EHN v Children's Guardian

[2020] NSWCATAD 222

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

EHN v Children’s Guardian [2020] NSWCATAD 222

Hearing dates:

31 August 2020

Date of orders:

31 August 2020

Decision date:

07 September 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C A Mulvey, Senior Member
Emeritus Professor P J Foreman AM, General Member

Decision:

(1) The decision of the Children's Guardian dated 15 September 2017 to cancel the applicants working with children check clearance is set aside.

(2) The Children's Guardian to re-instate and issue a working with children's check clearance to the applicant forthwith

Catchwords:

ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)

Child Protection (Working with Children) Act 2012 (NSW)

Child Protection (Working with Children) Regulation 2013 (NSW)

Children (Criminal Proceedings) Act 1987

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing) Procedure Act (NSW) 1999

Evidence Act 1995 (NSW)

Working with Children Act 2005 (Vic)

Cases Cited:

AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69

BJB v 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

Children’s Guardian v CFW [2016] NSWSC 1406

Children’s Guardian v CKF [2017] NSWSC 893

Children’s Guardian v CXZ [2019] NSWSC 1083

CKF v Children’s Guardian [2017] NSWCATD 6

Commission for Children and Young People v FZ [2011] NSWCA 111

Commission for Children and Young People v [2002] NSWSC 949; 56 NSWLR 476

CTM v Children’s Guardian [2016] NSWCATAD 280

CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262

DAR v Children’s Guardian [2018] NSWSC 942

Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577

McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6

M v M [1988] HCA 68; 166 CLR 69

Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449

R v Commission for Children and Young People [2002] NSWIRComm 101

R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30

Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

Smith v Commissioner of Police [2014] NSWCATAD 184

ZZ v Secretary of the Department of Justice [2013] VSC 267

Category:

Principal judgment

Parties:

EHN (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
V Hartstein (Respondent)

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2020/00133020

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. The applicant seeks administrative review of a decision of the respondent cancelling a Working with Children Check Clearance (WWCCC) granted to the applicant, in that the respondent (the Office of the Children’s Guardian) following a risk assessment, formed the view that the applicant poses a real and appreciable risk to the safety of children and young persons.

2. The applicant is referred to as "EHN". EHN is the applicant's pseudonym used in these proceedings in conformity to an order made pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013.

3. On 2 December 2013, EHN applied for a WWCCC under the Child Protection (Working with Children) Act 2012 (the Act). A WWCCC was granted to EHN on 5 December 2013. Prior to the cancellation of the WWCCC, EHN was working as a cleaner in a school on a full time basis.

4. On 18 April 2017, the respondent became aware that EHN had been convicted of “stalk/intimidate intend to cause physical harm (domestic)” and was sentenced to a good behaviour bond. An apprehended domestic violence order (ADVO) was also made to protect EHN’s wife and son in relation to domestic violence perpetrated on them by EHN. Other serious charges were also made against EHN which he pleaded guilty.

5. On 9 May 2017, the respondent informed EHN that he was subject to an interim bar and that a risk assessment was to be conducted concerning him being able to retain his WWCCC.

6. On 15 August 2017, a notice was given to EHN that the respondent proposed to cancel his WWCCC. EHN was invited to provide any submission in response. Despite material received by EHN, the respondent determined to cancel EHN’s WWCCC on 15 September 2017. The reasons for the refusal were because of the seriousness and significant impact on the victims, namely EHN’s wife and son, of the offences. The respondent was satisfied that EHN posed a real and appreciable risk to the safety of children.

7. On 4 May 2020, EHN filed an application seeking administrative review of the decision of the respondent to cancel his WWCCC. EHN relies on his evidence which explains the circumstances pertaining to each of the offences raised by the respondent in coming to a determination to cancel his WWCCC. EHN also relies upon the counselling and intervention of health professionals he has consulted in treating reactive depression with which he has been diagnosed.

8. The issue for us to determine is whether, as at the date of hearing, we can be satisfied EHN does not pose a real and appreciable risk to the safety of children if he were granted a clearance to work in child related-work.

9. After consideration of all the evidence, we decided to set aside the decision of the Children’s Guardian to cancel his WWCCC. The reasons are set out below.

Jurisdiction of the Tribunal

10. There is no dispute that we have jurisdiction to review the decision of the respondent that is the subject of this application. In reviewing that decision we must determine the correct and preferable decision having regard to the material before us and the applicable law: see s 63(1) Administrative Decisions Review Act 1997 (NSW) (ADR Act). Upon determining an application for review we may make orders that include an order to affirm the decision of the respondent, or an order to set aside the decision of the respondent and in substitution thereof make another decision (in this case an order to grant a clearance): see s 63(3) ADR Act and s 23 of the Act.

Relevant Law and Legal principles

11. The jurisdiction of the Tribunal under Part 4 of Act is protective and not punitive in nature as set out by the Court and Tribunals in: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]; R v Commission for Children and Young People [2002] NSWlRComm 101.

12. A person who has had a WWCCC cancelled may apply to the Tribunal for administrative review of the decision: s 23 of the Act -

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

…

(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.

13. The Notice refusing EHN’s WWCCC under s23 was issued on 15 September 2017. EHN’s application for administrative review was filed on 4 May 2020 which means it was not filed in accordance with s27(2). Leave was granted on 21 May 2020 for EHN to file his application out of time. The Tribunal ordered that the time for EHN to file the application be extended to 4 May 2020.

14. EHN must fully disclose to the Tribunal any matters relevant to the application; s27(4) of the Act.

15. In this administrative review, neither party bears the onus of proof. There is no presumption that EHN poses a risk to the safety of children as would be the case under s 28(7) of the Act if he was a disqualified person. See McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6. Woodward J there observed in relation to the Administrative Appeals Tribunal (at 356-357(FCR):

‘There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's.’

16. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 in which the Court stated that: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove”.

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

18. The issue for us as required by ss 14, 15 and 23 of the Act is whether EHN, on the balance of probabilities, poses a risk to the safety of children. Young CJ in Commission for Children and Young People v (2002) NSWSC 949 considered the test to be applied 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”.

19. As set out above, s 5B of the Act enshrines a definition of “risk to the safety of children” in similar terms to Young J in V.

20. The decision in BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take in assessing the question of ‘risk to the safety of children’.

21. The Supreme Court of NSW has on many occasions adopted the approach taken in M v M  [1988] HCA 68; 166 CLR 69 and BKE (see Children’s Guardian v CXZ [2019] NSWSC 1083; DAR v Children’s Guardian [2018] NSWSC 942; Children’s Guardian v CKF [2017] NSWSC 893 and Guardian v CFW [2016] NSWSC 1406).

22. It is well established that a three step approach to assessing a risk under the Act has been endorsed by the High Court in M v M requiring the Tribunal to first decide whether or not it is satisfied on the balance of probabilities that an allegation is true (and, if it is so satisfied, then it proceeds to determine the case on the basis that it is true) or, if not, whether or not it has ‘no hesitation in rejecting the allegation is groundless’ (in which case it proceeds to determine the case on the basis that the allegation is untrue), Children’s Guardian v CFW (2016) NSWSC 1406 (at [14]).

23. The third step requires the Tribunal in reaching neither of the satisfactions set out above with respect to an allegation, is still obliged to consider questions of risk that may be indicated by all the facts, CFW at [15]. All the facts include the fact that an allegation has been made and facts relevant to assessing the weight of the allegation. Even if an allegation, or set of allegations, is not proven on the balance of probabilities, if ‘a lingering doubt or suspicion remains’ then this should count against EHN, CFW at [16]. This has been taken to mean that if it is proven to an extent sufficient to give rise to a sufficiently large concern about the consequences if the allegation or set of allegations is true then a risk within the meaning of the Act will exist and the application for a clearance should be refused.

24. In Children’s Guardian v CKF (2017) NSWSC 893, Justice Davies agreed that the correct approach to risk is outlined by the High Court in M v M and the discussion referred to by Justice Beech-Jones extracted above.

25. In Office of the Children’s Guardian v CFW (2016) NSWSC 1406, Justice Harrison discussed how the Tribunal could consider events when the Tribunal had a lingering doubt or where suspicion remained. Justice Davies accepted there was a three step process and the only point of departure was whether doubt ‘counts against the defendant or is … simply a matter to be considered’.

26. The New South Wales 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.

27. We may not make an order on conditions, whether under s 27 or 28 of the Act: BJB v Children’s Guardian (No. 2) [2014] NSWCATAD 164.

28. In determining this review application, we must first have regard to the factors set out in ss 30(1) and (1A) of the Act.

29. In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered by the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267, where it was held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.

Evidence

Documents

30. EHN filed the following written material:

• Application filed 4 May 2020 (A1)

• Statutory declaration of EHN 9 June 2017 (A2)

• Bundle of references (A3)

31. The respondent filed the following written material

• Bundle 58 documents 17 June 2020 (R1)

• (Pages 40-51 and 180 of R1 were not read or relied upon)

• Bundle 58 documents 6 August 2020 (R2)

32. EHN appeared in person. The respondent was represented by Counsel. All parties appeared by audio-visual link.

33. EHN gave oral evidence and was cross-examined by the respondent’s counsel. Written submissions were relied upon by each party and supplemented with oral submissions.

The trigger offence in April 2017

34. In April 2017, EHN and his wife had been married for 25 years. They had a child who was 12 years of age. In the agreed facts which relate to the offences as set out below, EHN told police that the marriage had been struggling due to EHN’s loss of communication with his family overseas. As a result, EHN became depressed and angry.

35. A verbal altercation between EHN and his wife occurred in late March 2017. EHN’s wife and son left the matrimonial home.

36. On 16 April 2017, EHN’s wife and son returned to the house to care for their cat and because EHN’s son wanted to see his father. At about 5.00 p.m. EHN returned to the home and began consuming alcohol. He became aggressive and picked up a cricket bat pointing it at his wife and son and threatening to kill them. The events caused both EHN’s wife and son to become upset and frightened.

37. At the request of EHN the police were called by EHN’s son.

38. Upon police arriving at about 7.10 p.m. they found EHN in the bathroom. The police were let into the matrimonial home by EHN’s wife and son.

39. EHN left the bathroom and swore at police. He grabbed 3 bottles of beer and half a bottle of whisky and walked out the front door. The police followed EHN and he continued to swear and threaten police.

40. EHN’s wife and son remained in the home and locked the door.

41. Whilst sitting on a chair near the front door the police told EHN he was under arrest for a domestic violence offence and was required to attend with them to the police station. EHN refused. He picked up two 30 centimetre kitchen knives, pointing them at police and threatening them. EHN tossed the knives at police, he picked up the cricket bat and was walking around with it. The police attempted to bargain with EHN to put it down, which he did after a short time.

42. A number of other police attended EHN’s home and he also became aggressive towards them. The police warned EHN he would be sprayed with OC spray if he went any closer to them.

43. After some time EHN was taken hold of by police on the front lawn. EHN struggled with the police, who forced him to the ground and handcuffed him.

44. EHN was charged with the following offences:

‘Stalk/intimidate intend fear physical etc harm (domestic) s13(1) Crimes (Domestic & Personal Violence) Act 2007, intimidate police officer in execution of duties w/o ABH s60(1) Crimes Act 1900 x 3, resist officer in execution of duty s58 Crimes Act 1900.’

45. On 18 April 2017, EHN pleaded guilty to each of the offences and was convicted. He was sentenced and directed to enter into a good behaviour bond for 12 months pursuant to s9(1) of the Crimes (Sentencing Procedure) Act 1999.

46. An ADVO for 12 months was put in place to protect EHN’s wife and son from him.

47. On 5 September 2017, EHN successfully applied to have the ADVO conditions changed so that he could live at the matrimonial home.

Section 30 (1) considerations

48. 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.

49. Each of the offences with which EHN was charged and pleaded guilty to is inherently serious. We have taken into consideration the relatively significant mitigating circumstances identified by EHN in his evidence, which include at the time of these offences he had been diagnosed with reactive depression and was referred for psychotherapy. EHN was also commenced on medication to treat his depression and stress he was experiencing at the time of the trigger offence.

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

50. The trigger offences occurred approximately 3 years ago. Following that time EHN has sought treatment from both his general practitioner and a psychologist, which is evident in the material before us.

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

51. EHN was born on 6 November 1968 and at the time of the trigger offences was aged 48.

(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.

52. EHN’s son was 12 years of age at the time of the trigger offences. EHN’s wife was an adult.

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

53. EHN was a year or so younger than his wife and 36 years older than his son.

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

54. EHN knew that his son was a child.

(g) The person's present age.

55. EHN is now 51 years of age.

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

56. EHN has no other criminal record apart from the trigger offences.

57. We note that in 2012 there was one prior complaint of domestic violence involving EHN and his wife. He threatened to stab his wife in her sleep and kill himself, which was overheard by his son. An ADVO was taken out at that time to protect EHN’s family.

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

58. In EHN’s application, his Statutory Declaration and oral evidence it is apparent that he had been in denial about his depression for some time. As a result he was not coping well and the trigger offences were committed. Since that time he has undertaken counselling with a psychologist and also regularly consults his general practitioner.

59. EHN pleaded guilty at the first opportunity to the trigger offences. Since that time he has been remorseful and deeply apologetic for his conduct which he recognises has had a lasting effect on both his son and wife.

60. The papers reveal, as did EHN’s oral evidence, that he only consulted the psychologist referred to him by his general practitioner for 3 out of 6 appointments. EHN told us, which we accept, he could not afford to continue with treatment from his psychologist as a result of him losing his job as a fulltime cleaner in a school following the cancellation of his WWCCC.

61. EHN’s wife provided a statement and she is extremely supportive of him. The respondent did not require her for cross-examination. A number of references were also put before the Tribunal supporting EHN’s good character. Whilst those references are supportive, they do not fully set out the knowledge and understanding of each referee concerning the trigger offences. We have placed limited weight on those references for this reason.

62. Overall, having examined all of the material before us, we find on the balance of probabilities that the trigger offences are more likely than not to have been an aberration of EHN in 2017. The likelihood of repetition in our minds is low.

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

63. Not applicable.

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

64. We have taken into consideration the Statutory Declaration (A2) and the statement annexed to EHN’s application, which clearly sets out EHN admitting his fault and evidences his remorse.

65. The references from each of EHN’s supporters have been referred to above and form part of our consideration.

66. EHN provided a Certificate from Community Corrections, Newcastle, stating that he was released from the supervision of Community Corrections as at 31 May 2017.

67. These are all positive factors.

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

68. Not applicable.

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

69. Not applicable.

Evidence of EHN

70. EHN pleaded guilty to each of the trigger offences. He set out a history of not accepting that he was experiencing bouts of depression and anger at the time of the trigger offences. As a result he struggled with sleeping and became stressed and more depressed. These events led to the trigger offences which EHN does not resile from. He provided the following in relation to the effects of his behaviour:

‘… this experience has been extremely traumatic and upsetting for me, as I am terribly ashamed of the poor behaviour I have exposed upon my wife, son and the New South Wales Police who attended my place of residence at that time.

I am deeply remorseful and sorry for the events that occurred, including the pain and anxiety my family have endured because of my lack of responsibility for not seeking medical intervention for my depression prior to the incident.’

71. EHN went on to set out the medical attention he sought following the trigger offences which is summarised above.

72. In cross-examination EHN said that he had learnt some strategies to deal with depression, which included consulting healthcare professionals as needed. EHN recognised that the trigger offences occurred at a time when he had been drinking. EHN occasionally drinks on special occasions where he may have a glass of wine or similar.

73. EHN said that the experience he has lived is one which he identifies that he would not wish to put anyone else through again. He profoundly regrets the pain and anxiety he caused to his family as a result of his behaviour.

74. We accept EHN as a truthful witness. Despite being cross-examined we have no reason to doubt the genuine remorse EHN has with respect to his behaviour.

Our consideration

75. EHN pleaded guilty to the agreed statement of facts tended in the Local Court proceedings. We have found that EHN to be a reliable witness whose evidence supports a positive finding that he does not pose a real and appreciable risk to the safety of children.

76. We accept EHN’s explanation as to the surrounding circumstances concerning his denial and unwillingness to seek medical intervention concerning his depression and anger. At the time of the trigger offences EHN was clearly a man suffering from a diagnosed medical condition that, when combined with excessive consumption of alcohol, led to him making poor choices and placing his family at risk. However, despite the seriousness of his behaviour, we accept that this was an aberration and out of character, despite the earlier 2012 angry outburst.

77. We have taken into consideration the submissions of each part and the respondent’s position that the Children’s Guardian neither consents to nor opposes the application before us. In doing so, we find that EHN is not a real and appreciable risk to the safety of children.

Section 30 (1A) consideration and findings

78. Given our finding that EHN is not a real and appreciable risk to the safety of children, these provisions apply to this review.

79. 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.

80. We have considered the decision of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 which dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:

“73.   The case of CHB v Children’s Guardian[2016] NSWCATAD 214held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.”

81. We accept and have taken into consideration the evidence of EHN, his wife and supporting character references with the qualification mentioned above.

82. We have considered the conduct of EHN concerning the trigger offences. Having regard to the nature and seriousness of the trigger offences, and EHN’s conduct since those offences, including the professional psychological help he has sought, we are satisfied that in having all this information before them, we find a reasonable person would allow his or her child to have direct contact with EHN that was not directly supervised by another person while EHN was engaged in any child related work.

83. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

74.   The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations.

75.   The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police[2014] NSWCATAD 184.The Tribunal also refers to ZZ v Secretary of the Department of Justice[2013] VSC 267where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

84. We find nothing contrary to the notion of the public interest in granting a WWCCC to EHN. We find that EHN’s right to follow his ambition to be a cleaner, which may be within a school environment, is in this instance complementary and in the public interest. Such activity would not pose a risk to the safety of children.

Conclusion

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

86. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that EHN does not pose a risk to the safety and wellbeing of children.

87. It therefore follows that the application for review should be allowed and an order made that the decision of the respondent be set aside.

Orders

1. The decision of the Children's Guardian dated 15 September 2017 to cancel the applicants working with children check clearance is set aside.

2. The Children's Guardian to re-instate and issue a working with children's check clearance to the applicant forthwith

**********​​​​​​​

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

10 December 2020 - Orders 1 and 2 corrected.

Decision last updated: 10 December 2020