EMS v Children's Guardian - [2022] NSWCATAD 15

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EMS v Children’s Guardian [2022] NSWCATAD 15
Hearing dates: 22 September 2021
Date of orders: 14 January 2022
Decision date: 14 January 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
M Bolt, General Member
Decision:
(1) Time for the applicant to lodge his application for Administrative Review is extended to 5:00pm 20 November 2020 pursuant s 41 of the Civil and Administrative Tribunal Act 2013.
(2) The decision of the respondent dated 14 April 2020 to refuse the applicant’s Working With Children Check Clearance is set aside.
(3) The respondent is to grant the applicant a Working With Children Check Clearance.

Catchwords:
ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children

Legislation Cited:
Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Children and Young Persons (Care and Protection) Act 1998
Civil and Administrative Tribunal Act 2013

Cases Cited:
ADV v Commission for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v CKF [2017] NSWSC 893
Children's Guardian v CXZ [2019] NSWSC 1083
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
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409
M v M (1988) 166 CLR (HCA)
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
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
Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

Category: Principal judgment
Parties: EMS (Applicant)
Children’s Guardian (Respondent)
Representation: Solicitors:
Applicant Self-Represented
Crown Solicitor (Respondent)

File Number(s): 2020/00333135
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

This applicant seeks administrative review of a decision by the respondent refusing his Working with Children Check Clearance (WWCCC). The clearance was refused because the respondent (the Office of the Children’s Guardian) was satisfied that he posed a real and appreciable risk to the safety of children.
The applicant is referred to as ‘EMS’ in these proceedings. EMS is the applicant's pseudonym used in these proceedings in conformity with an order made under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) on 17 December 2020 restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. In order to prevent constructive identification of the applicant some aspects of his occupation and related matters are referred to in general rather than specific terms. As an example of this we use the term ‘martial arts’ to describe in very general terms EMS’s professional and private sporting pursuit. In our view given the nature of the sport and EMS’s history of training, teaching and competition, to describe the sport further would constructively identify EMS.
EMS applied for a WWCCC on 11 April 2018 nominating Disability Services as the relevant child related employment sector, and was verified by the employer on 8 March 2019.
Pursuant to s 15 (4) of the Child Protection (Working with Children) Act 2012 (the ‘Act’) the respondent was required to conduct a risk assessment of EMS as there were disclosed matters in his history which conform with matters listed in clause 1 (1) (b) of Schedule 1 of the Act. That matter related to EMS being charged by Police with various offences in the nature of sexual assault and unlawful sexual intercourse approximately 20 years prior to the application.
Having conducted the risk assessment during 2018 and 2019 the respondent notified EMS in February 2020 that they proposed refuse the clearance. After EMS had a chance to respond to the proposed refusal, (the basis of the proposed refusal being that the respondent was satisfied that EMS posed a real and appreciable risk to the safety of children), the respondent made their decision and refused the clearance.
Having considered all of the evidence and material before us, and the matters set out in s 30 (1) and (1A) of the Act, for the reasons given below we are not satisfied that EMS remains a real and appreciable risk to the safety and well-being of children.
As a result of this finding the decision of the respondent will be set aside, and EMS will be granted a WWCCC.

Background

EMS applied in April 2018 for a WWCCC. In June 2018 the respondent advised EMS that his application had been referred for a risk assessment due to the existence of criminal charges in his history concerning ‘aggravated sexual assault’ – victim under the age of 16 years’ and ‘sexual intercourse with person 14 or over and under 16 years’. These charges require the respondent to undertake a risk assessment due to the operation of s 15 (1) of the Act as the charges relate to matters listed in Sch 1 of the Act.
In conducting the risk assessment the respondent considered the material relating to the charges. Whilst the charges did not proceed to any adverse legal findings against EMS, having been withdrawn by the Director of Public Prosecutions (DPP) prior to hearing, the respondent considered that an analysis of the available evidence indicated that there was a consistency to the complaints and the evidence of witnesses. In addition the respondent considered two assault charges preferred against EMS in 2014 arising in the context of a domestic dispute between EMS and his then partner. EMS was convicted of one count of assault (occasioning actual bodily harm – AOABH) with the second count withdrawn. He received a 12-month bond under s9 of the Crimes (Sentencing Procedure) Act 1999. Associated with these matters Police sought an Apprehended Violence Order (AVO), which was granted. Three months after the assault (but prior to the conviction) EMS breached the AVO by contacting the victim by telephone and threatening to self-harm. EMS was convicted of the breach and received the same penalty at the time of sentencing for the assault.
In 2011 unrelated charges for assault and AOABH arose against EMS relating to a matter at a licenced venue. These charges were dismissed at Court in 2012.
Weapons (knives) and drug related charges arose in 2012 for which EMS received a s 10 Bond (offence proven no conviction recorded). In 2001 EMS had a number of extremely serious traffic matters, which equate to criminal offences, withdrawn administratively and by direction of the Court. These matters related to dangerous driving occasioning death, and negligent driving causing death in 1999.
An earlier charge in 1999 for AOABH (unrelated to the matters above) was also dismissed. All of these matters are examined in greater detail below.
The respondent considered all of these matters, in addition to material provided by EMS. Part of that material concerned an understanding by EMS that the sexual assault incidents had taken place in a consensual context where he was unaware that the victim was under 16 years of age.
The respondent also considered personal references and statements in support of EMS’s positive history of work in child related employment, as well as evidence of successful completion of drug and alcohol programs and counselling sessions. The respondent noted that the last six years incident free following the completion of counselling and related programs should be considered positively for EMS. The respondent noted that EMS’s recent child related employment history over this period had been positively verified by more than one referee and these matters stood in his favour. However the Respondent determined that EMS’s alcohol use and its relationship to his prior offending remained a concern. In April 2020 when making their decision the Respondent noted that:

Although (EMS’s) child related employment during the past five years has been positively verified his actual and alleged use of violence over time, raises concerns regarding his capacity to engage in appropriate conduct. Consideration is also given to the seriousness of the violence on his record where complainants have required hospital treatment for major injuries which if repeated may have the potential to cause serious harm. …

The information indicates that alcohol has been a contributing factor in some of his offences. There is no information to show that (EMS) has engaged in specific remedial intervention to address the use of violence and alcohol use.

It was essentially for these reasons referred to above that EMS was deemed to continue to be a risk to the safety of children and his application for a WWCCC was refused.
The respondent finalised their assessment and refused EMS’s application for a WWCCC on 14 April 2020.
On 20 November 2020 the applicant applied for administrative review by the Tribunal. The application for review was not filed within the 28-day period allowed under the legislation. As a result EMS needs leave to proceed out of time, by way of an order extending time under s 41 of the NCAT Act. At hearing it was not apparent from either the Tribunal file or the parties (including the respondent’s representative) whether time had been extended. In written submissions the respondent noted at [11] of those submissions that the application was approximately 27 weeks out of time, but that they did not oppose an extension of time to receive the late application.
At the commencement of the hearing the Tribunal dealt with the jurisdiction issue and having considered oral submissions from EMS that the matter was with Legal Aid for some time awaiting advice on whether he should apply for administrative review, we determined to extend time.

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

As a result the application could proceed to hearing.

Jurisdiction of the Tribunal

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

3 Object of Act

The object of this Act is to protect children:

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

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

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

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

The application for administrative review

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

I am appealing the unfair decision in rejecting me a WWCC. [sic] The offence they have stipulated was an unfortunate situation at the break up of a long term relationship. At no time was any minors involved. [sic] At the time I was 34 and the other party was approximately 40 years of age. I have [sic] the opportunity to work with the Mental Health sector, I have also previously worked for the Juvenile Justice as a mentor because of y sporting achievements. I believe this is an unfair decision as I have no prior or previous convictions. I have worked within the security and RSA industry as well as the community without any problems.

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

The working with children legislative scheme

The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.
The safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: s 4 of the Act.
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.
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.
Other provisions of the Act deal with assessment requirements, which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)). EMS was subject to a risk assessment as the respondent identified matters listed in Sch 1 of the Act as referred to at [8] above.
Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions. The section relevantly provides:

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

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

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

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

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

(5), (6) (Repealed)

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

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

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

30 Determination of applications and other matters

(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,

(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.

If at the conclusion of the s 30 (1) process the Tribunal determines that an applicant for a clearance I not a risk to the safety of children, then the Tribunal must consider the matters et out at 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.

Only after an applicant has successfully navigated s 30 (1) and (1A) can the Tribunal grant a WWCCC on administrative review.

Burden of Proof

The jurisdiction of the Tribunal under s 27 of the Act has been found to be protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

An application pursuant to s 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. However, there is no statutory presumption that the applicant is a risk to children unlike an applicant for an enabling order under s-28 of the Act.
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". ...'

These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.
The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].
We note that since the cases referred to above ‘risk’ has now been given a statutory definition in Act at s 5B by reference to ‘risk to safety of children’.

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

The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the ADR Act, which provides:

(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.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

As noted above an application under s 27 of the Act is an administrative review. The Tribunal’s function on review under section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

The hearing

The matter was heard over one full day. Due to the COVID 19 pandemic the hearing occurred by AVL and telephone.
The applicant gave evidence at the hearing, as did his expert report writer Dr Walker.

Written Evidence

Applicant’s written material

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

Exhibit ‘A 1’: the application for administrative review,

Seven sets of submissions containing personal references, counselling notes/reports, the report of Dr Walker Forensic Psychiatrist dated 31 May 2021.

Respondent’s written material

The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings under s 31. The respondent also filed detailed written submissions dated 31 August 2021.

Exhibit ‘R-1’ Section 58 documents filed 29 January 2021 -305 pages.

Exhibit ‘R-2’ documents obtained under s 31 of the Act - 81 pages filed 16 July 2021.

Exhibit ‘R-3’ further documents obtained under s 31 of the Act -55 pages filed 30 August 2021.

EMS works in the area of martial arts and has competed in a specialised field both nationally and internationally with some success for many years. His interest and sporting pursuit is tied to his occupation, which also involves training students (both adults and children) in the martial arts. At the time of the hearing EMS was 41 years of age. His main employment at that time was as a security guard in the regional centre where he lives. He also works as an instructor at a local Gym where he specialises in various martial arts, which are referred to competitively as a ‘combat sport’.

Applicant’s evidence at hearing

In evidence in chief EMS told the Tribunal that he had run a Gym for 21 years and worked in the security industry for 15 years. He told the hearing that he had not committed any offences specifically against children and had engaged in what he described as ‘stupid behaviour’ when younger but was older now and much more mature.
In cross-examination EMS confirmed that he was now 41 years of age, and confirmed that he had four biological children, three being to former partners. He said that he had contact with 2 of those three children and no contact with one. The fourth child arises from his relationship with his current partner who has three other older children (under the age of 18) of her own. EMS said that these children resided with them and that he has ben in this relationship for the last seven years.
EMS was questioned about the first incident where he came to Police attention. The incident was described as inciting another male person to fight. His evidence was that he would have been 16 years old in 1996 when the matter arose. The other person was in a car and the person yelled out at him. He did not think or recall that he had consumed alcohol prior to the incident. EMS could not recall whether he drank regularly when he was 16 years old. The applicant told Police that he used the force that he deemed necessary as he thought that he was going to be seriously injured at the time. No charges arose for either party. Police surmised that EMS had been provoked by the other party.
The second incident referred to by the respondent concerned EMS being accused of being on premises without permission where he is alleged to have punched an occupant. EMS denied these matters. In evidence at hearing he said that he was intervening in a property matter on behalf of another and was seeking to recover misappropriated property. EMS described the incident as recovering stolen camping equipment. EMS was unable to recall whether he had been drinking prior to this incident.
The third incident referred to by the respondent concerned police records about an altercation on licensed premises when EMS was 19 years of age. The incident concerned EMS assaulting the other person and later apologising to the person and then being ejected from the premises. There is a dispute about whether EMS assaulted the other person twice. EMS gave evidence at the hearing that he was assaulted by the other person (punched to the face) first and he hit him in response. EMS confirmed that he had been drinking. The matter did not progress further as the other person advised Police that EMS had apologised to him.
Later the same year EMS was involved in an altercation with a male and female and punched the male. EMS said that he hit the male to the body to get away from the pair. He said in evidence that he had not been drinking at this time. No action arose from this matter.
Later that year EMS was charged with AOABH following an incident the year prior where hockey sticks were used to assault a victim. EMS was allegedly in company. All charges were however withdrawn. In evidence before the Tribunal EMS denied that he played any role in this incident. He said that he saw the individual victim but did not play any role. EMS gave evidence that he would have been unable to take part even if he wanted to as he was injured at that time from a ‘bull riding’ incident the week prior. He said that he told all of this to the Police. EMS said that he did not know the victim, but he ‘knew of him’. EMS said that only two persons were involved, he was not involved and walked away from the incident for the reasons stated. EMS said that he had not been drinking at this time.
EMS was asked about the significant incident which resulted in the serious sexual assault charges. The allegation being that EMS and another male (both aged 19) had sexual intercourse with a female who was 15 years of age. The circumstances of the incident are that the two had attended a large gathering of predominantly young persons (but there were also some older family members of the attendees present). The charges were withdrawn by the DPP who determined that they could not establish to the requisite standard that EMS (a) knew that the complainant was not consenting, and (b) that the complainant was under 16 years of age.
The incident occurred at a rural property. EMS and another male person engaged in sexual activities with the complainant consisting of oral and vaginal sexual intercourse. The intercourse by the males occurred (according to EMS) consecutively (one shortly after the other rather than jointly). EMS had stated prior to these proceedings that he believed that the complainant was at least 16 years of age at the time and was consenting. A Department of Communities and Justice investigation determined that there was substantive evidence that the complainant was sexually assaulted.
EMS in his evidence at hearing advised that the ‘gathering’ was a Ute Muster, where the female was later established to be a 15 years and nine months old girl. EMS stated that he was not 100% sure that his friend (the other male) was engaging or participating in the sexual act at the same time as he was. EMS said that the weekend before the Ute Muster the complainant had come to his home in the regional town where he lived and had sex with his flatmate (the other male in the incident). EMS gave this evidence in the context of his belief that the complainant was both of age and sexually active. EMS said that when he saw the complainant the other weekend he understood, ‘that’s the way it went’. EMS said he was asked to ‘join in’ by the complainant. EMS said that the complainant initiated the oral sex with him. He agreed with the respondent’s proposition that he had been drinking prior to the incident and said that there was a lot of alcohol at the muster.
EMS was asked about a further incident in 1999 where a passenger in a motor vehicle driven by him died. In cross examination EMS agreed that he had been drinking. There was reference to a blood alcohol reading of .149 which was very close to high range, and which was taken two hours after the accident. EMS said that he could not recall when his last drink was (before or after the accident). In this context EMS gave evidence that he was not intoxicated when he was driving the car. EMS gave this evidence in the context that other people in the car were drinking and intoxicated and he was very fit and was the driver. When EMS was asked in cross examination whether he had anything to drink between the accident and arriving at Hospital he answered ‘no’. EMS said that the accident occurred when he swerved to avoid a kangaroo. The applicant was found not guilty by direction of the two charges arising from this incident (dangerous driving occasioning death under influence, and dangerous driving occasioning death at dangerous speed).
EMS gave evidence about an incident in June 2011 when he was 30 years of age and was working as a security guard. EMS was alleged to have thrown a patron down a flight of stairs. EMS said that the patron weighed 110 kilograms and at the time he was 63 kilograms. EMS said that he used an approved appropriate technique (not a chokehold) and removed the patron by himself. EMS said that other guards had previously been assaulted. EMS said that the patron fell down the stairs after he was brought to the door, and that he fell and was not pushed. He said that the patron ‘just walked off the step’. EMS stated that he had not consumed any alcohol prior to this incident.
EMS was taken to an incident in 2012 when he was stopped for a random breath test and his vehicle searched. Police located a butterfly knife, other knives and hundreds of tablets (steroids) in the vehicle. He was charged and had the offences proven at Court receiving a s 10 bond (offence proven no conviction recorded). EMS told police and the Tribunal that the tablets had been prescribed by a Thai doctor and had been brought back in his luggage when EMS returned to Australia from a martial arts tournament in south east Asia. EMS denied that he was selling the tablets and that the knives were for yabbie fishing
In respect of his risk to children EMS was asked about what was possibly the most significant incident in his history, as relied upon by the Children’s Guardian. This incident concerned an altercation with his then partner in March 2014. EMS told the hearing that he met the partner through the shared martial arts interest and that she was also a highly trained competitor in the sport like himself. EMS told the hearing that by March 2014 the relationship was breaking down. He attended the home in March 2014 and had an argument with the partner. He was asked to leave due to the argument concerning the partner’s mobile phone, EMS said that he did not take the phone back from the partner but picked the phone up off the table. EMS said that he did this to stop the icloud photos being deleted and denied leaving the premises with the partner’s phone. The Police version placed EMS trying to leave the premises with the partner’s phone. The partner kicked EMS in order to retrieve the phone, with EMS then allegedly kicking the partner to the side, and kneeing her in the back and punching the back of the head. A headlock and struggle ensued between the pair and EMS left the premises and at that time threw the phone at the partner. The partner is recorded as suffering a broken nose.
On the crucial aspect of assaulting the partner with the phone, EMS told the hearing that he threw the phone and it hit the partner. His evidence was that he did not throw the phone at her, but conceded that contact was made. EMS said that he pleaded guilty to AOABH because the DPP said that if he did this they would drop the other charges. When asked in cross examination wether he had been drinking EMS emphatically denied that he had consumed any alcohol at that time. However in respect of the breach of the subsequent AVO (when EMS called the partner in the middle of the night threatening to self-harm if the charges proceeded) EMS conceded that on that occasion he had consumed alcohol.
Other allegations are recorded in the respondent’s material (concerning a 2017/2018 report about domestic violence in EMS’s current relationship. However with EMS’s denials there is no evidence of any probative value concerning this report. EMS accepted at hearing that the allegation was made and maintains that it was made by his ex-partner (from the 2014 relationship breakdown).
EMS was asked about his counselling sessions with Peter Smith from August 2014 to February 2018 and Ms L Wilkins during 2013 to 2014. It was clear that during cross examination there was some confusion concerning the MERIT (Magistrates Early Referral into Treatment) program counselling and other counselling and dates of sessions. EMS in his evidence recalled attending both counsellors around about the same time. In his evidence before the Tribunal EMS was unable to recall whether he attended counselling of his own volition or whether attendance was a requirement of a Court order.
EMS referred in his evidence to his martial arts pursuit and the need for positive thoughts and to dispense with negativity prior to events. EMS extrapolated this out to his whole life and said that he needed to remove self doubt and negative thinking from his life. EMS said that Peter Smith had a positive impact on him and changed his thinking and thought processes through participation in the sessions. EMS said that this process changed the way he looked at things and that he now sees things differently to how he had seen them when he was younger. In cross examination EMS was asked whether he could recall a time prior to Mr Smith’s impact where he might have with hindsight acted differently. EMS could not recall a specific real example having the question put to him without notice but said that the changes addressed his life generally, not so much specific issues.
When asked what was an example of something which might have previously triggered an adverse response, EMS agreed with the premise of the question and talked generally about the types of situations he encounters regularly as a security guard. EMS said that he deals with the ‘triggers’ now much better than he did when he was 17 or 18 years old. When EMS said that he would not be ‘triggered’ (in his behavioural reaction) by some of the incidents outlined in the evidence he was asked why by the respondent’s representative. EMS answered that the change was due to ‘just life’, and positive matters such as age, family, the Gym where he operates and matters of that nature. EMS said that ‘you have to be a good person because of your family, and business reputation.
In respect of the counselling by Ms Wilcox EMS said that the purpose of those sessions was to address the breach of the AVO where he was intoxicated and called the ex-partner threatening to self-harm.
EMS was asked a further series of questions by the respondent’s representative. EMS was asked whether he believed his underlying problems with his reactions were addressed by the counselling sessions. He said that some counselling (such as the Anglicare counsellor) was ineffective as he could not relate to that counsellor like he could to Counsellors Smith and Wilcox. EMS noted that there had been no offences since the counselling.
EMS was questioned about alcohol consumption and his evidence was that he was minimising his intake. He said that he would always have employment and that employment was important to him, and that he had never been unemployed (without income). EMS denied the proposition that he had previously become involved in incidents and gets involved generally and gets violent when he has been drinking. When asked whether he still has a drink on Fridays and Saturdays after work EMS denied this was the case.
EMS was taken to Dr Walker’s expert report. There was some confusion about alcohol consumption with the report from May 2021 referring to one drink after work on Fridays and Saturdays and one or two drinks watching football on Sundays. The report refers to an abstinence from drinking to prepare for competition.
The Tribunal asked some questions of EMS (s- 38 NCAT Act) about his current alcohol intake. He told the Tribunal that he does not consume alcohol at present.

Dr Walker’s evidence

Dr Walker gave expert evidence in respect of EMS at the hearing. He affirmed and adopted his report of 31 May 2021 in evidence in chief.
In cross examination Dr Walker confirmed his credentials and qualifications as a Forensic Psychiatrist. He confirmed that when giving his evidence he now had access to the three bundles of the respondent. (Exhibits R1, R2 and R3).
Dr Walker advised that at the time of his report he was not aware of the 1996 incident where EMS was verbally provoked and retaliated physically. He was also unaware of the contested incident concerning EMS entering the residence of another (ostensibly to retrieve stolen camping equipment). He was unaware of the incident where EMS was ejected from licensed premises after a physical altercation with a patron in 1999, nor was he aware of the incident between EMS and another male and their girlfriend in February 1999.
Dr Walker was aware of the alleged sexual assault incident at the rural property but understood that EMS was 17 years old not 19 years old. He was also unaware that the alleged victim was 15 years of age.
Dr Walker was aware of the fatal car crash incident but was unaware of the .149 PCA reading 2 hours after the accident. The only other matter he was unaware of was the charges arising from the steroids and knives in EMS’s car. Dr Walker was aware of the domestic violence incidents / assaults in 2014. However Dr Walker was unaware that EMS had taken up DV counselling with counsellors P Smith and Ms Wilcox. He was aware that EMS had not been charged with any offences since he commenced counselling.
Dr Walker was asked whether his psychiatric opinion of EMS had changed (since his report) now that he was across the absent instances and details referred to above. Dr Walker said that his diagnosis had changed in respect of drug and alcohol. He said that he departs from his summary and opinion that there was past or current psychological conditions impacting on EMS. He said that the sexual allegation (even with the victim at 15 and 9 months and the applicant at 19 years of age) does not meet the psychiatric criteria for paraphilia.
Dr Walker said that if EMS had an anti-social personality disorder, it would make it unlikely that he could hold down a job, let alone run a successful business. There had been a prior history of drug and alcohol abuse but that history was now absent. The witness confirmed that in the past EMS had an alcohol use / abuse disorder as well as the abuse of steroids. Dr Walker had been concerned about the steroid use and indicated that it would be classified as a substance abuse condition. He said that this may explain some of EMS’s violent behaviour in the past.
In respect of EMS’s current level of risk, Dr Walker said there are significant static risk factors. These include historic and gender matters, including EMS’s past offending behaviours. The witness advised that dynamic risk factors can mitigate against risk if they are addressed, such as depression and alcohol abuse being addressed by treatment. Dr Walker’s evidence was that past treatment would not be a heavily weighted factor. Current treatment would be weighted to a greater extent. The witness was asked about how EMS’s age impacts on his level of risk. Dr Walker advised that under 25 years EMS would be at peak risk, and that generally after that, as an individual ages risk decrease.
Dr Walker was asked about the inconsistencies in the evidence about EMS’s current alcohol intake. When asked about 1-2 drinks after work on a Saturday and two drinks on a Sunday watching football, Dr Walker said that he does not see this as a risk factor. The witness was asked that assuming that the frequency of intake is less than this, did that constitute a reduced risk. Dr Walker said that the risk was reduced.
Dr Walker advised that in his opinion he did not believe that any further or ongoing treatment was of any value in further reducing any risk rating for EMS. Dr Walker said that at the time of seeing and assessing EMS he was not presenting with any treatable condition. The witness agreed however that EMS might meet the diagnostic criteria for alcohol abuse condition in remission.
Dr Walker agreed that intoxication with alcohol would increase EMS’s risk of future / further offending. Dr Walker was asked about assessment of EMS’s past and future risk factors and whether both are examined. The witness agreed that both are relevant both the static and dynamic risk factors. Overall due to his counselling and abstinence from excessive alcohol intake EMS was not considered to have any significant risk factors. He was overtly avoiding the types of situations that would place him at risk in the community, avoiding licensed premises and situations where confrontation was more likely. These practical changes had occurred in the period post counselling.
Dr Walker said that EMS was keen and compliant with Court ordered psychological intervention in the past. EMS also has a history of sporting achievements and that these are factors of reduced risks of future offending.

Other evidence

EMS filed a number of character and occupational references where the authors were not required for examination by the respondent. Many of the references attested to EMS’s positive experience with their own children, both as a trainer and as a responsible influence on their children. Many of the authors had their own direct experience working with EMS as either a colleague or client. Some of the references were aware of adverse matters in EMS’s history (such as the assault incident with the ex-partner) but none of them were aware of all of the matters before the Tribunal. In any event and in the absence of any need to scrutinise the written words further by the respondent, the references carry some weight, but not significant weight in respect of s 30 (1).
Some of the references are only broadly positive character references. As a result they also carry some weight but not significant weight.
Dr Walker’s report was subject to cross examination at hearing. Whilst the report was prepared without all of the available history, this issue was cured prior to hearing. These matters were also referred to by Dr Walker who noted in his report the absence of information such as the actual basis/reasons that the Children’s Guardian refused the WWCCC. The report and evidence, whilst not providing a specific risk rating and assessment of EMS’s likelihood of harming children, it does examine his dynamic and static risk factors and presents a picture of nil psychological or psychiatric conditions which might equate to anti-social risk factors. Most of the report alludes to protective pro social matters, as did the answers given during cross examination.

Written submissions

Both EMS and respondent provided written submissions. Brief oral submissions were made at the hearing by the respondent. EMS’s written submissions spoke predominantly to how he was a changed person after turning his life around, meeting his current partner, and obtaining the tools and techniques through counselling intervention to view situations differently and leave his past behind. The reference to the past being both his offending behaviour and relatively high instance of coming to police attention in the first 15 years of his adulthood.
The respondent submitted that the initial decision should be affirmed. The respondent submitted that the most that the Tribunal could find in EMS’s favour in respect of the sexual assault charges was that his behaviour was reckless.
In respect of the 2014 offences concerning the ex-partner, the respondent submitted that the Tribunal should find that the matter is serious. It appears that the respondent held significant concerns about the breach of the Court order (AVO) whilst EMS was intoxicated.
In oral submissions at the close of evidence the respondent submitted that the evidence positively establishes that EMS poses a risk.
The Tribunal was taken to the final tab of Exhibit ‘R-3’ which contains an excerpt of the Transcript from the sentencing on the 2014 assault incident. However the Tribunal like the respondent notes the lower level penalty applied for both the 2014 assault and the breach, and the positive comments of the sentencing Magistrate as well as the positive CREDIT officer’s report as to EMS’s attendance at counselling.
The respondent conceded that there had been no recent evidence (in the last eight or more years) of steroid use / abuse.
Reference was made by the respondent to the comments of Simpson AJA in the case of CXZ v Children’s Guardian [2020] NSWCA 338 at [51] and [79]/

51. Those observations are recognition that, while some allegations can be determined as substantiated, and some can be found to be without foundation (“groundless”) “very many cases” will not lend themselves to definitive factual determination. In those cases:

“… the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.” (p 77)

…

79. I have set out above the source of this language: M v M (at first instance as recorded by the High Court at p 74), CFW at [16]). In my opinion it is unhelpful. There is no need to go beyond the language of the High Court in M v M, which (adapted to accommodate the Child Protection Act) requires the Tribunal to determine “whether on the evidence” (and that means the whole of the evidence) the applicant poses a risk to the safety of children if a clearance is granted to him. The language of “lingering doubt or suspicion” is particularly unhelpful in cases where, as here, the Children’s Guardian relies on multiple and disparate allegations to support the refusal to grant a clearance. That is because it tends to direct the Tribunal to compartmentalise the allegations and deal with each individually.

The respondent submitted that CXZ sets out three categories of approach to incidents. That the Tribunal can be positively satisfied, that the allegation is groundless, or that we cannot determine.
In respect of the reasonable person test (s 30 (1A)), the respondent submitted that significant weight would be placed on the 2014 assault of the ex-partner.
A generic oral submission as made concerning the public interest test in that the public interest will always override the private interest. Overall the respondent submitted that the Tribunal still could not be satisfied that EMS did not continue to pose a risk.

Consideration

The issue in these proceedings appears to us to be about not just determining whether the conduct subject of all of the allegations or charges occurred, and if so (or otherwise) whether that demonstrates a risk to the safety and well being of children, but more significantly what is EMS’s current likelihood of harming children. We take this clearly from the tenor of CXZ. The substantive issue concerns whether the totality of the evidence provided before the Tribunal, establish that at present EMS is a real and appreciable risk to the safety and well being of children.
Having considered the evidence and submissions we will now consider the mandatory considerations in determining the matter in the way provided for under the Act.

Section 30 (1) considerations

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

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

EMS’s application to the Tribunal is brought about by an adverse risk assessment triggered by the respondent becoming aware of the applicant being charged with a number of sexual offences some 23 years ago. These matters are clearly serious both in respect of the severity of penalty available under criminal law (if convicted) but also in the context of child protection noting the reference in s 4 of the Act to protecting (children) from child abuse.
The charges were ultimately withdrawn. The basis of this was somewhat contested at hearing with the respondent stating that it was due to the unavailability of the witness / complainant. At the beginning of the hearing a letter from the DPP was tendered in redacted form (Letter of 27 February 2005 which was included in Exhibit R- 1 pgs. 111-112 but in redacted form). The Tribunal directed the respondent to obtain or adduce the un-redacted contents (s-38 NCAT Act) and at the end of the hearing they were read onto the record. A clean copy was provided post hearing. That letter makes it clear that various matters were unable to be established to the requisite standard on the totality of the evidence, and the withdrawal was not contingent on the complaint’s availability or otherwise. These matters are referred to above.
Having regard to the evidence that EMS gave at hearing, and his general admission of the behaviour (absent any concession that there was a lack of consent or knowledge that the complaint was three months below the statutory age), we do not consider that the matter carries significant weight in assessing EMS’s current risk to children on the available evidence. This is because we cannot make a positive finding. None of the witness statements could be tested at hearing and notwithstanding the different (civil as opposed to criminal) standard, whist the matter is a prima facie crime due to the complainant’s age being three months below the statutory age of consent, the evidence did not establish knowledge of those matters in EMS or his co-accused’s mind.
The issue around consent arises on disputed evidence which could not be tested by the Tribunal. Whilst this is a protective jurisdiction and the Tribunal is mindful of the very grave matters enlivened if EMS and his co-accused forced or coerced the complaint to take part, in our view we cannot determine whether consent was given or not. The fact that the conduct occurred (in general terms) is not contested between the parties. In our view we cannot take that matter any further. We do not (on the available evidence) hold any lingering doubt and consistent with CXZ we note that we are assessing the totality of EMS’s risk if any.
On the other matters that caused a refusal we have set out those matters in significant detail above. Due to the passage of time we place minimal weight on some of the historic matters. Again this is due to EMS’s unchallenged evidence given at hearing. On a number of matters certain admissions were made (in the absence of any concluded Court finding) and in other matters outright denials were given. The respondent took EMS through these earlier matters predominantly (so it appeared to us) to link his propensity for behaviour which might constitute risk to children, with alcohol consumption.
As the Magistrate noted in the sentencing remarks on the 2014 (most recent offence), EMS has a very unusual history with a significant number of matters never proceeding and at that time noted only two positive Court findings against EMS.
In our view the significant matter remains the assault on his ex-partner where the mobile phone struck the victim. Whilst we note that EMS provided an explanation by way of mitigation to the Tribunal, he did plead guilty to the matter. In addition this incident causes us some concern as to EMS’s risk to the safety and well being of children due to the nature and context of the incident.
The motor vehicle incident is also a serious matter. However due to the absence of a proper understanding of the facts and to what extent alcohol (whilst present) and was considered a factor is unclear. EMS admitted drinking that evening, but as the reading could not be linked to any other evidence, the Court was left in a state of uncertainty about the relevance of the reading and the level of alcohol (and impairment) at the time of the collision. We note that the Court discounted any evidence that EMS was driving in excess of the posted speed limit for the area. At its highest the conduct could be considered reckless on the available evidence (scrutinised to the limited extent that the Tribunal is able). Like the trigger offence, the weight of this matter is mitigated by the significant passage of time.

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

It is clear that the matters referred to under s-30 (1) (a) cover a period of approximately 16 years. The last offence occurred in March 2014. A related matter (the breach AVO arose in the period between March and sentencing in November 2014). Whilst there has been one or two recordings of adverse information since that time we place no weight on these matters. Clearly EMS’s behaviour changed in the period leading up to the November 2014 sentencing and he has been crime and charge free since that time.
EMS has had significant counselling interventions and has received positive reports from professionals, colleagues and community members about his pro-social factors present in his life.
The evidence indicates that there is significantly less use of alcohol and a lack of evidence of any intoxication causing his behaviour to be of concern. His expert report conveys that he has no anti social tendencies at present and does not suffer any psychological or psychiatric condition requiring treatment or other intervention.

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

The applicant was in his late teens when the trigger matters occurred, and was in his 20’s and early 30’s when he has been sentenced twice by Courts.

(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.

In respect of the trigger matters the victim was a child being 15 years and 9 months of age. The applicant was a youth of 19 years of age (an adult) and his co-accused appears to have been of similar age. The victim was female and EMS and his co-accused were male. For this reason, the fact that she was a child and that the alleged offence occurred in company the victim would have been extremely vulnerable. However we note our findings above on the totality of these allegations.
In respect of the other matters relied upon in rejecting the application, it is unclear what age all of the other parties were. It appears that all parties were broadly of similar age, predominantly male. The victim in the 2014 matter was female but older than the applicant. The evidence indicates that they were both experienced martial arts practitioners.

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

The difference in age between the applicant and his ex-partner is not significant. The relationship was in a domestic context. The trigger matter the age difference was approximately three and a half years. The evidence indicates that EMS had only met the victim on one prior occasion, as a friend of his flatmate.

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

In respect of the trigger matter it appears fairly clear that EMS knew that the female was a child under 18 years of age. However his evidence was that he believed that she was at least 16 years of age. No other primary victims were identified in the material as children concerning EMS’s adverse risk assessment.

(g) The person's present age.

The applicant was 41 years old at the time of the hearing. The relevance being that offending (including sexual offending) generally declines with age and significantly past middle age. This was elaborated on in the evidence of EMS’s expert.

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

The applicant does have a criminal record in respect of the AOABH offence from 2014 and contravene AVO from 2014. EMS was placed in a s-9 Bond which he subsequently completed. Other than that there are the s -10 matter (without conviction - and a 6 month Bond) for the steroid and knife possession. All other matters were withdrawn or dismissed or did not proceed to charging. In essence EMS has a criminal record of two convictions, with a notation of two s-10 matters. The history includes the other charges withdrawn or dismissed.

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

The applicant provided an Expert Report which made findings of no paraphilia or associated disorders, and in oral evidence indicated significant risk mitigation due to counselling intervention and significant reduction / abstinence from alcohol.
There have been no verifiable instances or reports of any adverse matters in the intervening eight years since March 2014..

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

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

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

The applicant tendered a number of character references in support, and the expert report. The applicant also gave evidence under cross examination at hearing. This material has been set out in some detail above. As we have already found, whilst the references carry some weight, they do not carry significant weight predominantly due to the absence of the detail of the trigger matter and the 2014 mater from most if not all of the references (other than the author alluding to the 2014 matter in a small number of references).

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

There is no material obtained under s 36A.

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

The respondent’s concerns in their submissions are set out above. The respondent maintained that EMS lacked insight into his prior offending. The respondent did make submissions on EMS’s positive engagement in counselling and his apparent cessation of his offending behaviour following the 2014 incident.
Turning to how the Tribunal should discharge its statutory functions on the evidence we note the guidance from the Courts of record. In the case of BKE v Children’s Guardian [2015] NSWSC 523 Beech-Jones J sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Like the facts in BKE, certain matters in the current case were not settled, in that the Courts had not been a position to make any positive findings on the conduct and the applicant. In the current matter the only matters determined by a Court were as a result of guilty pleas by EMS.
At pars 29 - 33 of BKE the Court observed:

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

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

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

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

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

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

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

Findings

The necessity to make findings on adverse matters was set out in part in BKE and further addressed in the case of Office of the Children’s Guardian v CFW [2016] NSWSC 1406. In that case His Honour Harrison J said that the first proposition is to determine whether a positive finding can be made or whether the allegations can be quickly addressed as groundless. If a positive finding can be made then that matter will generally have a decisive impact on the outcome of the application. In CFW the Court also referred to a lingering doubt where a positive finding could not be made and the matter was left open. The Court observed that this would count against the applicant.
However, in the case of Children’s Guardian v CKF [2017] NSWSC 893 Davies J observed that the final proposition from CFW cannot be correct. At [56] the Court observed:

56. With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or “a lingering doubt or suspicion” counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children.

We note that since those cases the Court of Appeal in the case of CXZ has reinforced the matters about whether there is any practical need to make findings on every or specific allegations when the Tribunal is assessing overall risk. As Simpson AJA points out at 79 of CXZ set out at [90] above when noting that the language of M v M:

..requires the Tribunal to determine “whether on the evidence” (and that means the whole of the evidence) the applicant poses a risk to the safety of children if a clearance is granted to him.

In respect of the criminal allegations we adopt the findings to the extent that we can as set out at [99] – [104] above. In our view it was not possible to test that evidence further in the scope of the hearing, nor is it particularly useful in assessing EMS’s risk today.

Finding as to risk

Based on a consideration of all of the evidence, we are not satisfied that the applicant (EMS) currently poses a real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we find that the applicant does not pose a risk to the safety and well-being of children and young persons. The Tribunal had the benefit of observing EMS over a number of hours as he gave his evidence in a candid manner without assistance or prompting.
Other than the trigger matter, there was no evidence of any direct risk to children in his behaviour. However in making this observation we note that if his behaviour occurred in the presence of children then it would be likely to cause significant harm to them. However there are no adverse matters in the intervening eight years upon which we place any weight.
We note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act.

Section 30 (1A) consideration and findings

Having made the finding that we have, we are required to have regard to this section.
The section requires the reasonable person to allow his or her child to have direct contact with the affected person that was not directly supervised by another person whilst engaged in child related work. In addition the section requires that the making of the order be in the public interest.

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

In our view a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. As in the Victorian cases that we refer to below we are of the view that a reasonable person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk.
Particular regard would be had to the conduct of the applicant in the intervening years and the findings of the expert witness as to the applicants level of risk following limiting or abstaining from alcohol.
A reasonable person whilst approaching the matter with some caution would, in our view, find that any risk was insufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A). We note that it could be argued that some remaining concerns might arise because of the context and circumstances of the conduct in the past (violence), however the reasonable person would acquaint themselves with the references (which are afforded some weight) and would determine that in respect of this section, those references provide positive evidence of pro-social matters concerning EMS. In that regard they would be comfortable in allowing EMS to engage in child related work today and in the future.
The reasonable person is required to consider the matter objectively and in our view would reach a similar conclusion to the Tribunal.
We note that the case of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:

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

In EMS’s situation a reasonable person would be aware of the circumstances of the evidence before us, and as a result, we find 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
The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

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

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

In our view there is nothing contrary to the notion of the public interest in the granting of a clearance in this matter. We find that the balancing of the applicant’s right to engage in his profession as a business holder which provides services to benefit the health of adults and children through exercise and sporting matters in a regional community now or in the future, contrasted with the protection of children, are in this instance complementary and in the public interest, as the issuing of a clearance would not pose an unjustified risk to the safety of children.
EMS’s evidence indicated that he now has significant insight into his past behaviours. He stated in his evidence that he believed that you could advertise your strengths as much as you like but people base their assessments on the way that you act. EMS indicated cogently and in our view honestly to the Tribunal that he knows the things to avoid and that he does not want to be going out drinking in those environments.
Consistent with the reasoning in PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 we believe that it is in the public interest to grant the clearance. We note again given our finding under s 30 (1) that EMS’s level of risk is deemed to be equal to that of any member of the community.
As a result we find that it is the public interest to grant the clearance.

Conclusion

For the reasons set out above, we reach the following conclusion.
The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that EMS does not pose a risk to the safety and wellbeing of children.
In our view, having regard to all of the material before the Tribunal, the applicant does not currently pose a risk to the safety of children.
It therefore follows that the correct and preferable decision is to set aside the decision of the respondent and the applicant be issued with a Working with Children Check Clearance.

Orders

Time for the applicant to lodge his application for Administrative Review is extended to 5:00pm 20 November 2020 pursuant s 41 of the Civil and Administrative Tribunal Act 2013.
The decision of the respondent dated 14 April 2020 to refuse the applicant’s Working With Children Check Clearance is set aside.
The respondent is to grant the applicant a Working With Children Check Clearance.

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

Registrar

Decision last updated: 14 January 2022

Medium Neutral Citation:	EMS v Children’s Guardian [2022] NSWCATAD 15
Hearing dates:	22 September 2021
Date of orders:	14 January 2022
Decision date:	14 January 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M Bolt, General Member
Decision:	(1) Time for the applicant to lodge his application for Administrative Review is extended to 5:00pm 20 November 2020 pursuant s 41 of the Civil and Administrative Tribunal Act 2013. (2) The decision of the respondent dated 14 April 2020 to refuse the applicant’s Working With Children Check Clearance is set aside. (3) The respondent is to grant the applicant a Working With Children Check Clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v CKF [2017] NSWSC 893 Children's Guardian v CXZ [2019] NSWSC 1083 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 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 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 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Category:	Principal judgment
Parties:	EMS (Applicant) Children’s Guardian (Respondent)
Representation:	Solicitors: Applicant Self-Represented Crown Solicitor (Respondent)
File Number(s):	2020/00333135
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.