needing to be physically assisted into and out of the bath (a common practice in disability and aged support) it is conceivable that he would have needed to physically support ‘H’ in some significant manner. No evidence was put by the respondent as to what behaviour management or care directive policy was in place for this resident at this home.

109. However in assessing the evidence we do observe that the witness was at the time a disability worker, and so some weight must be given to his concerns. However in our view on the totality of the evidence that does not establish what occurred. Having regard to all of the evidence on this point and the applicant’s absolute denials of anything inappropriate, we therefore make no adverse findings against the applicant on the ‘bathroom allegation’ from 2009.

110. In respect of the applicant’s evidence and information generally, we do hold some concerns about the applicant’s full discharge of his obligations under s 27 (4) of the Act, but refrain from making any adverse findings about the matter. In our view it was clear from the manner in which his application was prepared and run before the Tribunal, that he believed genuinely that the pre 2002 allegations were not relevant considerations in the current matter.

111. In respect of the serious allegations concerning ‘the Bedroom allegation’, we find that we are able to make a positive finding.

112. In summary, the witness could not locate two of the residents and the applicant when he returned from putting on the washing at the other group home. The witness walked through the house and located resident ‘A’ in another resident’s bedroom by himself. Two residents were in the common area. He then heard something whilst in the hall and saw through the door jam gap the applicant with his trousers down and his bare thighs and legs inside resident ‘A’s bedroom. He then heard the sound of the trousers being pulled up and the belt being fastened. The applicant immediately returned to the kitchen and common area of the home. Just after that time the applicant and ‘H’ entered the common area at much the same time. The applicant believed that ‘H’ was in ‘A’s room with the applicant when he observed the applicant through the door jam gap.

113. The evidence of the applicant and the witness is set out in some detail above. Of particular significance is the physical evidence which was also examined in some detail at the hearing. The photographs set out at Tab 5 of Exhibit ‘R 5’ give a practical element to the evidence of the witness ‘A.A.’. Of particular relevance we note the photographs depicting the room layouts and the door gaps of the premises. At folio 214 of ‘R-5’ we note that the half open door provides a gap slightly in excess of three centimetres. The large doors have clearly been designed to facilitate access with hinges sitting proud of the door and door jam woodwork.

114. There is no evidence as to whether ‘H’ witnessed any behaviour whist in the room (if she was definitively there) or whether such behaviour was in any way directed at her. We therefore make no finding regarding what she may have witnessed. However we find that on the available evidence it was more likely than not that both persons (the applicant and ‘H’) were in that room together. Whilst there is a slight chance that ‘H’ may have been in the en suite bathroom as it was not physically inspected other than by line of sight by the witness, the uncontested evidence about the applicant and ‘H’ returning to the common area at the same time leads us to conclude that she was in that bedroom with him.

115. We reiterate that we do not make any finding on what if anything ‘H’ may have observed concerning the applicant. Merely that to the requisite standard she was in the room with the applicant. In making that finding, for the same reasons we find that the applicant was at that time present in the room as seen by the witness ‘A.A.’ There is no other plausible explanation for his whereabouts.

116. In respect of the positive identification of the applicant by the witness, we note the following:

• Whilst he did not see the applicant’s face his consistent evidence was that he could see the lower part of his body and garments.

• The evidence of the applicants absence and return to the common area, and the absence of any evidence of any other person (especially an adult male) in the house at that time leads us to conclude that he was in the room.

123. The evidence as to the width of the door gaps (as photographed by Police Forensic Services) adds to the credibility of the evidence of the witness. It is also clear that the applicant did not expect the witness to return to the house as quickly as he did. On this point both the witness and the applicant’s evidence has some consistency notwithstanding the absolute denial. In the Police ERISP the applicant confirmed that he asked his colleague where the other home was. When this evidence is taken with the witness‘s contemporaneous statement where the first conversation with the applicant (after he re-enters the common area with ‘H’) is about the other house and the washing (Police statement [12]), we observe that the applicant did not expect to see the witness so quickly. By itself this would not be a matter of any concern. But when viewed with the allegation and the fact that the witness had told the applicant that he needed to take some washing to the other house down the road, (Police Statement [10]), we find that significant weight attaches to the otherwise unusual interactions set out in the evidence.

124. On this basis we accept the evidence of the witness and find that the applicant was in the bedroom in a partial state of undress for unknown or otherwise unexplained reasons and it is more likely than not that ‘H’ was in that room at the same time as the events depicted in the witnesses’ evidence. We stress that we have no evidence that the behaviour of the applicant had any impact (adverse) on ‘H’, but in making the findings that we do we find that it significantly elevates the risk of harm to ‘H’. If a child witnessed this behaviour for which we have made findings, then in our view the risk of harm to such a person would be significant.

125. The floor plans and photographs add a level of significant credibility to ‘A.A.’s evidence, matters which he pursued through formal channels and gave evidence about in these proceedings. The physical evidence in our view adds to the evidence against the applicant. The totality of the evidence leads us to be able to make a positive finding to the requisite standard having regard to the matters and principles set out at [106] above. Unlike the bathroom allegation, there can be no disability care or support explanation for the behaviour observed though the door gap in the bedroom. The behaviour itself in such a setting is in our view unfathomable and clearly inappropriate.

126. We therefore find that we are able to make a positive finding in respect of this matter and that such a finding elevates the applicant’s risk to the safety and well being of children.

127. In our view there is no unfairness in the above finding as it was clearly open to the Tribunal to make (adverse or not adverse, or to make no finding at all). These matters were ventilated by the respondent at hearing and the Tribunal put the parties on notice that after reviewing the 2009 evidence, we would need to consider the matter further. We gave notice at the end of the hearing that the Tribunal would determine this issue especially as so much evidence had been adduced on it, and the expert’s conclusions were in part contingent on the result of any inquiry into these matters. Neither partly sought to address the Tribunal further on those issues.

128. We have also had significant regard to the second or more conservative opinion of the expert, especially in light of any finding concerning the otherwise unproven allegations.

129. In our view due to the lack of conditions that may be imposed on a clearance, these matters provide significant evidence of probable risk of harm in the future. We must have significant regard to these matters in determining whether the applicant is a risk generally to the safety and well being of children and young persons.

130. Based on a consideration of all of the evidence, we are not satisfied that the applicant does not currently pose a real and appreciable risk to children. In our view, on the evidence and material before us, and having particular regard to the history of allegations, the applicant’s own apparent deficits in understanding boundaries, and the fact that the applicant was effectively requested to cease his employment in 2009 and 2015 due to both the seriousness and pattern of the allegations, and the findings that we have made on some of the evidence, we find that the applicant poses a risk to the safety and well-being of children.

131. In making this finding we have had regard to the weight of evidence. We also note that other than the one adverse finding that we have made there is no definitive evidence concerning the applicant harming children, (other than when he himself was a child) that does not mean that there will be no basis for concluding risk per M v M. Rather, our finding is that the risk of the applicant harming children in an unsupervised context at present is in our view on the weight of evidence, real and appreciable.

132. In our view the risk is greater than that of any adult harming a child. In reference to the observation of Young J in the case of ‘V’, at [42] we are of the view that the risk is significant and therefore real and appreciable.

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

133. In consideration of real and appreciable risk based on consideration of all the circumstances we find that the applicant does pose a risk to the safety and well being of children and young persons.

134. We note that the safety, welfare and well being of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act.

Section 30 (1A) consideration and findings

135. The respondent referred to these provisions in their submissions.

136. The section provides:

(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.

137. Section 30 (1A) is only traversed if the Tribunal decides that an applicant for review (or and enabling order) is not a risk to children.

138. For completeness we would find that a reasonable person knowledgeable of all the evidence and material that we have considered in our review would not allow the applicant to have unsupervised access to children.

139. In respect of the public interest, noting the balance between the individuals occupational needs contrasted with the need to keep children safe from harm and in particular abuse, on the basis of the totality of the evidence we would make a finding that the granting of a clearance was not in the public interest.

Conclusion

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

141. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant poses a risk to the safety and wellbeing of children.

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

143. It therefore follows that the application for review should be in practice dismissed and order made that the decision of the respondent be affirmed.

Orders

1. The decision of the respondent dated 12 September 2018 to cancel the applicant’s WWCC clearance is affirmed.

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

Registrar

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

Amendments

31 July 2019 - typo corrected at paragraph 121 and 131

Decision last updated: 31 July 2019