EKF v Children's Guardian

[2021] NSWCATAD 164

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

EKF v Children’s Guardian [2021] NSWCATAD 164

Hearing dates:

27 May 2021

Date of orders:

9 June 2021

Decision date:

09 June 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
R Royer, General Member

Decision:

(1) The decision of the Children’s Guardian made on 17 July 2020 is set aside.

(2) The Children’s Guardian is to grant EKF a Working with Children Check Clearance forthwith.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk assessment – circumstances of offence – s 27 Child Protection (Working with Children) Act 2012

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Prohibited Employment) Act 1998 (Repealed) 

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1900 (NSW)

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8

BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164

BKE v Children’s Guardian [2015] NSWSC 523

CHB v Children’s Guardian [2016] NSWCATAD 214

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

CXZ v Children’s Guardian [2020] NSWCA 338

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

EKF v Children’s Guardian [2020] NSWCATD 301

PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455

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

Smith v Commissioner of Police [2014] NSWCATAD 184

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

Category:

Principal judgment

Parties:

EKF (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
V Hartstein (Applicant)
E Graham (Respondent)

Solicitors:
Adam & Dean Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/00237467

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

1. The Applicant is a High School Teacher. On 21 January 2019, he was issued the most recent Working With Children Check Clearance (‘WWCCC’).

2. The Applicant is referred to as ‘EKF’. EKF is the Applicant’s pseudonym used in these proceedings in conformity with the order referred to in paragraph [9] below.

3. On 14 September 2009, EKF’s two sons made allegations that they were mistreated in the family home by their father (and stepmother). EKF did not become aware of these allegations until late October 2019 when the then Department of Family and Community Services arrived at his home to make enquiries.

4. On 1 November 2019, the Applicant was charged with five counts of common assault, one count of assault occasioning actual bodily harm and one count of destroy or damage property.

5. On 17 July 2020, The Children’s Guardian, having conducted a risk assessment, cancelled the Applicant’s WWCCC.

6. On 13 August 2020, EKF filed an application seeking this Tribunal to review the Respondent’s decision to cancel his WWCCC pursuant to s27 of the Child Protection (Working With Children) Act 2012 (‘the Act’).

7. Following the lodgement of the application in this Tribunal, on 28 January 2021, the Local Court dismissed all charges against EKF on the basis that there was no case to answer in respect of any of them.

8. EKF seeks the Tribunal to conduct an administrative review of the Respondent’s decision to cancel his WWCCC pursuant to s27 of the Act. It is this application that is before us for determination.

Background

9. The Tribunal has made an order under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons is restricted.

10. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature: 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.

11. At the close of evidence, the Respondent submitted that the Tribunal should find that EKF is not a risk to the safety of children. The Respondent supported EKF’s application that he be granted a WWCCC.

12. The grounds of the application are:

‘decision is not the correct decision’

13. The issue to be decided by the Tribunal is whether EKF, following a risk assessment should be granted a WWCCC.

14. In reaching this position the Tribunal is required to consider the factors set out in ss 30(1) and (1A) of the Act and to determine whether he poses a risk to the safety and well-being of children. We are also mindful that the risk must be both realandappreciable.

The working with children legislative scheme

15. The object of the Act is to protect children, by preventing disqualified persons, or persons without clearances, from engaging 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.

16. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act: s 4 of the Act.

17. 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.

18. 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.

19. Section 23 of the Act constrains the Children’s Guardian from allowing a WWCCC to remain in place if, following a risk assessment the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

23 Cancellation of clearances

…

(1) The Children's Guardian must cancel the working with children check clearance of a person if the Children's Guardian becomes aware that the person is a disqualified person or the Children's Guardian is satisfied that the person poses a risk to the safety of children.

…

20. To determine whether a person is a risk to the safety of children, the Respondent must carry out a risk assessment if it becomes aware that EKF is subject to a risk assessment (see section 15 of the Act).

21. As the Respondent became aware of the charges against EKF in the Local Court of New South Wales, and following the undertaking of a risk assessment under s 15 of the Act, EKF’s WWCCC was cancelled under s 23 of the Act.

Jurisdiction

22. Part 4 of the Act deals with reviews and appeals. Section 27 of the Act enlivens the Tribunal’s jurisdiction to review a decision made by the Respondent cancelling a person with a WWCCC. Relevant to these proceedings the section 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. 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.

6. 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. 

7. A "stay order" is an order under section 60 of the Administrative Decisions Review Act 1997 that stays or otherwise affects the operation of a decision that is subject to review by the Tribunal under this section.

8. This section does not otherwise affect the operation of Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 .

[Emphasis added]

23. As a preliminary finding we note that the Children’s Guardian has cancelled EKF’s WWCCC and the conditions of section 27(2) are satisfied.

24. Based on this finding and noting that the application was received within time, there is no dispute that the Tribunal has jurisdiction to hear the matter.

25. Section 30 of the Act sets out the factors that the Tribunal must consider in assessing risk and determining a review application. We have addressed each of the matters under ss 30(1) and (1A) below.

Assessment of ‘risk’

26. 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". ...'

27. These observations of Young CJ (in Equity) have 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.

28. Most recently, the New South Wales Court of Appeal in CXZ v Children’s Guardian [2020] NSWCA 338 has affirmed the decision of Beech-Jones J in BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33] concerning the method to be used in assessing risk.

29. The Court of Appeal in CXZ describes the assessment of risk as being a single process, instead of what was incorrectly described previously as, a mandatory three-step process (see CXZ at [55]). Simpson JA, describes that process in CXZ at [57], as:

“…The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well-founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.”

30. Where there are multiple considerations, the Tribunal is to evaluate the accumulated weight of the allegations in terms of risk. This will include consideration of factors including the seriousness of the allegations, the strength of any evidentiary support, and the relevance of the conduct to the risk to the safety of children.

31. When determining an application for administrative review, s 63 of the Administrative Decisions Review Act 1997 is apposite:

1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: 

   (a)   any relevant factual material, 

   (b)   any applicable written or unwritten law.

The Hearing

32. The hearing took place in person. Each of the parties filed written evidence. EKF was cross-examined as was Dr Seidler, clinical and forensic psychologist who provided a report in support of EKF’s application. Counsel for EKF and the Respondent made concluding oral submissions. The Respondent supported EKF’s application that he be granted a WWCCC.

Written evidence

33. Each party filed written evidence as follows:

EKF

• Application filed 14 August 2021 – (A1)

• Affidavit EKF 24 December 2021 – (A2)

• Affidavit Witness A - 24 December 2021 – (A3)

• Affidavit of Witness B - 24 December 2021 – (A4)

• Affidavit Witness C – 24 December 2021 (A5)

• Character reference Witness D – 20 December 20 – (A6)

• Character reference Witness E (undated) Affidavit of Witness B – filed 24 December 2021 – (A7)

• Character Reference Witness F – 24 December 2020 – (A8)

• Witness G – (A9)

• Character Reference Witness H – 28 January 2021 – (A10)

• Transcript of Judgement – 28 January 21 – (A11)

• Report Dr Seidel – 1 April 2021 – (A12)

Respondent

• Section 58 documents filed 12 October 2020 and 19 February 2021 - (R1)

• Further documents filed 19 May 2021 - (R2)

EKF’s evidence

34. EKF at the time of the hearing was 41 years of age. He lives in a suburb in Sydney and is a teacher in a high school. He has been employed as a school teacher since 2003. EKF supplements his teaching by acting as both a tutor and presenter in his field, which he has done since 2003 and until November 2019. At the date of hearing EKF, remained employed as a teacher, although he has been on leave without pay pending the result of this application. EKF’s employer has continued to retain him to undertake policy and curriculum activities during the period in which he has not been working in the classroom as a teacher.

35. EKF has also been involved as a volunteer with his stepdaughter’s AFL club. However, since the criminal charges and the cancellation of his WWCCC he has not been able to continue with these activities.

36. EKF married his first wife in 2002. EKF and his first wife had two children of their union, Child A and Child B. At the date of hearing Child A was aged 17 years and Child B, 15 years.

37. EKF’s first wife died in an accident in April 2010. Following the death of their mother, Child A and Child B moved into their mother’s parents’ home for approximately a year and returned to live in the matrimonial home with EKF.

38. EKF remarried in May 2011. EKF’s second wife had two daughters from a former marriage. Together EKF and his wife had two more children. Up until November 2019, EKF and his wife and their six children lived together in the matrimonial home.

39. Child A and Child B over a number of years spent time with their maternal family on weekends and school holidays with the consent of EKF.

The Allegations

40. EKF sets out that in September 2019 Child A and Child B made allegations that they were mistreated in the family home by EKF and their stepmother. Following intervention by the then Department of Families and Community Services, Child A and Child B were removed by the Department and placed with their maternal family. None of the remaining four children were removed from the household and they remained living with both EKF and his second wife.

41. EKF said that he consented to orders made by the Children’s Court for Child A and Child B to remain in the parental responsibility of their maternal family. Indeed, it was the wishes of both Child A and Child B that they lived under such an arrangement.

42. The evidence reveals that on 1 November 2019, EKF was charged with offences relating to alleged incidents involving Child A and Child B (who were 15 and 13 respectively at the time the allegations were made). EKF was charged with the following offences on that date:

1. One count of ‘assault domestic violence related’ between 9.00 a.m. on 2 August 2019 and 8.00 p.m. on 3 August 2019 at [deleted] in relation to Child A pursuant to s61 of the Crimes Act 1900 (‘sequence 1’).

2. One count of ‘assault occasioning actual bodily harm domestic violence related’ between 9.00 a.m. on 2 August 2019 and 10.00 p.m. on 3 August 2019 at [deleted] in relation to Child A pursuant to s59(1) of the Crimes Act 1900 (‘sequence 2’).

3. One count of ‘common assault domestic violence related’ between 9.00 p.m. and 10.00 p.m. on 2 October 2019 at [deleted] in relation to Child A pursuant to s61 of the Crimes Act 1900 (‘sequence 3’).

4. One count of ‘common assault domestic violence related’ between 5.00 p.m. and 8.00 p.m. on 2 October 2019 at [deleted] in relation to Child B pursuant to s61 of the Crimes Act 1900 (‘sequence 4’).

On 18 December 2019, the Applicant was charged with further offences:

5. One count of ‘common assault domestic violence related’ between 4.00 p.m. on 24 October 2018 and 11.00 p.m. on 26 October 2018 at [deleted] in relation to Child A pursuant to s61 of the Crimes Act 1900 (‘sequence 5’).

6. One count of ‘common assault domestic violence related’ between 9.00 a.m. on 2 August 2019 and 10.00 p.m. on 3 August 2019 in relation to Child A (‘sequence 6’).

7. Between 1 January 2015 and 1 October 2019, destroy or damage property (domestic violence) alleging the Applicant ripped a diary belonging to Child A (‘sequence 7’).

43. EKF was cross-examined in relation to the alleged offences and the circumstances relating to the charges. Those offences related to allegations that EKF hit Child A several times in the face, slapped and punched him for taking too long to order and collect food at McDonald’s. Allegations were made that when Child A fell to the floor, EKF kicked and spat on him and in his food. Similar allegations were made in relation to EKF hitting, slapping, punching and spitting in food and hitting both with a belt and causing injury to the neck and body of Child B. Some of the allegations also included EKF kneeing Child B in the ribs for bringing EKF an incorrect food order and threatening to hit Child A with a wooden spoon, threatening him with a knife and cutting his finger off after he was suspended for fighting at school. EKF denied each and every allegation put to him by Counsel for the Respondent. Despite a robust cross-examination, we accept EKF to be a truthful witness and his denials in relation to each of the allegations put to him and those which relate to sequences 1 through to 7 of the criminal charges which were ultimately dismissed.

43. The cross-examination did not reveal any matter which in our view would count against EKF. He presented as, and we accept him to be a reliable witness.

44. In assessing all of the events and circumstances, we are not satisfied by reason of the possibility that the alleged conduct occurred, and we find that EKF is not a risk to the safety of children.

Section 30 (1) considerations

46. Section 30 of the Act sets out the following mandatory factors that the Tribunal must consider in determining an application. In this matter, the facts are not disputed.

(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.

47. The allegations which were made against EKF related to serious matters of alleged violent offences against his two sons Child A and Child B. Following a hearing in the Local Court of New South Wales those charges were dismissed.

48. The learned Magistrate which disposed of the criminal matters in the Local Court of New South Wales was scathing in terms of the reliability of both Child A and Child B’s evidence. Likewise, a witness called by the Prosecution, an uncle of Child A and Child B was described by the learned Magistrate in the following way: ‘I thought him to be a most unimpressive witness. His complaint evidence to my mind was significantly lacking. … he appeared to me to be a man who is self-absorbed with his own interests in life, particularly his studies …’.

49. In relation to sequence 1, due to the unreliability of Child A, the learned Magistrate was not satisfied that this sequence could ever reach beyond reasonable doubt standard.

50. In relation to sequence 2, there were significant inconsistencies between Child A and Child B’s evidence and the description of the event. The Magistrate was not satisfied that this charge was anywhere near the requisite standard to prove an offence occurred.

51. The Magistrate made similar findings in relation to each of the other sequences of which we have not specifically set out in these reasons, however, for the purposes of this application, we accept the findings made by the learned Magistrate as particularly persuasive.

52. Ultimately, the Magistrate made the following findings: ‘That being the case, I find there is no prima facie case in relation to all sequences and I dismiss them.’ The Apprehended Domestic Violence Order which was in place was also withdrawn and dismissed at that hearing.

53. The learned Magistrate was in the best position to fully assess the quality and reliability of witnesses in relation to the criminal charges which we have considered and place particular weight. Given the evidence of EKF referred to above, the findings of the Magistrate and the opinion of Dr Seidler, such that EKF presents no risk to the safety of children over and above that of any adult, we find there is no evidence to support a positive finding that the circumstances alleged to found the criminal charges occurred.

54. We also find for similar reasons that there is no evidence to support that EKF subjected Child A or Child B, or indeed any other child, to any general abuse and neglect. The character references that have been filed in support of EKF’s application and the evidence of his stepdaughters and second wife all support our finding in this regard and are matters to which we have given significant weight.

55. We have considered the oral and documentary evidence before us. We have formed our view having considered this material and find, on the balance of probabilities, that EKF does not pose a risk to the safety of children.

56. We have also considered and placed considerable weight on the change in view of the Respondent after the close of evidence, such that the Respondent supports the Applicant being granted a WWCCC. Whilst this view is not binding on the Tribunal, it is a factor that weighs heavily in favour of granting EKF’s application.

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

57. The various allegations concerning EKF relate back to approximately 2010 following the death of his first wife. We note that since EKF became aware of the allegations he has maintained a denial of each and every matter with which he was charged. He has given sworn evidence both in these proceedings and in the Local Court maintaining those denials which factor highly in our determination.

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

58. The Applicant is now 41 years of age. The matters alleged to have occurred concerning him abusing his children commenced in 2010 when he was approximately 31 years of age.

(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.

59. The victims of the offences were his children who at the time of this hearing were 15 and 17 respectively. At the time of the allegations, the children were in EKF’s care. Child A suffers from a disability that makes him especially vulnerable.

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

60. The difference in age between EKF and his children are 26 to 28 years.

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

61. EKF was aware of his children’s ages.

(g) The person's present age.

62. EKF’s current age is 41 years.

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

63. As set out in (a) above, the allegations against EKF were serious. He denied each and every one of the allegations that were raised against him and there are no other reported offences to be considered since the matters were dismissed before the Local Court of New South Wales.

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

64. EKF denies the allegations that were made against him. He relies upon a report of Dr Katie Seidler (Exhibit A12). Dr Seidler was cross-examined by Counsel for the Respondent. Dr Seidler, following an assessment of EKF, found that there were no matters identified which exposed any relevant risk to the safety of children concerning EKF, nor a need for treatment or intervention in any domain.

65. Dr Seidler found that EKF had a personality with narcissistic tendencies and grandiosity. The cross-examination explored whether these characteristics could manifest in EKF downplaying any negative effects of himself and possibly lead to denying the criminal matters with which he was charged. Dr Seidler agreed that they could. However, she found no evidence that these characteristics in any way led to a finding that he was a risk to children. She said that EKF’s personality does not exclude him from abusing someone, but he does not present with any risk factors which are usually seen in abuse matters such as antisocial behaviour and anger management issues.

66. We accept Dr Seidler as a reliable expert witness. Her conclusion, after taking into account all of the information available to her, and following cross-examination, is that there is no evidence that EKF experiences disturbance in any domain of his functioning and certainly not in any area which she would expect if he was a violent and abusive parent. Dr Seidler’s opinion was not disturbed despite the cross-examination.

67. Given our findings in this regard and having taken into consideration the glowing evidence of the character referees and EKF’s second wife and stepdaughters, we find, on the balance of probabilities, it is highly unlikely that there is any risk of EKF being violent or abusive to children in the future.

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

68. Not applicable.

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

69. We have taken into consideration the two Affidavits affirmed by EKF denying each and every allegation made by his two sons. We accept the uncontested evidence that EKF is a well-respected secondary teacher who has also been the sports coordinator at one school and head of department. We accept EKF has been tutoring in the evenings and there has been no complaint about his conduct. He is involved in his stepdaughters’ AFL teams and he is involved in mentoring children at youth camps and at a high achievers forum. In all of this work, there is no evidence demonstrating any complaint about his conduct.

70. We have considered the Affidavits filed by the Applicant’s second wife and stepdaughters which contain matters in support of the Tribunal granting EKF’s application. The Respondent did not challenge their evidence which we accept and attribute considerable weight in finding in favour of EKF’s application.

71. Likewise, the character references relied upon by EKF all support a positive finding concerning EKF’s application.

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

72. Not applicable.

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

73. The Children’s Guardian supports the Tribunal finding that EKF does not pose a risk to the safety of children and should be granted a WWCCC. We have given this considerable weight. It is unusual for the Children’s Guardian to support an application after she has cancelled a person’s WWCCC. To support the Tribunal making an order that EKF is granted a WWCCC, weighs in his favour when we conduct a risk assessment under s 30 of the Act.

Our findings

74. We are satisfied that EKF has demonstrated that he is not a real and appreciable risk to the safety of children.

75. After reviewing all of the evidence, and considering the safety, welfare and well-being of children and, in particular, protecting them from child abuse, we are satisfied that EKF should be granted a WWCCC.

Section 30 (1A) consideration and findings

76. We are also required to consider s 30(1A) of the Act.

77. We find that a reasonable person knowing all the facts and circumstances would allow his or her child to have direct contact with EKF whilst unsupervised by another person.

78. We also find that it is in the public interest for EKF to pursue his career as an educator should he wish to do so.

Orders

1. The decision of the Children’s Guardian made on 17 July 2020 is set aside.

2. The Children’s Guardian is to grant EKF a Working with Children Check Clearance 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 June 2021 - Paragraph [33] - Witnesses anonymised

Decision last updated: 10 June 2021