Elj v The Children's Guardian - [2021] NSWCATAD 51

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: ELJ v The Children’s Guardian [2021] NSWCATAD 51
Hearing dates: 8 February 2021
Date of orders: 8 February 2021
Decision date: 08 February 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Starke, Senior Member and E Hayes, General Member
Decision:
(1) The decision of the Children’s Guardian dated 26 August 2020 to refuse to grant the applicant a working with children check clearance is set aside.
(2) Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of his conviction on 11 March 1996 for Sexual Penetration by Lineal Relative (3 counts) contrary to s 329(7) of the Criminal Code 1913 (WA).
(3) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children’s Guardian is to grant the applicant a working with children check clearance.

Catchwords:
ADMINISTRATIVE LAW - Working with children check clearance — Application for enabling order under s 28 of the Child Protection (Working with Children) Act 2012

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation (NSW) 2013
Crimes Act 1913 (WA)
Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
CHB v Children’s Guardian [2016] NSWCATAD 214
Commission for Children and Young People v V [2002] NSWSC 949
CXZ v Children’s Guardian [2020] NSWCA 338
CYY v Children’s Guardian (No. 2) [2017] NSWCATAD 262
DCY v Children’s Guardian [2019] NSWCATD 274
Smith v Commissioner of Police [2014] NSWCATAD 184
The Commissioner for Children and Young People v IK [2005] NSWSC 1136
ZZ v Secretary, Department of Justice [2013] VSC 267

Category: Principal judgment
Parties: ELJ (Applicant)
Office of the Children’s Guardian (Respondent)
Representation:
Counsel:
R J Pietriche (Respondent)
Solicitors:
Jessica Allan, Legal Aid NSW (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2020/00277559
Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited, pursuant to the order made on 29 September 2020 under section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

The applicant seeks an administrative review of the decision of the respondent made on 26 August 2020 to not grant a working with children check (“WWCC”) clearance to him on the grounds that he is a disqualified person under s 18(1) of the Child Protection (Working with Children) Act 2012 (“the Act”).
The applicant is a disqualified person, having been convicted on 11 March 1996 in the District Court of Western Australia on three counts of “sexual penetration by lineal relative”, being a criminal offence under s 329(7) of the Criminal Code 1913 (WA) (“WA Criminal Code”) and an offence specified in Schedule 2.1(1)(z) of the Act by virtue of Schedule 2.1(1)(j) of that Act. In relation to the three offences, the District Court imposed a financial penalty totalling $1,000.
The applicant seeks an enabling order pursuant to s 28(1) of the Act, declaring that he is not to be treated as a disqualified person for the purposes of that Act in respect of his 1996 convictions and an order under s 28(6) of the Act that he be granted a WWCC clearance by the respondent.
If granted, an enabling order is not made subject to conditions (refer to s 28(8) of the Act) and the applicant will be granted a WWCC clearance to work in “child-related work” as defined in s 6 of the Act.
The applicant seeks a clearance in order to secure work in Aboriginal health which involves providing healthcare services to socially and economically disadvantaged Aboriginal communities in remote and regional areas of the country.
In written submissions made prior to the hearing and in closing oral submissions at the hearing, the respondent neither supported nor opposed the orders sought by the applicant and made submissions to assist the Tribunal in determining ELJ’s application.
Due to the sensitive nature of these proceedings, an order was made on 29 September 2020 under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”) that with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. To give effect to this order, the pseudonym ‘ELJ’ has been used for the applicant’s name, and geographic locations (other than references to New South Wales and Western Australia) have not been disclosed to protect against identification of any person named in these proceedings.

Issue for determination

The issue to be determined is whether the applicant poses a risk to the safety of children. In the case of an application under s 28(1) of the Act for an enabling order, the Tribunal is to presume that, unless the applicant proves to the contrary, he does pose such a risk: s 28(7) of the Act. The applicant therefore has the burden in these proceedings to establish on the balance of probabilities that he does not pose a risk to the safety of children.

Evidence before the Tribunal

In determining this matter, the Tribunal has taken into consideration the following:

Written material filed on behalf of the applicant

Application for administrative review filed on 23 September 2020 to which is attached the letter dated 26 August 2020 from the respondent advising that it did not grant a WWCC clearance to the applicant (marked “Exhibit A1”);
Applicant’s Evidence filed on 24 December 2020 (marked “Exhibit A2”) comprising the following documents and numbered pages 1 to 39:

Affidavit of the applicant deposed on 17 December 2020 (Tab 1 in Exhibit A2);

Psychological Assessment Report dated 9 December 2020 of Katie Martens, Forensic Psychologist, together with Ms. Martens’ appended Curriculum Vitae (Tab 2 in Exhibit A2);

Letter of instruction dated 17 November 2020 from the applicant’s solicitor to Ms. Martens requesting the preparation of an expert report proposed to be used in these proceedings (Tab 3 in Exhibit A2);

Email dated 20 November 2020 from the applicant’s solicitor to LSC Psychology attaching further material filed on behalf of the Children’s Guardian to be provided to Ms Martens for the purpose of the preparation of her expert report (Tab 4 in Exhibit A2);

File note dated 2 October 2020 made by the solicitor for the respondent of her telephone call with the HR representative of an Aboriginal medical services clinic in Western Australia about the applicant’s prior employment with that clinic (Tab 5 in Exhibit A2);

Email dated 16 October 2020 from the Corporate Service Manager of an Aboriginal health services clinic in Western Australia to the solicitor for the respondent advising details of the applicant’s prior employment with that clinic (Tab 6 in Exhibit A2);

Email dated 8 October 2020 from the Chief Executive Officer of an Aboriginal medical services clinic in New South Wales in response to a request from the Children’s Guardian for information about the applicant’s employment with that clinic, together with an annexed copy of a letter dated 11 June 2019 from the CEO of that Aboriginal Medical Centre to the applicant (Tab 7 in Exhibit A2).

Submissions dated 1 February 2021 filed on behalf of the applicant on 2 February 2021 (marked “Exhibit A3”).

Written material filed on behalf of the applicant

Documents (First Bundle) filed on behalf of the respondent on 25 September 2020 (marked “Exhibit R1”);
Documents (Second Bundle) filed on behalf of the respondent on 13 November 2020 (marked “Exhibit R2”);
Documents (Third Bundle) filed on behalf of the respondent on 24 November 2020 (marked “Exhibit R3”);
Submissions dated 25 January 2021 filed on behalf of the respondent on 25 January 2021 (marked “Exhibit R4”).

Oral evidence

The oral evidence given by the applicant during the hearing on 8 February 2021.

Oral submissions

Closing oral submissions made on behalf of the respondent on the day of hearing.
Closing oral submissions made on behalf of the applicant on the day of hearing.

Background

ELJ is a 50-year-old Aboriginal man, born in Western Australia and placed into the care of his adoptive parents when he was between four and six months old. He was legally adopted by his parents when he was two years old. The applicant considers his adoptive parents to be his mother and father whom he calls ‘Mum’ and ‘Dad’.
ELJ initially lived with his adoptive parents in Perth and then grew up in a small town in Western Australia with his younger adopted sister where he completed his final year of school in 1985. According to paragraph 9 of the applicant’s affidavit, his adoptive parents separated in the year before his final year of school.
In August 1993, the applicant was living in New South Wales with his adoptive mother and adopted sister when he was contacted by his biological mother (“PAY”). PAY had enlisted the assistance of an adoption agency which assists natural parents and children to be put back in touch with each other. PAY instigated the contact with the applicant and wanted to meet him.
The applicant’s adoptive father was living in Western Australia at the time and, as the applicant already had plans to visit his father, he decided to travel via PAY’s home in Western Australia in November 1993 so that he could meet his biological mother for the first time. The applicant was then 23 years old.
The first count of the disqualifying offences occurred sometime between 1 December 1993 and 31 January 1994. At ELJ’s sentencing hearing on 11 March 1996, the Prosecution’s Counsel described the circumstances of the disqualifying offence (de-identified as to the geographic location of the offence) in the following terms:

During this time the prisoner was living with the complainant in [location deleted]. On the particular night in question the prisoner and his mother were drinking beer outside. It began to rain and they went into the house. Whilst his mother was showering, the prisoner entered the bathroom and when his mother went to cover up the prisoner said words to the effect of, “Don’t worry about that. I have seen my other mum lots of times.”
After his mother had showered, the prisoner showered and said he was ready for bed. When his mother came into his room to kiss him goodnight the prisoner asked his mother to stay and lie with him for a while because he wanted a cuddle. The prisoner then asked to hold her and to feel his (sic) breasts with his hands. The prisoner then indicated that he wanted to have sexual intercourse with the complainant saying that if she did not allow him to have sex with her he would leave and she would never see him again.
The prisoner then had sexual intercourse with the complainant knowing that she was his lineal relative. (p. 58 of Exhibit R2)

The second and third counts of the disqualifying offences were similarly described by the Prosecution’s Counsel:

[As to the second count] The prisoner requested that the complainant have sex with him, and since the complainant did not wish the prisoner to become upset or violent again she complied with this request. The third and final count on the indictment relates to a further act of sexual intercourse between the prisoner and the complainant some 3 weeks or a month prior to him being interviewed by police concerning this matter.
The act occurred at [location deleted] and, as with the two preceding counts, the prisoner had sexual intercourse with the complainant on that occasion know that she was his lineal relative, in fact, his mother. (p. 59 of Exhibit R2)

The original complaint against the applicant included a charge under s 325 of the WA Criminal Code for sexual penetration without consent. However, that charge was ultimately amended to a charge under s 329 for intercourse with a lineal relative (pp. 34-35 of Exhibit R2).
The applicant was arrested and charged by Police in November 1995 (p. 33 of Exhibit R2). Paragraph 21 of the applicant’s affidavit states that, at the time he was charged, he was living with his adoptive father in a small town in WA. He had obtained permanent employment with a hospital and was also volunteering with the fire and rescue service (p. 61 of Exhibit R2). The applicant’s account of where he was when the Police first spoke with him about the offences is at odds with PAY’s statement and is also inconsistent with information contained in the statement of Police. This will be dealt with under the heading “Consideration” in these Reasons.
PAY provided a witness statement to police in relation to the disqualifying offences (pp. 38-49 of Exhibit R2). In paragraph 2 on page 40 of Exhibit R2 she admitted to having relationship problems with her then husband and that her marriage wasn’t working well when the applicant arrived to stay with them. Her statement contained allegations:

that ELJ and PAY were in an ongoing relationship until November 1995 during which time there were more than the three instances of sexual intercourse with which ELJ was convicted (p. 48 of Exhibit R2);

that the first instance of sexual intercourse occurred in December 1993 some time before Christmas after both PAY and ELJ had been drinking beer for a while. PAY alleged that ELJ asked his mother to let him cuddle up to her, then to feel her breasts and have sexual intercourse. PAY alleged that ELJ said that if she didn’t have sex with him then he “couldn’t stay” and that his mother “would never see him again”. PAY said that she felt guilty about having the applicant adopted out (p. 41 of Exhibit R2) and that she thought ELJ took advantage of that guilt. PAY stated (p. 43 of Exhibit R2) that she “desperately did not want him to leave” because “she had only just found him” so she “gave in” to ELJ’s request for sexual intercourse;

that after the first instance of sexual intercourse, she told ELJ that it was wrong and he agreed, however she alleged that he demanded sex from her on a regular basis and she “complied”, sometimes just to “keep the peace” (p. 44 of Exhibit R2);

that ELJ became abusive and threatened that if she ever told anyone about the sex, she would go to jail. PAY alleged that during the course of their relationship, ELJ was emotionally and physically threatening to her and that she found it easier to “give in” to his requests for sex out of fear that he would “become enraged and smash my house and hurt me” (p. 45 of Exhibit R2). PAY’s statement asserts that on one occasion in May 1994, the police were called to her residence because ELJ was “dragging [her] down the street by [her] hair, kicking [her]” (p. 45 of Exhibit R2). PAY alleged that she always felt “trapped and guilty” and blamed herself for ELJ’s problems;

that because ELJ threatened to harm himself, PAY and her family, she stayed with him (pp. 43-44 of Exhibit R2). She alleged that ELJ made threats such as that “it wouldn’t take much” to have his mother’s partner and his other “bumped off” (p. 44 of Exhibit R2);

that on one occasion, ELJ and PAY were involved in an argument after PAY stayed behind at work which caused ELJ to become enraged, to physically drag PAY to her bed and attempt to “rape” her, and to hit her on the chest with a clenched fist (p. 46 of Exhibit R2).

The applicant’s oral testimony in the proceedings before this Tribunal was that PAY instigated the sexual conduct, contradicting PAY’s allegations.
When interviewed by Police, the applicant admitted to his sexual offending with PAY (pp. 51-52 of Exhibit R2).
The applicant entered guilty pleas to all three offences, the first alleged by PAY to have occurred between December 1993 and January 1994, the second in March 1995 and the third between October and November 1995 (p. 35 of Exhibit R2).
Although the applicant accepts that he voluntarily pled guilty to all three offences in proceedings before the District Court in 1996, he said in his affidavit (paragraph 21, Tab 1, Exhibit A2) that he cannot explain why he pled guilty to two offences alleged to have occurred in 1995. He said that despite pleading guilty to those 1995 offences, he did not see PAY in 1995 and they did not have sex in 1995 (paragraph 20, Tab 1, Exhibit A2. He said that after 1994 he never saw PAY again and has had no further contact with her (paragraph 19, Tab 1, Exhibit A2). His oral evidence in these proceedings was that there were three occasions on which he and PAY engaged in consensual intercourse and that this occurred in the period between December 1993 and January 1994.
The applicant was convicted on each count by the District Court on 11 March 1996 (p. 1 of Exhibit R1 and p. 35 of Exhibit R2).
The District Court imposed a financial penalty totalling $1,000 for the offences (p. 1 of Exhibit R1 and p. 70 of Exhibit R2).
After the convictions, the applicant worked in Aboriginal health in Western Australia from August 2001 until May 2006 and again from October 2009 to January 2018. He moved to New South Wales to take up another position in Aboriginal health in 2018. It was during the last position that his WWCC clearance from Western Australia expired, requiring him to apply for a new clearance from the Children’s Guardian in New South Wales. The applicant stated that he recently had a job offer which he has been unable to take up without the working with children check clearance (paragraph 71 of A2).
Upon learning that his application for clearance had been refused on the grounds that he is a disqualified person, the applicant stated in paragraph 56 of his affidavit (Tab 1, Exhibit A2) that he was confused because he had previously held a clearance in Western Australia. The applicant was also “extremely embarrassed” by the offences, and was in shock when they were brought up after almost 25 years since his conviction.
According to paragraph 60 of his affidavit (Tab 1, Exhibit A2), the applicant’s deep embarrassment about the disqualifying offences was the cause of his failure to disclose the truth of the nature of the relationship with PAY to his solicitor and the Children’s Guardian. He gave instructions that the offence involved a cousin. In his affidavit, the applicant said that he knew it was untrue when he gave that version to his solicitor, but that he was “just so embarrassed by the truth” that he couldn’t tell him what really happened.
Likewise, in a telephone conversation with a solicitor acting for the Children’s Guardian, the applicant was too embarrassed to admit to the true nature of the offences, so he said that the relationship was with a “different family member” (paragraph 64 of affidavit, Tab 1, Exhibit A2).
Once the applicant received documents from the Children’s Guardian’s solicitor detailing the offences, he telephoned the solicitor and explained that he had lied. Paragraph 65 of his affidavit (Tab 1, Exhibit A2) states that the applicant was “just too ashamed to admit the truth of what [he] had done”.
After having his application for a clearance refused, the applicant lost his job with an Aboriginal medical service. As a result of losing his job, the applicant and his family vacated the house that had been provided as part of his salary package. The applicant, his wife and his children had no option but to move in with his adoptive mother.

The applicant recently acquired a job working minimal hours in a grocery store but is not in a financial position to secure a rental property for himself and his family.
The applicant said in his affidavit that he has never told his wife or family the truth about the disqualifying offences and why he was refused a clearance. In his own words: “I am too embarrassed and scared it will destroy my family”.
As noted in the introduction to these Reasons, the applicant hopes to return to Aboriginal health work which requires a WWCC clearance, necessitating his application for the orders sought in these proceedings.

Applicable legislation

Jurisdiction of the Tribunal

The Tribunal must determine the “correct and preferable” decision with regard to the material before it, including material that may not have been before the respondent, and the applicable law: s.63(1) of the Administrative Decisions Review Act 1997 (NSW). The Tribunal may affirm, vary, set aside or make a decision in substitution for the decision under review.
The safety, welfare and well-being of children and, in particular, protecting them from child abuse is the overriding consideration under s 4 of the Act and the jurisdiction of the Tribunal under s 28 of the Act therefore remains protective and not punitive in nature. The object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to children: CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 at [26]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 at [34].
The protective jurisdiction of the Act is plainly evident from its stated object as set out in s 3:

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.

The paramount consideration in the operation of the Act is set out in s 4:

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.

“Children” is defined in s 5(1) of the Act to mean “persons under the age of 18 years”.
The meaning of “risk to the safety of children” is defined in s 5B of the Act to mean a “real and appreciable risk to the safety of children.” In considering this critical aspect of the meaning of “risk”, guidance is provided by Young EJ in Eq in the case of Commission for Children and Young People v V [2002] NSWSC 949 at [42] (as cited with approval in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [26]:

“…what one is looking for is whether, in all of 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 children. One, however, must link the word ‘risk’ with the words that follow, namely, “to the safety of children”.”

The Tribunal must consider whether a clearance, if granted, will create a “real and not fanciful” risk to the safety of children: CXZ v Children’s Guardian [2020] NSWCA 338 at [26].

The meaning of “child-related work”

Section 8(1) of the Act prohibits a person from engaging in child-related work unless the person holds a WWCC clearance or there is a current application by the person to the Children’s Guardian for the relevant clearance.
The meaning of “child-related work” is set out in s 6 of the Act. Section 6(3A) of the Act provides that the regulations to the Act may provide for circumstances in which direct contact by a worker with a child or children is taken to be a usual part of and more than incidental to a worker’s work. Work in Aboriginal health includes contact with children, and work in connection with “children’s health services” as defined in s 6(2)(c) is declared to be child-related work: s 6(2) of the Act.
Clause 6 of the Child Protection (Working with Children) Regulation (NSW) 2013 (“Regulation”) relating to children’s health services defines “health practitioner” and “health service” as follows:

health practitioner
means—
(a) a registered health practitioner within the meaning of the Health Practitioner Regulation National Law (NSW), and
(b) any other individual who provides a health service.
health service
includes the following—
(a) medical, hospital and nursing and midwifery services,
(b) dental services,
(c) mental health services,
(d) pharmaceutical services,
(e) ambulance services,
(f) community health services,
(g) health education services,
(h) welfare services necessary to implement any services referred to in paragraphs (a)–(g),
(i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices,
(j) Chinese medicine, chiropractic, occupational therapy, optometry, physiotherapy, podiatry and psychology services,
(k) optical dispensing, dietician, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services,
(l) services provided in other alternative health care fields.

Clearly then, under the Act and Regulation, the applicant requires a WWCC clearance in order to work in Aboriginal health.

The meaning of “disqualified person”

Section 18(1) of the Act provides that the Children’s Guardian must not grant a working with children check clearance to a “disqualified person”.
A “disqualified person” is a person who has been convicted of an offence specified in Schedule 2 of the Act.
A conviction for the offence of sexual penetration of a lineal relative under s 329(7) of the WA Criminal Code 1913, is a disqualifying offence specified in Schedule 2.1(1)(z) of the Act by virtue of Schedule 2.1(1)(j).

Review and appeals relating to working with children check clearances

Part 4 of the Act deals with reviews and appeals. In particular, s 28(1) provides that a disqualified person may apply to the Tribunal for an order that the person is not to be treated as disqualified with respect to the offence specified in the order (“an enabling order”). Under s 28(6) of the Act, if the Tribunal makes an enabling order, it may order the Children’s Guardian to grant the person a clearance.

Statutory presumption: Applicant bears onus to disprove risk to safety of children

Section 28(7) of the Act provides that “in proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children”. As already noted, the applicant has the burden in these proceedings to rebut the statutory presumption that he poses a risk to the safety of children
In determining whether the applicant has displaced the presumption that he poses a real and appreciable risk to the safety of children, the Tribunal is required to consider “the totality of the evidence”: BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 at [28] citing The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the “cumulative effect” of the matters before the Tribunal: CYY v Children’s Guardian (No. 2) [2017] NSWCATAD 262 at [69]-[71].

Enabling order is made without conditions attaching to the order

Section 28(8) of the Act provides that an enabling order cannot be made subject to conditions.

Mandatory criteria for determining an application

In determining an application, the Tribunal must consider the matters set out in subsections 30(1)(a)-(k) of the Act:

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.

Two-part test to be satisfied before an enabling order can be made

If, having considered the matters set out in s 30(1)(a) to (k), the Tribunal considers that the applicant does not pose a risk to the safety of children, it cannot make an enabling order unless it is satisfied that the applicant meets the two-part test set out in s 30(1A) of the Act:

(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.

First limb of the two-part test known as the “reasonable person” test

The first limb of the two-part test is known as the “reasonable person” test. It requires the application of an objective standard based upon the views of the “reasonable person”. It assumes that the “reasonable person” is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children’s Guardian [2016] NSWCATAD 214 at [127]; CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 at [26].

Second limb of the two-part test known as the “public interest” test

The second limb of the two-part test is referred to as the “public interest” test. It must be considered in the context of s 4 of the Act, namely that 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: CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 at [74].
When assessing the public interest, priority should be given to the broader interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 at [75]. At the same time, the Tribunal ought to also have some regard to the rehabilitation of offenders: ZZ v Secretary, Department of Justice [2013] VSC 267 at [202] and take into consideration the right of a person to engage in work and in community affairs and to have contact with children where they possess the appropriate skills and experience: CYY (No 2) v Children’s Guardian [2017] NSWCATAD 262 at [75].
If the Tribunal is not satisfied that the applicant has met either of the first or second limbs in the two-part test, then it must refuse to make an enabling order.

Mandatory matters to be considered in determining the application

In determining this application, the Tribunal “must consider” those matters specified in s 30(1)(a)-(k) of the Act. The evidence will be considered under each of the mandatory criteria headings.

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: s 30(1)(a)

The offences which caused the applicant to be a disqualified person are serious offences, carrying a maximum sentence of three years’ imprisonment at the time of the applicant’s sentencing. However, the sentencing judge, Williams DCJ, determined it appropriate to impose fines of $500, $250 and $250 respectively for the three counts (p.67 of Exhibit R2). No custodial sentence was imposed. The applicant’s biological mother had also been charged with similar offences and requested that a gaol term not be imposed on her son as she considered it would be inappropriate and perhaps worsen the applicant’s ability to cope with what had already happened (p.62 of Exhibit R2).
The circumstances of how the disqualifying offences arose were unique in that two adults who had only just met and did not have the usual relationship of a mother and son, engaged in sexual intercourse. The applicant’s written evidence was that he didn’t look at PAY as being his mother (paragraph 16, Tab 1, Exhibit A2). The applicant’s counsel described the type of offence as a “victimless crime” between two consenting adults in the privacy of their own home and “a crime against public morals” (p. 62 of Exhibit R2). The sentencing judge, Williams DCJ, similarly described the offence as “an offence against morality” (p. 67 of Exhibit R2).
Ms Martens’ psychological assessment report described the offence as “not inherently abusive in nature” and said that while the disqualifying offence was sexual in nature, it did not represent “sexual abuse” (paragraph 49, Tab 2 of A2). She noted that the applicant was not charged or convicted of sexual assault, and that his offences related to “seemingly consenting sexual acts between two adults who were related.”
No finding was made that the applicant was violent towards PAY or that the offences were carried out without PAY’s consent.
The Tribunal is satisfied that the seriousness of the disqualifying offences is not heightened by any suggestion that PAY did not consent, despite PAY’s allegations that she was fearful of the applicant’s violence if she did not “give in”. The Tribunal notes that PAY was similarly charged with two counts of consent to penetration by a lineal relative pursuant to s 329(8) of the Criminal Code (WA).
As previously noted, the applicant said in his oral evidence that his mother instigated the sexual conduct. This contradicts PAY’s allegation.
The Tribunal cannot discard the notion that PAY’s statement may have been given by her with the prospect of her own prosecution for the same conduct in her mind and accordingly the Tribunal regards PAY’s statement with some caution.

Inconsistencies in the evidence before the Tribunal

There are a number of inconsistencies in the evidence before the Tribunal concerning the conduct of the parties with respect to the disqualifying offences:

the number of occasions on which ELJ and PAY engaged in sexual relations;

who instigated the sexual conduct;

the length of the relationship between ELJ and PAY;

the allegations that ELJ was violent, threatening and abusive towards PAY;

the location where ELJ asserts he was first interviewed by Police over the offences.

Contrary to PAY’s allegations and contrary to information contained in the statement of Detective Parker about the location where he spoke with ELJ (p. 50 of Exhibit R2), the applicant’s evidence is that:

there had been three occasions of offending (and not multiple occasions), all of them between December 1993 and January 1994;

PAY instigated the offending conduct (and not ELJ);

his relationship with PAY did not extend to November 1995;

he was “never violent towards” PAY and that he “never threatened her” (paragraph 23, Tab 1, Exhibit A2);

his first interview with the Police occurred in a remote town in Western Australia where he was living with his adoptive father, and not in the location where PAY was living in November 1995. In his oral evidence, the applicant testified to this on at least four occasions.

Relying on the analysis in CXZ v Children’s Guardian [2020] NSWCA 338 at [51], “very many cases” will not lend themselves to definitive factual determination. These proceedings involve allegations that fall into this category. Where an allegation is neither “well founded” nor “groundless”, this Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations, the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ at [53].
The applicant has a self-acknowledged history of not telling the truth as previously discussed under the heading “Background”. His explanation for this is that he was too ashamed and embarrassed by his conduct to admit the full truth about his offences. He acknowledged in his affidavit that he had not been truthful when providing instructions to a solicitor advising him in relation to the Children’s Guardian’s decision to refuse his clearance (paragraph 60, Tab 1, Exhibit A2). He acknowledged also that he had not admitted the truth of the offences to a solicitor acting for the Children’s Guardian (paragraph 64, Tab 1, Exhibit A2). In both instances, the applicant stated that he had been too embarrassed by the truth. The applicant said in his affidavit that, after initially lying to the Children’s Guardian’s solicitor, he telephoned the solicitor and explained that he had lied, having been too ashamed to admit the truth of what he had done (paragraph 65, Tab 1, Exhibit A2). The applicant’s instructions to his solicitor representing him in these proceedings, that there was only one isolated incident of offending as submitted in paragraph 17 of Exhibit A3, was later overturned by the applicant’s oral evidence that there were three instances of offending.
In the applicant’s favour, against his prior background of lying about the full truth of the offences, he presented before the Tribunal as a man who wanted to tell the truth. His oral testimony was clear and unambiguous.
During cross-examination the applicant stated at least twice that he had tried to “bury” the memory of his offending conduct, to “get it out of [his] life”. That, together with the shame and embarrassment he felt about his conduct and the shock of the incidents themselves, may account for the applicant’s poor memory of the details of his conversation with the Police about the offences (although his memory of the location is very clear).

Applicant’s evidence contradicting the allegations

The applicant flatly denied that he had been in a sexual relationship with PAY beyond January 1994. He also denied that the second and third instances of offending occurred in the location as alleged by PAY. His recollection was that the first instance occurred in PAY’s home in December 1993 (“the first location”) and that the second instance occurred in Perth (“the second location”) after he had assisted PAY to move there with her young son in January 1994. His affidavit evidence (paragraphs 18 and 19, Tab 1, Exhibit A2) and oral testimony at the hearing are consistent, that he left PAY after spending a couple of weeks with her in Perth and then went to live with his adoptive father in a small town in remote Western Australia (“the third location”). His oral evidence was that he secured a job at a hospital in the third location in 1994. He denied that he had ever been to the location which is a suburb of Perth (“the fourth location”) as alleged by PAY in her statement. This directly contradicts PAY’s statement in which she asserted that as at the date of her statement to Police, 13 November 1995, the applicant was still living with her in the fourth location.

The applicant’s oral evidence was that the Western Australian Police had interviewed him in the third location where he had just started working in a hospital at the same time that he was living with his adoptive father. In cross-examination he recalled that it had been a while after he was living with his father that the Police came to see him. He appeared definite in his belief that he had not been interviewed by Police in the town where PAY was living (the fourth location) as alleged in her statement (pp. 38 and 44 of Exhibit R2) and as set out in the statement of the Detective Senior Constable Parker (p.50 of Exhibit R2). Under cross-examination, the applicant was adamant that he had never been in the fourth location where PAY asserted that she had sex with him “on a regular basis”.
Otherwise, the applicant’s recollection of his conversation with the Police is poor and his oral evidence is that he could not remember what was said other than that he understood he was required to go to court in Perth. He recalled the distress he felt in having to disclose the matter to his father, and that he had to “front the court” which was 3,000 kilometres away.
In response to the Tribunal Member’s questions to the applicant as to why PAY had gone to the Police a long time after January 1994 and whether PAY’s husband may have found out about the offending conduct, the applicant said that he thought PAY’s statement may have been motivated by her desire to obtain custody of her young son from her husband, a matter that caused her considerable emotional distress. The applicant said that a day or two after arriving in Perth, PAY’s husband arrived to take the child away from her. He said that he thought PAY had said bad things against him to help get her child back. He added that he thought this way because PAY had told him about the background of her giving him up for adoption and she wanted to keep her young child.
In response to a question under cross-examination as to whether the applicant was on good terms with PAY when she left from Perth, the applicant said PAY was emotional because her husband had taken her child. He said he did remember, and did not want to lie, that PAY wanted him to help her drive to the fourth location but he didn’t want to “hang around” any more and he left to go up to his father. The applicant said that PAY knew, before he left New South Wales, that he just wanted to meet her and that he was not staying. PAY knew that the applicant had planned to go to his father (in the third location) where he subsequently obtained work.

Assessment of allegations and weight attributed to them

As already noted, PAY was similarly charged with two counts of the offending conduct. As a result, the Tribunal cannot discard the possibility that PAY’s statement may have been motivated by her apprehension that she would be charged in relation to the offences and a desire to promote herself as the ‘victim’. There is also the possibility that she was seeking to deflect attention away from her part in the offending conduct for the purpose of obtaining custody of her child. It is not altogether implausible that PAY sought to defend her conduct by making the allegations that she gave in to the applicant’s demands for sex because of his threatening and violent behaviour, anticipating that she too would face charges and that this may cause a problem for her seeking custody of her young son. Accordingly, the Tribunal regards PAY’s claims with some caution.
The Tribunal is not in a position to test PAY’s statement or the details concerning the address at which the applicant was interviewed as set out in the Police statement. Also, the Tribunal does not have access to the applicant’s recorded interview with Police detectives.
Even approaching PAY’s statement with caution, and accepting the applicant’s demeanour as being that of a truthful and reliable witness, in weighing up the evidence the Tribunal is not in a position to definitively determine some factual inconsistencies. This includes determining the location where the applicant first spoke with Police about the offences, whether the applicant’s relationship with PAY extended into 1995 and who instigated the conduct on each occasion of offending. While it is possible for there to be a correlation between the length of the relationship and the number of times that PAY alleges the parties had sexual intercourse, the Tribunal accepts the objective evidence available from the police reports and the applicant’s oral testimony that the offences occurred on three occasions.
With respect to the issues of who instigated the conduct and the location of the first Police interview with the applicant, the Tribunal considers that those matters do not bear heavily on an assessment of risk as to whether the applicant poses to the safety of children. Accordingly, those aspects have been given minimal weight by the Tribunal in the overall assessment of risk that the applicant poses to the safety of children.
However, in assessing the applicant’s risk profile, it is necessary to consider PAY’s serious allegations that the applicant was violent, manipulative and abusive.
No corroborating evidence of PAY’s allegations was provided to the District Court or this Tribunal.
No police reports or any witness accounts were produced in evidence before the District Court to substantiate PAY’s allegation that the applicant had dragged her down the street by her hair, kicking her (p.45 of Exhibit R2).
In addition to there being no corroborative evidence, PAY’s allegations were not tested in the District Court proceedings and could not be tested in these proceedings.
Accordingly, treating PAY’s statement with caution for the reasons already explained and having regard to the demeanour of the applicant when giving evidence, as well as the substance of his oral evidence, the Tribunal gives minimal weight to the untested and uncorroborated allegations in PAY’s statement about threats of violence and physical harm by the applicant. On the balance of probabilities with respect to those allegations, the Tribunal considers that the applicant is not a violent person and was not violent towards PAY as alleged, and does not pose a risk to the safety of children.

The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b)

The disqualifying offences were alleged to have occurred between December 1993 and November 1995. This is more than 27 years ago with respect to the first qualifying offence and more than 25 years ago with respect to the second and third offence (although ELJ disputes that the second and third offences occurred in 1995).
Since the disqualifying offences, there are no other convictions or reports on the applicant’s criminal record.
Additionally, in the applicant’s favour:

he has held several roles as a healthcare worker, primarily in the field of Aboriginal health;

he holds a Certificate IV, Diploma and Advance Diploma in Primary and Holistic Healthcare, and has worked in Aboriginal health for the past 20 years (paragraph 70 of affidavit);

he is held in high regard by the communities in which he has worked such that he has been contacted by community members who have asked that he go back to help deal with the youth suicide problem they are facing (paragraph 27 of affidavit);

he has received job offers since losing his job when he was refused a WWCC clearance (paragraph 67 of affidavit);

there was only one complaint against the applicant by his employer regarding ELJ’s use of a mobile phone while driving (pp. 37-39 of Exhibit A2), There is no suggestion that there were children in the car and this is regarded by the Tribunal as a matter of minimal relevance to the assessment of risk necessary to be made in the determination of this matter;

he has been in a long-term relationship with his wife without any period of separation for more than 22 years, which he described in a positive light to Ms Martens, and has four children from the marriage (paragraph 34 of Tab 2, Exhibit A2).

Reports of domestic violence involving the applicant

There are, however, two reports of domestic violence incidents concerning the applicant and his wife since the disqualifying offences which led to police reports being prepared.
The first report relates to an alleged incident on 26 September 2009 (p. 28 of Exhibit R2). Police attended the premises of the applicant and his partner at her request. According to the report, both parties were intoxicated. The report states that the attending officers saw some broken furniture and a cut to the applicant’s knuckle, suggestive of the applicant having punched through a door. There was no evidence of injury to the applicant’s wife and although their four children all under the age of 10 were present, the report noted there were no welfare concerns. The applicant was required to stay at an alternative address for 72 hours.
No offence was established arising from this alleged incident and a risk assessment based on the National Standard Risk assessment format was made about the likelihood of further acts of violence and degree of risk to the victim/s as being:

Likelihood – ‘Unlikely’;

Consequence – ‘Insignificant’;

Risk Analysis Matrix – ‘Low Risk’.

The second report relates to an alleged incident on 12 December 2010 (p. 26 of Exhibit R2) when police were called to the premises of the applicant and his partner who were engaged in a verbal argument over damage to their joint owned vehicle. There is no suggestion that the applicant or his partner damaged the vehicle. The police report noted that alcohol was involved and that the couple’s four children were listed in the report, however there is no suggestion in the report that the children were at any risk.
No action was taken against the applicant or his partner as a result of the report. There is an inconsistency in the report in that the time of the incident is noted in the header section of the report as “19:00” (being 7pm) whereas the body of the report states that the argument occurred from “9pm to 10pm”, however this is not regarded as significant.
Neither of the above instances resulted in criminal charges or convictions being recorded against ELJ’s name. The first incident occurred more than 11 years ago and the second occurred more than 10 years ago.
The incidents do, however, evidence violent behaviour and alcohol abuse which may give rise to a concern that the applicant could pose a risk to the safety of children. In the applicant’s favour, he demonstrated in his oral evidence that he does not condone children being exposed to violence or alcohol abuse. He has insight into the detrimental effect of such exposure upon children and has provided respite care to other children from families or kin whose children were exposed to those negative influences.
Ms Martens’ assessment of the applicant with respect to substance abuse does not advance a strong opinion either way about the applicant’s alcohol consumption. Her report notes that, at least according to the applicant, he engages in occasional alcohol consisting of “a few on a Friday”. Ms Martens noted the two police reports suggesting alcohol fueled disagreements between the applicant and his wife, however her report notes that he denied that his alcohol use “has ever resulted in problems for him or consisted of regular or daily consumption” (p. 13, Tab 1, Exhibit A2). Other than the police reports relating to the domestic violence incidents, there is no other evidence before the Tribunal that the applicant abuses alcohol such that it puts him at a greater risk to the safety of children.

Applicant’s inability to recall the domestic disturbance incidents

The Tribunal notes the inability of the applicant to recall the two instances of domestic disturbance and violence which led to police reports being prepared (paragraph 52 of the affidavit and his oral evidence). The applicant had no recollection whatsoever of the two incidents alleged. His lack of memory about the incidents appeared to be genuine. His oral testimony was that he had asked his wife about the incidents and she also had no recollection of the incidents. Indeed, the applicant had no recollection of ever having lived at the address where the first instance is alleged to have occurred, as cited in the Police report (p. 28 of Exhibit R2).
It was submitted on behalf of the respondent that the applicant’s inability to recall these two instances may weigh against the grant of an enabling order. In noting various inconsistencies between the applicant’s account and the information contained in documents provided by the Children’s Guardian, Ms Martens thought it was possible that the applicant had a different recollection of past events or that he may have been motivated to minimise the events for the purpose of her assessment. However, Ms Martens’ view is that: “This does not impact upon the assessment of risk”.
These proceedings fall into the category of cases previously mentioned where they do not lend themselves to definitive factual determination since the applicant’s evidence entirely contradicts the information in the police reports about two domestic violence incidents.
In assessing the allegations and the overall risk that the applicant may pose to the safety of children, the Tribunal considers that the allegations are not groundless. As to the seriousness of the allegations with respect to both incidents, no offences were established, no criminal charges or convictions were recorded against the applicant and no welfare concerns were raised about their children. As to the existence of any supporting evidentiary material, none was provided to the Tribunal. The documentation concerning both incidents is limited and the risk assessment conducted by Police after the first incident about the likelihood of further incidents was that it was “unlikely”, the consequence was “insignificant” and the risk was “low”. In the applicant’s favour, he has a clear appreciation that it is problematic for children to be subjected to violence and alcohol abuse, and gave evidence of his personal experience in providing respite in his home for children who have been exposed to those elements. In assessing whether the conduct of the applicant justifies a finding that he poses a risk to the safety of children, the Tribunal finds on the balance of probabilities that it does not.

Incident involving the applicant’s daughter

There is a third incident involving the applicant’s wife who was charged with beating their 12-year-old daughter on 21 December 2017 (pp. 9-12 of Exhibit R2) during an attempt to retrieve the daughter after she had been abducted by her boyfriend’s family or kin. The daughter’s injuries were observed to include bruising to her neck, face and upper arm (p. 9 of Exhibit R2)
The circumstances surrounding the incident are disclosed in paragraphs 32 to 50 of the applicant’s affidavit (Tab 1, Exhibit A2). The applicant deposed that:

his then 12-year-old daughter was taken to a remote Aboriginal community approximately 350 km away from the applicant’s home by her boyfriend’s family without the knowledge or permission of the applicant or his partner;

upon waking and realising that their daughter was missing, the applicant and his partner went into a panic. His partner rushed down to ask the Police for help. The applicant received a call from his daughter, saying that the Aunties of the boy she was dating had picked her up at 5am or 6am that morning and taken her away for Christmas. She was in a location around 350 km away and had been taken without the knowledge or permission of the applicant or his partner;

the applicant’s partner went again to the Police asking for help but they were told it was a family matter. The applicant and his partner immediately left their house and drove around 5 hours to reach her. When they arrived, late that night, the adults at the house had been drinking and threatened to shoot the applicant and his family with a gun and threatened to bash them;

the applicant and his partner were scared for their safety;

the applicant tried to get his daughter into the car, but she dropped to the ground and refused to leave. The applicant’s partner tried to get the daughter in the car, and hit her on the back of the legs with a stick in an attempt to get her into the vehicle and get to safety.

The applicant’s memory of events leading to the incident and the incident itself is much clearer than his memory of the earlier domestic violence reports, possibly because it was relatively recent, in 2017, and because it involved his daughter. The applicant’s oral testimony gave further context to the heightened emotions at the time of the assault.
The applicant and his family were planning to move to NSW, to give their children insight into a different State and an education outside the remote regions of Western Australia. The time to leave was getting close and their daughter’s bedroom had been packed up, leaving only a mattress in the room. The applicant and his wife could not find her when they woke up and went to a girlfriend’s house to look for her and went to the Police for help. They received a phone call from the daughter saying she had left with her boyfriend to go to an Aunty’s place. The applicant demanded that she be returned but the Aunty would not come to the phone. They told the Police about their 12-year-old daughter and that they planned to go and retrieve her. The Police said that it was a family matter, and cautioned the applicant to be careful because the roads were slippery.
Arriving around midnight, the applicant saw the boyfriend’s family on the veranda and observed that there had been some drinking, after seeing “all the cans”. The applicant had never met the boyfriend’s people. He said that an argument ensued between his wife and Aunty who said to their daughter “don’t go”. The applicant went back to the adults because of the argument between his wife and Aunty and told his wife to get their daughter. The boyfriend’s family threatened them, the boyfriend was described as “getting wild” and the gravity of the situation was escalating. Both the applicant and his wife tried to get their daughter into the car but she dropped to the ground and refused to get up. He said that his wife took a stick and hit the daughter on the legs to get her off the ground and into the car. The applicant’s oral evidence was that his wife “hit” their daughter “but did not beat” her. He swore that his wife did not bash their daughter. They then took off, and arrived home at around 4.00am.
In circumstances where the perpetrators of the abduction were intoxicated, the applicant was threatened with being shot or bashed, his daughter was being encouraged by the boyfriend’s family to resist her family and was hysterical, the applicant said he was afraid for his safety and the safety of his wife and children. His oral testimony painted a picture of urgency and a sense of panic. There was no mobile phone reception in the remote location to call for help.
The eye-witness’ account (p.9 of Exhibit R2) used the word “stick” to describe the incident. This is at odds with the record of the event in the Police report that the applicant’s wife had said that she had broken a branch off a tree and started beating her daughter. Without the opportunity to sight the statement of the applicant’s wife and cross-examine her on her account of what occurred, the Tribunal is not in a position where it can test the semantics of the words “beat” and “hit”, or “stick” and “branch”, and the usage of either of those terms by the applicant’s wife or the eye-witness. The Tribunal is not in a position to test whether the applicant’s wife confined her use of a stick to the daughter’s legs or whether she struck her daughter elsewhere on her body. The daughter’s statement to police has not been provided to the Tribunal and, likewise, cannot be tested.

The applicant’s account of the bruising on his daughter was that she had got into a physical fight with her older sister in the back seat of the car on the way back home. His daughters were pulling each other’s hair and he thought it would stop but instead it heated up over several minutes. The applicant had to pull over to the side of the road and stop the fighting between them. It is possible that the bruising sustained by the daughter to her face had resulted from the physical fight in the vehicle.
The police report noted that a witness called police that night to say that the mother was flogging her daughter with a stick, that the beating was severe, and that the daughter was covered in bruises (p. 9, Exhibit R2). The following morning police attended the home of the applicant and the daughter had visible bruising to her neck, face and upper arm. The daughter said she had gone to her boyfriend’s place, and that her mum had followed her and flogged her with a stick, punched her to the face and dragged her by her hair (p. 9, Exhibit R2).
The witness’ account (p. 9 of Exhibit R2) alleged that the applicant and his wife were “very intoxicated”. This particular allegation is not plausible since the applicant and his wife had driven around 350 kilometres for nearly five hours to reach the destination, and is therefore afforded no weight. On the other hand, the applicant’s observation that the family who had abducted her daughter had been drinking is more likely to be a true assertion.
It was submitted on behalf of the respondent that the applicant’s account of the incident in his affidavit minimised the physical abuse as witnessed and reported to police and that this could heighten the risk that ELJ may pose to the safety of children.
The allegations of violence by the applicant’s wife towards her daughter also fall into an area where the Tribunal is not affirmatively satisfied that the conduct occurred as alleged, but is not able to dismiss the allegations as groundless. The incident was serious, involving an assault upon a 12-year-old girl with either a stick or the branch of a tree by the applicant’s wife. No allegations were made against the applicant. The issue to consider is whether the applicant has played down or minimised the incident involving violent behaviour towards a child and whether that demonstrates an inability to assess risk with respect to the safety of children. The main area of contention is that the applicant denies that his wife beat his daughter with a tree branch and punched her face.
There is an inconsistency between the applicant’s affidavit evidence and his oral testimony about which of his children travelled in the motor vehicle. This is, however, considered to be of minor significance.
The Tribunal has carefully considered the evidence before it to assign the appropriate weight to it, in assessing whether the applicant poses a risk to the safety of children.
In the contextual setting for that incident, under threat of perceived harm in a remote area of Western Australia, there is nothing in the records that suggest that the applicant was violent, and no allegations of violence were made against him. The applicant’s partner was charged with an offence (p. 21, Exhibit R2). However, the applicant believes she was not convicted of any offence (paragraph 49 of affidavit). In the applicant’s favour, he was not charged with any offences relating to the incident (paragraph 50 of his affidavit).
It was submitted by the applicant’s solicitor that, at its highest, the applicant should have intervened earlier than he did when his daughters were having a physical fight in the vehicle.
The Tribunal notes that the police reports are limited to the allegations of a witness whose evidence cannot be tested. The daughter’s statement, various witness statements and the statement of the applicant’s wife were not put in evidence in these proceedings and could not be tested.
The Tribunal understands that the eye-witnesses were a party to, or condoned, the abduction of the applicant’s daughter from her family and sought to keep the girl with them. Accordingly, their evidence is assigned minimal weight.
Having regard to the applicant’s fears that he and his family were at imminent risk of harm when they arrived at the remote property where those involved in the abduction had been drinking and threatened to shoot or bash them, and their daughter who was only 12 was hysterical and physically resisting their attempts to get her into their vehicle, the situated was emotionally charged. In that context, the applicant and his wife were desperate to retrieve their daughter from a situation they considered was imminently violent and dangerous.
In giving his oral evidence about the effect of violence and alcohol abuse on children, the applicant demonstrated a consciousness of appropriate conduct which offsets an argument that his account of the incident involving the retrieval of his abducted daughter played down or minimised what had occurred.
Accordingly, the Tribunal considers, on the balance of probabilities, that the conduct of the applicant in connection with the incident does not justify a finding that the applicant poses a risk to the safety of children.

Additional allegation noted, with no weight assigned in the assessment of risk

For completeness, the Tribunal notes that ELJ’s daughter made an allegation to NSW Police in May 2020 about the applicant being “a creep” and that she saw him “smelling [her] undies” (pp. 1-2 of Exhibit R2). This allegation was made in the context of the daughter having been taken to hospital following psychotic disturbance and requiring a mental health assessment, and being diagnosed with schizophrenia and drug-induced psychosis. No action was taken by Police and the report was made “for record only”. Accordingly, the Tribunal has assigned no weight to the allegation in the assessment of the applicant’s risk to the safety of children.

The age of the person at the time the offences or matters occurred: s 30(1)(c)

ELJ was 23 at the time of the first disqualifying offence and 25 years of age when his mother reported the offences to the police.

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: s 30(1)(d)

The disqualifying offences are referred to in the documents before the Tribunal as a “victimless crime” (p. 62 of Exhibit R2) involving two consenting adults in the privacy of their own home. During the sentencing hearing, ELJ’s counsel used this term to describe the offences, characterising them as “crimes against public morals” (p. 62 of Exhibit R2). The fact that PAY was charged with “two similar offences” (p. 61 of Exhibit R2) supports such a characterisation, and makes identification of a ‘victim’ somewhat problematic.
In terms of identifying a ‘victim’, it is noteworthy that in the sentencing hearing the Crown Prosecutor’s Counsel made the following statement:

“Your Honour, in the time available I have not been able to locate a case or any cases that are similar to this in the sense that they involve a mother and son. It would seem, with respect, that sentencing in cases where incest is involved usually involves fathers and daughters and in most instances the victim of the crime is considerably younger than the victim – and I’m speaking of the complainant in these proceedings. So in a sense the sexes of the persons involved here are in reverse order to what the courts usually have before them.”

Nonetheless, to the extent that the offences before the District Court proceeded on the basis of PAY’s statement against ELJ, the ‘victim’ (being the applicant’s mother) was 43 years of age at the time of giving her statement to police. PAY was 41 when the first offence occurred and not a child within the meaning of s 5(1) of the Act.
PAY initiated contact with the applicant whom she had not seen since his birth and with whom she had no relationship. PAY had been married twice and had a number of other children (p. 39 of Exhibit R2). The applicant was a 23-year-old. The applicant asserts that PAY initiated the conduct that led to them both being charged with offences. ELJ’s written evidence is that he wished he had not been “so naïve and stupid” (paragraph 16, Tab 1, Exhibit A2).

Vulnerability of the ‘victim’

To the extent that PAY may be identified as the ‘victim’, her statement to police reveals that she was vulnerable in some respects. As stated previously in paragraph 18 above, PAY said she was having relationship problems with her husband and that the marriage wasn’t working well. PAY disclosed that her consent to intercourse with ELJ was largely due to her desire to “keep the peace” and out of fear of ELJ’s alleged violent and abusive conduct when she refused to comply with his demands (pp. 44-45 of Exhibit R2). However, the applicant’s sworn evidence is that PAY told him that her husband was abusive and that ELJ helped PAY to move away from her husband to “get away” from him (paragraphs 15 and 18, Tab 1, Exhibit A2). The applicant states in paragraph 14 of his affidavit that he knew there were problems between PAY and her husband. It is reasonable to infer that those problems may have contributed to any vulnerability PAY was suffering.
Other than the statement by PAY (who is not available to be tested), there is no other evidence available to conclude that she was affected by sufficient vulnerability so as to heighten the seriousness of the offending conduct beyond the weight before the Tribunal assigned to the nature of the disqualifying offences. Submissions made on behalf of the Crown Prosecutor during the sentencing hearing for the disqualifying offences describe PAY’s consent as being in the nature of “going along” with the conduct “because of a number of emotional and physical circumstances that existed at the time” (p. 63 of Exhibit R2).
Weighing against PAY’s account, the applicant asserts that he was never violent towards PAY and never threatened her (paragraph 23, Tab 1, Exhibit A2).
As previously stated, the Tribunal treats PAY’s uncorroborated and untested statement with caution and has assigned minimal weight to her allegations that the applicant was manipulative, threatening, aggressive or violent towards her.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person s 30(1)(e)

The age difference between ELJ and his biological mother is 18 years.

Whether the person knew, or could reasonably have known, that the victim was a child: s 30(1)(f)

PAY was not a child, and was 41 years of age at the time of the first offence.

The person’s present age: s 30(g)

The applicant is now 50 years of age.

The seriousness of the person’s criminal history and the conduct of the person since the matters occurred: s 30(1)(h)

With the exception of the disqualifying offences, the applicant has no other convictions, charges or apprehended violence orders on his criminal history.
The applicant’s conduct since the disqualifying offences has otherwise been considered under s 30(1)(b) of these Reasons.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i)

The Tribunal has considered the psychological report of Ms Martens, Forensic Psychologist, and notes the following.
Ms Martens’ psychological assessment report notes that the applicant was convicted in 1996, more than 20 years ago. She states that risk assessment for sexual offending is predicated on at least one harmful sexual offence having occurred and that whilst the applicant’s offence was sexual in nature, it did not represent sexual abuse and therefore his offending history cannot be captured by risk assessment tools designed for use with abusive sexual offenders (paragraph 49, Tab 2, Exhibit A2). Ms Martens opines that risk of sexual reoffence reduces significantly for every five years that an individual is in the community, offence free. She is of the view that, in the absence of more recent offending, the qualifying offences “bear little to no predictive power over his current or future behaviour.”
Ms Martens places no weight on the documentation suggesting that the applicant’s daughter had commented to police that the applicant was a “creep” and had smelt her underwear, as the comment was made in the context of a psychotic episode.
A number of inconsistencies between the applicant’s account and information contained in the documents provided by the respondent were noted by the forensic psychologist. This included details of the length and quality of his relationship with PAY, details of the assault perpetrated by the applicant’s wife toward their daughter in 2017, a history of disputes where police were called to his home, and an inability to recall having undergone counselling through the Family and Children’s services in Western Australia. Ms Martens thought that it was possible the applicant had a different recollection of past events, or that he may have been motivated to minimise the events during his assessment. However, Ms Martens stated that the inconsistencies, in her opinion, did not impact upon the assessment of risk. This is because the assessment of sexual risk is predicated on at least one past sexually harmful event and, in the applicant’s case, the sexual offence was not an abusive sexual offence but an offence “of a moral nature” due to the lineal relationship with PAY.
In the absence of utilising risk assessment tools, Ms Martens has considered the applicant’s case alongside typical factors associated with increased likelihood of sexual offending. In forming her opinion, Ms Martens has taken into account the following:

the applicant’s long-term relationship for 22 years with his wife;

his denial of having sexually deviant interests;

there being no history of antisocial behaviour, substance use disorders or major mental health concerns;

his success in employment before having his application for WWCC clearance refused.

Ms Martens is of the view that the applicant does not evidence any factors that would suggest “a propensity to engage in sexual harm” and opines:

“there is no evidence to suggest that [the applicant] would pose an appreciable risk of sexual harm toward children”. [paragraph 50 of report]

In considering whether any elements of s 30(1) of the Act were relevant in the determination of risk, having regard to the period of time that has elapsed since the disqualifying offences, the age of the other party, the applicant’s current age, the applicant’s subsequent lack of criminal history, the absence of a clear victim involved and there being no child involved in the offences, Ms Martens opined:

“it is difficult to perceive that [the applicant] would pose an appreciable risk to children, particularly in a workplace setting as he has described.”

Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1)

The Tribunal understands there are no known orders of any Court or Tribunal currently in force in relation to the applicant.

Any information given by the applicant in, or in relation to, the application: s 30(1)(j)

The applicant provided the following information in support of the application:

his affidavit sworn on 17 December 2020, testifying to various matters;

the psychological assessment report dated 9 December 2020 of Ms Martens, Forensic Psychologist;

details of his employment with an Aboriginal Health Service from 26 October 2009 to 23 January 2018 (Tab 6 in A2);

details of his employment with an Aboriginal medical service organisation from 22 January 2018 (Tab 7 in A2) including confirmation of his only employment-related issue concerning the use of a mobile phone while driving;

his oral evidence, delivered quietly, that he is not a violent person, but is a caring person;

his insight into the ill-effects of violence and alcohol abuse in front of children, giving oral testimony that a lot of children from other families and kin had lived with him and his family when they were in Western Australia to have respite from their own families experiencing the damage caused by exposure to violence and alcohol abuse; and

his obvious shame and remorse over the disqualifying offences, breaking down on two occasions when giving his evidence. It was apparent to the Tribunal that he was overcome with humiliation and distress, having to recall and give his account of the disqualifying offences. He broke down again when asked whether he had told his wife and children the truth about his application to the Tribunal. The applicant stated that he had tried to “bury” the incidents, and had lied to his family about why his clearance had been refused. He said that he had not told his wife the truth about the refusal of his application and in fact, could never tell his family the truth, as it would destroy them. He said that he had lost everything and that his children had suffered greatly because of his loss of employment.

Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1)

The Tribunal understands there is no other relevant information in relation to the applicant obtained in accordance with s 30A of the Act (exchange of information to bodies in other jurisdictions) to be taken into consideration.

Any other matters that the Children’s Guardian considers necessary: s 30(1)(k)

The Tribunal considered closing oral submissions made on behalf of each of the applicant and the respondent.

Submissions on behalf of the applicant re s 30(k)

It was submitted on behalf of the applicant that, taking into account those factors required to be considered by the Tribunal under s 30(1)(a)-(k) of the Act, he has discharged the onus upon him to the requisite standard of proof that he does not pose a real and appreciable risk to the safety of children.
It was submitted that the applicant has demonstrated that he has met the reasonable person and public interest tests set out in s 30(1A) of the Act.
There is expert psychological evidence before the Tribunal that the applicant does not pose an appreciable risk to the safety of children.
It was submitted that, having regard to ELJ’s oral testimony and affidavit, some inconsistencies in the evidence are explained by the applicant’s attempts to “bury” his memory of the events that weigh very heavily upon him. The Tribunal accepts that the stress associated with the inability to obtain a WWCC clearance and the impact of these proceedings prompting fresh scrutiny of events that the applicant has fought to suppress in his memory, appear to have impacted his ability to clearly recall some (though not all) matters on which he was questioned.

Submissions on behalf of the respondent re s 30(k)

It was submitted on behalf of the respondent that the Children’s Guardian takes no position with respect to the grant of the enabling order and notes the matters outlined in its submissions as being relevant to the assessment of weight to be attributed to the evidence before the Tribunal and the Tribunal’s determination.
The Tribunal was ably assisted by submissions of Counsel for the Children’s Guardian. Referring to the Court of Appeal’s decision in CXZ v Children’s Guardian [2020] NSWCA 338 at [57], Counsel for the respondent noted that some matters fall into the ‘grey zone’ where allegations fall between the two extremes of either being proved or disproved.
Counsel for the respondent went on to identify three matters of relevance in assessing whether the applicant poses a risk to children:

the allegations in PAY’s statement that he was violent and aggressive;

the two allegations of domestic violence; and

the allegations about the applicant’s wife beating their daughter.

As previously stated, the Tribunal has assigned minimal weight to PAY’s untested and uncorroborated statement that the applicant was violent and aggressive and threatened her into having sex. In proceedings before Williams DJC in the District Court, there were no findings made that the applicant was violent towards PAY. The applicant’s affidavit evidence that he was “never violent towards” PAY and that he “never threatened her” (paragraph 23, Tab 1, Exhibit A2) was assigned greater weight by the Tribunal than PAY’s allegations, having regard to his overall demeanour when giving evidence during the hearing.

The allegations of domestic violence incidents and the weight attributed to them have already been considered in these Reasons.
The allegations about the incident involving the applicant’s retrieval of his daughter and the weight attributed to them have, likewise, already been considered in these Reasons.

Conclusion reached in relation to s 30(1)(a)-(k) matters

Having regard to the totality of the evidence, taking into account the inconsistencies identified and assigning appropriate weight to particular allegations having regard to their seriousness, any evidentiary support and the conduct of the applicant with respect to those allegations, the Tribunal is satisfied on the balance of probabilities that the applicant does not pose any real and appreciable risk to the safety of children.

Section 30(1A) matters on which the Tribunal must satisfy itself

Additionally, under s 30(1A) of the Act, the Tribunal may not make an enabling order unless it is satisfied that:

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

it is in the public interest to make the order.

Turning to the first limb of s 30(1A), the Tribunal has considered the evidence before it. This includes the information provided by the applicant in relation to the application, the applicant’s oral testimony, the information and submissions provided on behalf of the respondent, information and submissions made on behalf of the applicant, and the expert evidence of Ms Martens.
The Tribunal is satisfied that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while engaged in any child-related work on the following grounds:

on the basis of the expert evidence, even taking into account the inconsistencies identified, there is no evidence to suggest that the applicant would pose an appreciable risk of harm toward children;

the first disqualifying offence occurred more than 27 years ago and there was no conviction for any matters of violence or involving a child;

PAY was not a child but an adult of 41 years of age and 18 years older than the applicant;

the weight of evidence is that the disqualifying offences were likely committed with the consent of PAY who was similarly charged with offences arising from the conduct;

the offences were criminalised by reason of their socially and morally unacceptable nature, rather than their objective harm to PAY;

there have been no subsequent offences or complaints against the applicant with respect to conduct or offences of a sexual nature;

the applicant has not been charged with any offences involving children;

the applicant has expressed his remorse and sincere regret for his offending behaviour and has expressed deep shame for his behaviour;

the applicant has been in a long-term relationship without any periods of separation with his wife of 22 years; and

the applicant has involved himself in positive community engagement through his employment with Aboriginal health services in multiple regional localities for almost 20 years.

With respect to the public interest test, noting that the paramount consideration of the Act must take priority over the private interests of the applicant, the Tribunal is satisfied that the making of an order which has the effect of enabling the applicant to work with children is in the public interest and does not compromise the Act’s objectives, on the following grounds:

the Tribunal has formed the view that the matters considered under s.30(1)(a)-(k) of the Act support a finding on the balance of probabilities that the applicant presents no real and appreciable risk to the safety of children;

the applicant’s work in Aboriginal health involves contributions to organisations which exist for the social good by providing healthcare to Aboriginal communities in remote and regional locations and the applicant has demonstrated his dedication to this work;

the applicant has been unable to work in Aboriginal health since his clearance was refused and will continue to experience great difficulty in securing work in Aboriginal health without a clearance;

as a result of being refused a clearance, the applicant has effectively been rendered homeless (although he has recently obtained work on minimal hours at a grocery store), having a significant economic impact on the applicant and his family, as well as creating a financial burden on the social security system;

the applicant is passionate about his work in Aboriginal health and his right to work in his chosen field is of at least equal importance to the public interest, relying upon the decision of the Tribunal in DCY v Children’s Guardian [2019] NSWCATAD 274; and

the applicant has insight into his offending behaviour and is deeply ashamed of it, making him demonstrably able to be rehabilitated as is evident from the subsequent lack of offences for more than 25 years.

Orders

Accordingly, the Tribunal makes the following orders:

The decision of the Children’s Guardian dated 26 August 2020 to refuse to grant the applicant a working with children check clearance is set aside.

Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of his conviction on 11 March 1996 for Sexual Penetration by Lineal Relative (3 counts) contrary to s 329(7) of the Criminal Code 1913 (WA).

Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children’s Guardian is to grant the applicant a working with children check clearance.

**********

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

Registrar

Decision last updated: 04 March 2021

Medium Neutral Citation:	ELJ v The Children’s Guardian [2021] NSWCATAD 51
Hearing dates:	8 February 2021
Date of orders:	8 February 2021
Decision date:	08 February 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Starke, Senior Member and E Hayes, General Member
Decision:	(1) The decision of the Children’s Guardian dated 26 August 2020 to refuse to grant the applicant a working with children check clearance is set aside. (2) Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of his conviction on 11 March 1996 for Sexual Penetration by Lineal Relative (3 counts) contrary to s 329(7) of the Criminal Code 1913 (WA). (3) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children’s Guardian is to grant the applicant a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW - Working with children check clearance — Application for enabling order under s 28 of the Child Protection (Working with Children) Act 2012
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation (NSW) 2013 Crimes Act 1913 (WA) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v V [2002] NSWSC 949 CXZ v Children’s Guardian [2020] NSWCA 338 CYY v Children’s Guardian (No. 2) [2017] NSWCATAD 262 DCY v Children’s Guardian [2019] NSWCATD 274 Smith v Commissioner of Police [2014] NSWCATAD 184 The Commissioner for Children and Young People v IK [2005] NSWSC 1136 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	ELJ (Applicant) Office of the Children’s Guardian (Respondent)
Representation:	Counsel: R J Pietriche (Respondent) Solicitors: Jessica Allan, Legal Aid NSW (Applicant) Crown Solicitor (Respondent)
File Number(s):	2020/00277559
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited, pursuant to the order made on 29 September 2020 under section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.