FBC v Children's Guardian - [2021] NSWCATAD 286

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FBC v Children's Guardian [2021] NSWCATAD 286
Hearing dates: 15, 16 December 2020
5 March 2021
19 April 2021
12 May 2021
Date of orders: 29 September 2021
Decision date: 29 September 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
R Royer, General Member
Decision:
1) The decision of the Children’s Guardian on 18 December 2019 to refuse the Working with Children Check Clearance under section 18(2) of the Child Protection (Working with Children) Act 2012 is confirmed.
2) 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. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
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.

Catchwords:
ADMINISTRATIVE LAW-review under section 27(2) Child Protection (Working with Children) Act 2012- charges under section 61M(2) Crimes Act 1900 (NSW) commit an act of indecency with a person under the age of 16 years, and an attempt to commit an act of indecency with a person under the age of 16 years – DPP determines not to proceed with the charges and the criminal proceedings are then discontinued - Working With Children Check Clearance applied for by applicant in 2018 - refusal after risk assessment - where paramount concern is protecting children from child abuse - onus of proof in a review under section 27- whether finding on the balance of probabilities is able to be made that the alleged events occurred - whether there is an unacceptable risk of harm – whether a real and appreciable risk is posed by the applicant to the safety of children.

Legislation Cited:
Administrative Decisions Review Act 1997(NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)

Cases Cited:
ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKV v Children’s Guardian [2015] NSWCATAD 65
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
Browne v Dunn (1893) 6 R 67 (HL)
BYR v Children’s Guardian [2013] NSWADT 310
BZU v Children’s Guardian [2016] NSWCATAD 3
Carr v Simnovic (1980) 26 SASR 263
CGR v Office of Children's Guardian [2018] NSWSC 26
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v BQJ [2016] NSWSC 869
Children’s Guardian v CFW [2016] NSWSC 1406
Children’s Guardian v CKF [2017] NSWSC 893
CJT v Office of the Children’s Guardian [2016] NSWSC 738
CLK v Children’s Guardian [2016] NSWCATAD 183
Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v VR [2012] NSWSC 1385
CSZ v Children’s Guardian [2017] NSWCATAD 57
CXZ v Children’s Guardian [2020] NSWCA 338
Deiter & Deiter [2011] FamCAFC 82
Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856
GR v Department of Communities and Justice [2021] NSWSC 1081
Greyhound Racing Authority v Bragg [2003] NSWCA 388
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378
Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344
Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
La Macchia v Minister for Primary Industry (1986) 72 ALR 23
LA v Commissioner for Children and Young People [2012] NSWSC 1454
M v M [1988] HCA 68; 166 CLR 69
Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395
New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173
NU v NSW Secretary of Family and Community Services [2017] NSWCA 221
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
R v Commission for Children and Young People [2002] NSWIR Comm 101
Re A Solicitor’s Clerk [1957] 1 WLR 1219
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR
Re Sophie (No 2) [2009] NSWCA 89
Roberts v Balancio (1987) 8 NSWLR 436
Robertson v City of Nunawading [1973] VR 819
Secretary, Department of Justice v LMB; Secretary, Department of Justice v P M Y [2012] VSCA 143
SL v Secretary, Department of Family and Community Services [2016] NSWCA 124
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
YG & GG v Minister for Community Services [2002] NSWCA 247
ZZ v Secretary, Department of Justice [2013] VSC 267

Category: Principal judgment
Parties: FBC (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
M Windsor SC with M Darian-Smith (Applicant)
V Hartstein (Respondent)
Solicitors:
DPH Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2020/0004957
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. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 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 is known by the pseudonym “FBC” in these proceedings in order to protect the identity of the applicant. Disclosure of the identity of FBC would also identify persons associated with the applicant which is not in the interests of those children and young persons. It is appropriate to protect the identity of the applicant with a non-publication order and use of the pseudonym.
On 17 January 2014 the applicant applied for a Working with Children Check Clearance and was granted a clearance on the same day because he had no criminal history or other matter suggesting that he posed a risk to the safety of children.
The applicant was initially charged with 3 counts of indecent assault victim under authority and one count of cause child under 14 to participate in child prostitution in November 2016. These charges were subsequently amended to 4 counts of indecent assault person under 16 years (under section 61M(2) of the Crimes Act 1900 (NSW)) and then later discontinued.
On 22 October 2018 the Office of the Director of Public Prosecutions directed proceedings against the applicant be discontinued because of inconsistencies in the complainant’s evidence.
On 7 November 2018 the applicant applied for a Working With Children Check clearance (“WWCC”) and on 18 December 2019 it was refused. The applicant nominated religious services as his child related employment.
On 28 November 2018 the applicant was advised of the imposition of an interim bar and the risk assessment process.
On 19 November 2019 the applicant was sent a Notice of Proposed Refusal and Reasons for Proposed Refusal. The applicant was then provided the opportunity to submit further information for consideration by the Children’s Guardian. The applicant provided further information which was considered by the Children’s Guardian.
On 18 December 2019 the Children’s Guardian wrote to the applicant and informed him that his application was refused.
The respondent determined that the applicant poses a real and appreciable risk to the safety of children. This was a decision under section 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”)
FBC filed in the Tribunal an application for review under section 27 of the Act on 7 January 2020 concerning the decision of the Children’s Guardian, as stated on 18 December 2019. That decision is the subject of this review. The application for review under section 27 of the Act in the Tribunal was filed within time.
The respondent opposes the application.
The Act initially came into force on 15 June 2013.
The Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) (“2018 Amendment Act”) was given assent on 18 April 2018 and relevantly for this review the amendment to subsection 30(1)(h) and insertion of subsection 30(1)(i1) of the Act both commenced on 1 June 2018. Section 5B of the Act was also inserted at the same time.
The applicant was subject to a risk assessment by reason of section 14 and section 15 of the Act (clause 1 (1) (b) of Schedule 1) because the Children’s Guardian considered it necessary to conduct a risk assessment.
The application for review was heard by the Tribunal on 15, 16 December 2020, 5 March 2021,19 April 2021 and oral submissions on 12 May 2021.
The applicant was asked questions by General Member Ms Royer on 16 December 2020 which elicited that the applicant, if granted a clearance, would expect that he would be restored to his former status and take-up responsibilities again in the Church. The applicant also acknowledged that due to his age that would be in a reduced capacity.
The review will comply with the Act provided that the matters which must be considered in section 30 of the Act are taken into account: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.
There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children’s Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.
In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998 (NSW). It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.
The Tribunal may not lawfully attach conditions which would be permitted by the legislation effectively for the grant of a conditional clearance for this and the additional reasons set out in this decision. A conditional grant of a clearance for the purpose of allowing the applicant to work with conditions and in the chosen area is not permitted by the legislation. Thus a determination in favour of the applicant cannot be made upon conditions.
An order has been earlier made under section 64(1) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. That order is continued and made in accord with the current practice of the Tribunal.
In summary, after carefully considering the voluminous material relied upon by the parties, the Tribunal has determined that the applicant should not be granted a Working With Children Check clearance for the reasons which follow.

The evidence relied upon in the hearing

In addition to the Application filed annexing the decision refusing the Working With Children Check Clearance, the applicant and respondent relied upon documents which were tendered and marked as Exhibits as follows:

Affidavit of the applicant dated 29 June 2020 (and folder of documents): Exhibit A1;

Affidavit of the applicant’s wife dated 8 July 2020: Exhibit A2;

Submissions of the applicant received 23 November 2020: Exhibit A3;

Documents produced by Carroll & O’Dea on 20 May 2020 in reply to a summons issued by the applicant: Exhibit A4;

Documents served by the applicant selected from those produced under summons by Carroll & O’Dea: Exhibit A5;

Further documents produced by Carroll & O’Dea in reply to applicant’s summons: Exhibit A6;

Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997: Exhibit R1;

Further documents filed by the respondent (investigation report): Exhibit R2;

Additional documents filed by the respondent: Exhibit R3;

Submissions on behalf of the respondent: Exhibit R4.

Additional written submissions were provided by both parties at the conclusion of the evidence and oral submissions were made on 12 May 2021. The transcript of the earlier hearing dates was helpfully obtained by the parties and made available to the Tribunal.
The material relied upon by the parties in evidence has been considered and where appropriate that evidence is referred to in these reasons.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact is determined upon the civil standard of proof which is on the balance of probabilities.
The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]:

“…For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.”

This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.
Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]:

“Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct.”

The Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 (“Bronze Wing”) at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted:

“[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36].

[72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test.

…

[74]Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party.”

The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 (“Karakatsanis “) at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis:

“[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law.

[37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be ‘comfortably satisfied’ of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting ‘a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct’. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])]

[38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).]

‘The notion of ’inexact proof, and indefinite testimony or indirect references [scil. inferences]’ needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.’

[39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present.”(footnotes and references included)

The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017 after granting leave to appeal, dismissed the appeal from Justice Button’s decision and orders in Bronze Wing.
The Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil standard of proof in determining a factual matter: CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61].
The effect of the Act and the ‘practical onus’ which falls on a party notwithstanding the principles referred to in the previous paragraphs of these reasons is as the Act states in section 27(4):

“An applicant must fully disclose to the Tribunal any matters relevant to the application.”

The initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that:

“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.” (Citations omitted)

The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are also referred to in the helpful submissions and these reasons necessarily involve some repetition of previous statements made in earlier decisions, so that the legislative basis of this particular decision is transparent and identified for the parties.
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows:

"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."

There is no definition of “child abuse” contained in the Act. The Children’s Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

is guilty of an offence.”

The section was amended with effect from 4 February 2019 to include an additional maximum penalty of 2 years imprisonment, or both 200 penalty units and 2 years imprisonment. For present purposes that is not relevant to this application but shows that it is a matter which may result in imprisonment upon conviction.
The objects of the Act are set out in section 3 which provides:

"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."

"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
"Conviction" as defined in section 5 (1) of the Act “includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.” That is not the circumstance in relation to the applicant because he has not been convicted of an offence. The applicant was acquitted in 2009 when he was charged with an offence under then section 61N(1) of the Crimes Act 1900 (NSW), that is, commit an act of indecency with a person under the age of 16 years,.
The definition of "risk to the safety of children" is a reference to a real and appreciable risk to the safety of children: section 5B of the Act.
Pursuant to section 14 of the Act a person becomes subject to an assessment requirement in the circumstances referred to in the section which is as follows:

14 Assessment requirements

A person is subject to an

"assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.

The applicant is subject to an assessment requirement because of charges listed under clause 1(1)(b) and 1(2)(b) of Schedule 1 of the Act.
Pursuant to section 14 and section 15(1) of the Act the Children’s Guardian must conduct a risk assessment of the applicant. The circumstances in which the Children’s Guardian may conduct a risk assessment are not limited by the reasons set out in subsection 15 (1) or subsection 15 (2). The section relevantly provides as follows:

“15 Assessment of applicants and holders

(1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder.

....”

The hearing before the Tribunal is therefore pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act does not apply to this decision: see section 27 (7) of the Act.
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, 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 test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523.
The Tribunal is required to follow the decision in the Supreme Court BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [30]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in the often-cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order:

“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 also not necessary for the Tribunal to make any findings that allegations not the subject of convictions in fact occurred: Children’s Guardian v BQJ [2016] NSWSC 869 at [64] per Button J.
In Office of the Children’s Guardian v CFW [2016] NSWSC 1406, Harrison J at [14]-[17] considered that the Tribunal should first consider whether positive findings could be made about any alleged acts of wrongdoing on the balance of probabilities or secondly, whether the Court or Tribunal has “no hesitation in rejecting the allegation as groundless”. A positive finding that something occurred will have a significant impact upon the ultimate decision. Even if there is no positive finding able to be made on the evidence presented, the Tribunal is required to consider questions of risk which may be indicated by all of the facts. In Children’s Guardian v CKF [2017] NSWSC 893, Davies J stated that whether a finding is made or not is a factor which is to be weighed up in assessing whether the person poses a risk to safety of children.
The Court of Appeal has more recently considered the issues relating to risk in CXZ v The Children’s Guardian [2020] NSWCA 338. It is instructive to extract from the decision of Simpson AJA (with whom McCallum JA agreed) at [56]-[59]:

In Tilley v Children’s Guardian [2017] NSWCA 174 Basten JA (with the agreement of Meagher and Leeming JJA) referred to M v M and said at [34]:
“The Court noted that some allegations might be seen to be well-founded, while others may be seen as groundless. However, the Court accepted that there would be allegations falling into an intermediate category which were nevertheless relevant to the assessment of future possibilities or likelihoods, which lay at the heart of the Family Court’s function in determining appropriate orders with respect to custody and access, for the welfare of a child.”
None of these decisions endorses the proposition that, in respect of every allegation raised by the Children’s Guardian against an applicant for a clearance, the Tribunal must engage in the three-step process for which the respondent contends. The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.
It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.
The High Court did not, in M v M, have in mind a case such as the present where a series of disparate allegations are presented as a basis for refusing a clearance. It merely referred to allegations that “the father had sexually abused the child”. There was no indication of the number of times on which the abuse was alleged to have occurred, nor the nature of the abuse alleged, other than that it was of a sexual nature. Certainly the High Court did not suggest that each such allegation ought to have been assessed and determined serially. Yet that is the effect of the proposition now being advanced on behalf of the respondent.
1. In NU v NSW Secretary of Family and Community Services [2017] NSWCA 221, Beazley P (McColl JA and Schmidt J agreeing) stated at [55]-[59]:
However, as the High Court pointed out in M v M at [22], an inability of the court to make a positive finding of abuse does not conclude the question of the appropriate order to be made, in that case involving custody or access to a child, where the paramount consideration is the “best interests of the child”. The same position applies to the appropriate order to be made under the Care and Protection Act. Having regard to these principles, the primary judge was required to assess the evidence to determine whether K would be exposed to an unacceptable risk of sexual abuse if restored to the care of her parents including her father.
NU’s particular complaint is that he was denied procedural fairness, whether that be pursuant to the rule in Brown v Dunne or some more general principle of procedural fairness, in circumstances where his denial of sexual abuse was not the subject of cross-examination. It is well established that a failure to afford procedural fairness, where there is a requirement to do so, constitutes error of law which is jurisdictional in nature: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [26]-[42] per Gaudron and Gummow JJ (Gleeson CJ agreeing); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [213] per Kirby J; Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 186 per Handley JA.
It is also well established that a finding made in the absence of cross-examination may involve a denial of procedural fairness: see rule in Browne v Dunn. The meaning of the rule in Browne v Dunn was explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 at 16:
“It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.”

There is a clear corollary of the rule, namely, that if a witness is on notice of the allegation upon which a party intends to rely and is on notice that his or her evidence is contested on that issue, the rule does not mandate that the witness be cross-examined on the matter. This was explained in Browne v Dunn by Lord Herschell LC at 71, who pointed out that there was no obligation to raise such a matter where it is:
“… perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling … All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”

See also West v Mead [2003] NSWSC 161 per Campbell J at [94]-[97].

…

In the present case, it is unnecessary to determine whether there would have been a denial of procedural fairness had NU not been cross-examined on his sworn denials of having sexually assaulted J. Nor is it necessary to determine whether there is some other or additional principle of procedural fairness that ought to have governed the conduct of the matter. NU was clearly on notice that the allegations of sexual abuse preceding the alleged occasions in March 2013 were in issue.
The evidence before the Children’s Court and on appeal in the District Court included the JIRT interview and the transcript of J’s cross-examination in the criminal proceedings, which included extensive cross-examination on her allegations of earlier abuse occurring over a number of years. It also appears that no application was made that J give oral evidence in either court. The Court was informed that it is unusual for a child witness to be required to attend to give oral evidence.
1. The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children’s Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children’s Guardian at [33]. The reasoning behind the Tribunal’s determination is set out in these reasons.
2. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.
3. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.
4. The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.
5. In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.
6. The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following:

"All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."

In the following paragraph the Minister stated:

"While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."

As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.
In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states:

"Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."

If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.
It is the Tribunal’s assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight, are not determinative of the current assessment of risk on the whole of the information before the Tribunal. Additionally, the applicant in this matter does not seek an approval subject to conditions.

The Issue

The primary issue before the Tribunal in this application is what the correct and preferable decision is, having regard to the material before the Tribunal, in relation to the refusal to grant a Working with Children Check Clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.
There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].
The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

Considerations and the Evidence

The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in sub sections 15 (4) and 15 (4A) of the Act which are more aptly descriptive of that process than is sub sections 30 (1) and 30(1A) of the Act. It is relevant to note that the factors contained in the subsections address the same considerations expressed in slightly different language.
Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to and consider both sections 30 (1) and section 15 (4) considerations as required by both sections.
Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.
Section 15 of the Act relevantly provides as follows:

15 Assessment of applicants and holders

.....

(4) In making an assessment, the Children's Guardian may consider the following:

(a) the seriousness of any matters that caused the assessment in relation to the person,
(b) the period of time since those matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time it 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 or of any other matters that caused the assessment 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 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.

(4A) The Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children's Guardian is satisfied that:

(a) 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 the applicant was engaged in any child-related work, and
(b) it is in the public interest to make the determination.

(5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.

Section 30 of the Act relevantly provides in relation to this application as follows:

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.

(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.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter.

Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is recited under subheadings referring to the required considerations under the Act.
Also, as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant and the circumstances around the applicant’s conduct: section 63 of the Administrative Decisions Review Act.

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

The applicant is not a disqualified person. The applicant was not convicted of any offence. The refusal of a clearance and the prior imposition of an interim bar occurred after the notification of, and then an assessment of the matters which are also considered in this application for review with the addition of further material provided in support of the grant of a clearance.
The applicant is an ordained minister in a religious organisation which is a recognised Church located in Sydney and has been suspended from duty since November 2016 when the allegations of inappropriate behaviour were raised. The applicant was born in 1944 and worked as a dentist for many years. He then became a minister in the church. The applicant is married with children and now grandchildren. Since 1984 the applicant has worked as a minister in the church and has also been involved in missionary work for the church. That missionary work has taken the applicant to various places in the Middle East. The applicant is fluent in a number of languages other than English. The applicant has worked in Yemen, Bangladesh, Papua New Guinea, Asia and Pacific. The applicant was also on the Council of a religious secondary high school located in Sydney. As part of his work for the church the applicant lived in a house adjacent to the church in a suburb of Sydney. The applicant resided in that accommodation from 1984 until late 2015 when he and his family moved. While they lived in that accommodation refugees from other parts of the world resided with them.
The applicant provided pastoral, financial, accommodation and childcare assistance to a particular refugee family between 2006 and 2016. The applicant considered himself as a “grandfather” to the children in this family. The family consisted of the father and 2 children, one male and the other female. The female child is older than the male child. Following the birth of the younger child their mother died. They lived in an African country prior to coming to Australia. The father remarried a woman from a different African country while they were living in Sydney. It is said that the children did not get along with their stepmother and support was provided to the father and the children by the applicant and through his church community.
This particular refugee family arrived in Australia in November 2006 with limited English language skills and few personal contacts. The male child will be referred to in these reasons as “C” born in 2004 and the female child born in 2002 will be referred to as “L”.
On 18 November 2016 the Children’s Guardian became aware that the applicant had been charged on 17 November 2016 with 3 counts of indecent assault of a victim under authority and one count of cause child under 14 to participate in child prostitution. As a result, the Children’s Guardian cancelled the applicant’s Working with Children Check Clearance pursuant to section 23 of the Act. The charges were subsequently amended. In April 2018 the applicant was indicted/charged with 4 counts under section 61M(2) of the Crimes Act 1900 (NSW), alleging that he assaulted and committed an act of indecency on a child under the age of 16 years in relation to 3 of the counts, and in relation to one of the indicted charges it was alleged that the applicant assaulted and attempted to commit an act of indecency a child under the age of 16 years. The charges related to the child C during a period of time when the child was alleged to have been 8 or 9 years up until 12 years of age.

The applicant participated in an electronically recorded interview with the police in November 2016. When the charges/indictments were brought against him in April 2018 the applicant was incarcerated overnight until he obtained bail.
The DPP determined not to proceed with the indictments after evidence was given by C and L in a pre-recorded hearing at the District Court in June and August 2018. The children were cross-examined. A few days after that evidence had been given representations were made on behalf of the applicant for the DPP to terminate the proceedings. The trial was set down for hearing over 7 days to commence late October 2018. The charges were withdrawn and the matter was last heard in October 2018 a few weeks before the trial was due to commence. The District Court was told by the representative for the DPP that there had been a direction that there would be no further proceedings. The Court was asked to note that direction from the DPP and to vacate the trial date. The trial date was vacated.
The applicant cooperated with the police prior to being charged. The applicant has always maintained his complete denial that the alleged offences occurred.
The Church organised for an investigation report by a senior solicitor to be carried out on the instructions of the Conduct Protocol Unit. The applicant rejects the findings of that report and each of the allegations which are the subject of that report. It is submitted by the applicant that the report does not establish any finding of fact and to the extent that the Children’s Guardian relied upon it, the report “should not be accorded any or little weight in the determination of the question of the applicant’s suitability” to hold a clearance.
If the applicant had been convicted of the offences with which he was charged he would be a “disqualified person” for the purposes of the Act, and accordingly the offences are serious offences and the conduct alleged is serious misconduct.
The applicant was familiar with the Church’s policies and codes of practice concerning sexual abuse, sexual exploitation, sexual misconduct and the boundaries by which he was required to abide. The applicant was required to comply with the code of conduct titled “Breaking the Silence”. Child sexual abuse is defined by the code of conduct as: “…involvement in sexual activities with anyone who is older, bigger, in authority or perceived authority or more powerful where the child or young person is unable to give informed consent… This includes but is not limited to touching in a sexual way, masturbating,.. kissing, unwanted or unnecessary touching and overly long hugs…”
The applicant was aware and conceded in his evidence that any sexual behaviour between a minister and a parishioner or person giving pastoral care and a recipient of the care was a breach of the code of conduct titled “Breaking the Silence”.
It was also the fact that sexual exploitation was referred to in the code of conduct as being “any form of sexualised behaviour with an adult, child or young person, whether or not there is consent and regardless of who initiated the behaviour, whether that behaviour is contrary to the word of God. This includes… Sexualised behaviour with a person below the age of consent, sexualised behaviour with a person with whom there is a supervisory, pastoral care, or counselling relationship,…”.
In his electronically recorded interview with the police the applicant acknowledged and did not deny having a consensual sexual relationship with the father. In cross-examination on 15 December 2020 the applicant agreed that what he told the police, about a sexual relationship with the father, was the truth. The admitted detail of the sexual relationship is not clear from the applicant’s other evidence. The father was supported by the applicant in a pastoral sense as a parishioner and by the provision of physical support including accommodation for him and his children. The applicant described his sexual orientation as “[b]asically normal, with some, maybe some aspect of bisexuality that sometimes has appeared. But basically it’s sexual relationship with my wife.” Exhibit R1, p 455, Q388.
There was a later falling out in the relationship between the applicant and the father. It was submitted on behalf of the applicant that the sexual relationship between the applicant and the father of the children is irrelevant to an assessment of risk. It is also clear from the submissions made on behalf of the applicant that the reference to the applicant’s sexual preference in relation to his sexual relationship with the father of the children was not something that was investigated by the report writer on behalf of the church as part of his brief. The applicant’s wife was unaware of the sexual relationship between the applicant and the father of the children, although she was aware of an incident where the applicant applied oil to the father’s skin which she did not consider to be sexual behaviour. The fact that the applicant kept this behaviour secret from his wife undermines the weight which can be given to her evidence in relation to her evidence about the allegations concerning alleged abuse of the children. In any event, it would appear that this sexual relationship was inconsistent with the applicant’s obligations as a Minister of the Church providing pastoral care whilst having a sexual relationship with his parishioner.
It was alleged by C that the applicant sexually and indecently assaulted him.
It was stated to the police that in 2013 the child C attended the local primary school. It was alleged that the applicant collected C from school and took him for tutoring conducted by the applicant on a Wednesday afternoon at a place other than the residence. At the conclusion of the tutoring it was said the applicant drove the child C to the residence. This is the residence adjacent to the church. The applicant and the child C sat at the kitchen table. The applicant allegedly asked the child C to come and sit on his lap to do his schoolwork. The child C walked around the table and sat on the applicant’s right leg and started doing his homework. The applicant allegedly took the child’s left hand and moved it in the direction of the applicant’s penis and putting it inside his pants so that the child C was touching the applicant’s penis. The child’s hand was alleged to have formed a circular shape over the applicant’s penis and the applicant caused him to move his hand up and down along his penis. While this was occurring it is alleged that the applicant stood up as did the child. The applicant is alleged to have loosened the strings of the child shorts and pulled them and his underpants down. The applicant is then alleged to have placed his hand on the child’s penis and rubbed it. The applicant is alleged to have ejaculated into the child’s hand. He allegedly told the child go and wash it off, which the child did. Upon his return the applicant allegedly told the child: “This is a covenant between me and you. Don’t tell anyone. If you tell anyone, or even your dad, something bad will happen to you.”
On a different date on a Thursday afternoon at about 3:30pm in 2013 it was alleged that the child had a shower at the applicant’s home. The child got out of the shower and walked to his bedroom with a towel wrapped around him. As he walked into his room the towel dropped, leaving him naked. The applicant allegedly appeared behind the child and wrapped his arms around him. The applicant is alleged to have put his right hand on the child’s penis and rubbed it for about 5 minutes. When he stopped he allegedly said: “This is between me and you, don’t tell anyone.” The applicant is alleged to have then provided the child with a sum of money either $20 or $30.
On a Thursday in early November 2016 it was alleged that the child C came home from school. He walked through the gate of the church compound and saw the applicant standing at the side of the house. The child greeted the applicant who allegedly hugged the child and then moved forward and attempted to kiss the child on the lips with his lips. This is alleged to have caused the child to move backwards and move his head.
On 17 November 2016 the child C disclosed to the police in a recorded interview 3 further incidents which are alleged to have occurred in 2014 in which the applicant touched the child on the penis after tutoring.
The child L disclosed that the applicant had also sat her on his lap on occasions when she was in primary school. On these occasions he touched her on her chest, stomach and thighs. She did not disclose any conduct alleged to be a sexual offence.
In an Investigation Report written by a solicitor at the request of the Conduct Protocol Unit of the Church, allegations about the applicant’s relationships and conduct with the child C, the child L, as well as another child, and the father of child C and L were identified and investigated. The request for the investigation was conveyed through the lawyers for the Church in March 2019 and it was identified that the report was to be provided to the Ombudsman’s Office and the Children’s Guardian. The background facts and the allegations were summarised in the letter of instructions from the lawyers to the investigator. This report was dated 1 October 2019. The report writer interviewed a number of people and had access to documents some of which were directly provided by the applicant. The author of the report was cross-examined by the legal representative for the applicant in the hearing before the Tribunal on 16 December 2020 and 5 March 2021.
The report to the Church was apparently not acted upon by the Church other than to provide it to the Children’s Guardian. Certainly, a senior member of the Church who gave character evidence for the applicant was not aware of its contents or findings. The submissions of the applicant refer to the 23 allegations the subject of the report. The applicant clearly rejects the findings of the report.
The Tribunal is required to consider the evidence placed before it to determine for itself whether the allegations have been sufficiently established on the relevant standard of proof, as set out earlier in these reasons. The report provided and written by the solicitor is not conclusive of the issues to be considered by the Tribunal and is only part of the evidence before the Tribunal.
The applicant submits that the report’s conclusions and findings were made in error and denied procedural fairness to the applicant. The report writer made a subjective assessment of credibility of the child C and it is said did not engage with the possibility that the child was not credible. There are inconsistencies and discrepancies in the evidence given by the child and his sister. The report is said to have not engaged with the evidence which contradicted the child C. Although the assessment of whether there was reportable conduct is not the same as an assessment of guilt or innocence in a criminal trial, there were matters not addressed by the report writer which creates some legitimate concern about the validity of the conclusions made. The report writer endeavoured to do his best with the material with which he was provided and conducted his investigation within the limitations imposed by his brief. The Tribunal has access to more evidentiary material and the benefit of extensive submissions and evidence on behalf of the applicant than was available to the report writer.
The Children’s Guardian relies upon a finding by the report writer that both children had walked into the bedroom while their father was engaged in sexual activity with the applicant. The Children’s Guardian also relies on other findings in the report. The report writer clearly preferred the statements given by the children over those given by the applicant where there was any inconsistency, and accepted the father’s evidence as credible and reliable in relation to the sexual activity between the applicant and the father (which activity and relationship now appears to have been conceded). The applicant in his affidavit denies having sexual intercourse with the father, denies touching or massaging his private parts, but then inconsistently agrees that when the police asked him he agreed at Q371 that he and the father “sometimes” engaged in sexual acts during the past 10 years, he was telling the truth. When the applicant was asked by the police about how the sexual acts came about the applicant responded at Q382: “Don’t, look, don’t even go over the matter, just, it’s a very sad story, but anyway, let them be. I’m not denying it. But I’m saying to let it be.”
It is submitted on behalf of the applicant that there is a lack of any reliable corroborated evidence in support of the allegations made by the child C against the applicant. It is submitted that there should be a finding that the allegations against the applicant are “groundless”. It is submitted on behalf of the applicant that the DPP discontinued the criminal proceedings against the applicant because of the inconsistencies between the evidence of C and L in their respective cross examinations before Judge Traill.
The purpose of the risk assessment is to be protective of children and not punitive of the applicant. The risk assessment identifies factors which are relevant in determining the risk the applicant may pose to children. The legislature has included this factor as a matter relevant to the assessment of risk. A realistic assessment of the seriousness of the conduct is necessary to understand the risk issue. The context is relevant to the assessment of risk.
The applicant maintained his denial of the allegations to his wife. During the long period of the marriage his wife was not aware of any allegation against the applicant having acted inappropriately with a child. The applicant asserted that no one had ever raised any questions about his suitability to work with children over a 50 year period of time until these allegations were raised.
The applicant identified that the electronically recorded interview with C undertaken by the police is inconsistent with the evidence given by L in the District Court. It is submitted that it is inconceivable that L would not have seen the applicant sexually interfere with C given the alleged positioning of both children on his knees. It is identified by the applicant that C says that L saw the applicant touch C’s penis. She denies that she saw that happen.
These inconsistencies between the children and their various statements at different times are of concern. There is sufficient concern that there was unlikely to be a finding of guilt. The difficulty is also that the ability to make a finding of fact on the balance of probabilities is contradicted by those inconsistencies. It is not possible in this matter to make a finding that the events alleged occurred.
The Children’s Guardian identified a number of additional inconsistencies in the evidence of the applicant, additional to the inconsistency between his affidavit and a statement to the police about sexual activity between the father and the applicant. The applicant admitted that when he said to the police and others that he had never picked up C to take him home from school, that was not correct.
The applicant also admitted to giving C a hug and kissed him on the cheek. This is not consistent with his affidavit evidence that he: “…never kissed or attempted to kiss him.” The applicant said in his oral evidence to the Tribunal on 15 December 2020: “…I gave him a kiss on the cheek and he didn’t do it- and he didn’t accept it. It was – something had happened. He came home from school, it was outside the Church yard. I can remember the detail because it’s raised by C. He didn’t say there were many occasions, he said on one occasion there was a specific event…” This was in breach of the Breaking the Silence document. It also appears to be corroborative of the allegation said to have occurred in early November 2016.
There are other instances of inconsistencies in the applicant’s evidence relied upon by the Children’s Guardian which are set out in the written submissions. The evidence of the applicant’s wife is inconsistent with some of the applicant’s evidence about the nature of the relationship he had to the children as being like a ‘grandfather’, which was denied by his wife. The children also stayed at their house in 2013 as well as 2014. This is contrary to the applicant’s evidence which relied upon an assertion that the child C had not stayed at his house in 2013. The evidence from the applicant about that is not convincing in any event.
The evidence of the persons relied upon as referees by the applicant cannot be given any significant weight. None of the referees considered the findings of the report commissioned on behalf of the Church.
It was not submitted by the respondent that the report commissioned by the church is in any way binding on the Tribunal. Although the report writer applied the civil standard of proof, he was more concerned about making findings of fact than making an assessment of risk.
The Tribunal found the report writer to be a diligent and honest witness who answered criticisms of his report in a considered and intelligent manner. The findings of the report writer cannot be disregarded due to the considerable effort the report writer made to provide an intelligible report to those who commissioned the report. Neither are the findings of the report writer to be given any significant weight in the Tribunal’s assessment of risk.
The fact that the criminal charges and the prosecution was discontinued is a relevant factor in assessing the factual basis for the allegations against the applicant. However, the criminal standard of proof applied to those proceedings. Again, the criminal proceedings were not concerned with an assessment of risk.
The question whether sexual abuse as alleged had or had not occurred, is not determinative of whether there was an unacceptable risk of harm. As referred to with approval in NU v NSW Secretary of Family and Community Services [2017] NSWCA 221, the relevant test is whether there exists an unacceptable risk of harm.
It is the Tribunal’s considered finding that there is an unacceptable risk of harm to the safety of children posed by the applicant on the basis of the allegations which cannot be discounted as groundless and which have at least in relation to one on them in part been corroborated (the kissing allegation). The other matters which entitle the Tribunal to find that there is an unacceptable risk of harm arises from the concerns about the behaviour of the applicant in breach of the code which applied to him that underline the failure of the applicant to confine his behaviour to the accepted boundaries. Specifically, the applicant kissed or attempted to kiss the child C and continued in a sexual relationship with his parishioner, the father of the children, without the knowledge of the wife of the applicant. These are matters upon which the applicant gave inconsistent or unconvincing evidence. The Tribunal considers that the applicant did not confine his behaviour to within those defined boundaries and appears to lack remorse for those matters. There is a distinct possibility that the allegations are truthful even though they are denied by the applicant.

The period of time since those matters occurred and the conduct of the person since they occurred

The alleged incidents were recorded to have occurred between 2013 to 2016.
The applicant has been charged with offences. The applicant has not been convicted of any criminal offence. The applicant has not been the defendant in any Apprehended Domestic Violence Order proceedings.
The applicant denies the offences alleged occurred and there is submitted on his behalf that there is no question as to his conduct since that period to be determined.

The age of the person at the time the offences or matters occurred

The applicant was aged between 69 to 72 years of age at the time of the matters which were alleged against him.

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

The child C was aged between 9 and 12 years at the time of the alleged conduct. The child L was 2 years older than the child C.
The Act requires protection of children until the age of 18 years.
The children were vulnerable because of their age.

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 the children is about 60 years. The ages of the victims were as set out previously and they were treated by the applicant as if they were his grandchildren who were living with him.

Whether the person knew, or could reasonably have known, that the victim was a child

The applicant knew that the alleged victims were children.

The person’s present age

The applicant is aged 76 years at the time of hearing.

The seriousness of the person's criminal history and the conduct of the person since the matters occurred

The applicant does not have a criminal record.
The applicant’s conduct has not attracted adverse comment or been the subject of any further investigation.
The applicant has denied the alleged conduct.

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

The applicant has not provided any expert assessment relating to risk.
The Tribunal is to form its own opinion about the likelihood of any repetition of conduct or risk in relation to the applicant, independent of any expert opinion.
An indicator of future behaviour generally is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person may prospectively behave. The applicant has allegations made against him of serious breaches of trust, crossing of boundaries, and sexual abuse. The applicant has not embarked upon a course of conduct to address any deficiencies in his own personality arising from those allegations.
There is no independent assessment of the risk by a psychologist or psychiatrist. The Tribunal is aware of the caution which should be attached to risk assessments by psychiatrists and psychologists and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 at [67] and BKV v Children’s Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children’s Guardian [2016] NSWCATAD 3 at [91]-[92].
As previously stated, it is not necessary for the Tribunal to make any findings that the behaviour asserted in the allegations in fact occurred: Children’s Guardian v BQJ [2016] NSWSC 869 at [64] per Button J.
In Office of the Children’s Guardian v CFW [2016] NSWSC 1406, Harrison J at [14]-[17], His Honour considered that the Tribunal should first consider whether positive findings could be made about any alleged acts of wrongdoing on the balance of probabilities or secondly, whether the Court or Tribunal has “no hesitation in rejecting the allegation as groundless”. A positive finding that something occurred will have a significant impact upon the ultimate decision. Even if there is no positive finding able to be made on the evidence presented, the Tribunal is required to consider questions of risk which may be indicated by all of the facts.
An assessment of risk has two elements. The first involves the prediction of the likelihood of the occurrence of an harmful event. The second consideration is the severity of the impact of such an event would have if it occurred, so that if the consequences of the event occurring will be significant that will have a greater bearing on the assessment of whether there is an unacceptable risk: Deiter & Deiter [2011] FamCAFC 82, at [61]; Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344 esp. at [66]; Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395.
The allegations concerning the applicant’s behaviour are not inherently improbable or unbelievable.
It is now settled that the proper test to be applied in proceedings in respect of risk is that of “unacceptable risk to the child”: M v M [1988] HCA 68 at [25]; NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 see supra. That case, M v M, dealt with past sexual abuse of a child but the principles there set out have been applied to other forms of harm, such as physical and emotional harm. It has been reiterated in a number of decisions that a positive finding of an allegation of harm having been caused to a child should only be made where the decision maker is so satisfied according to the relevant standard of proof, with due regard to the matters set out in Briginshaw. Nevertheless, it has also been applied law that an unexcluded possibility of past harm to a child or children is capable of supporting a conclusion that the child (or another child) will be exposed to unacceptable risk in the future from the person concerned: see M v M at [26].
It is also clearly the applied law that:

“Whether there is an ‘unacceptable risk’ of harm to children is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] Fam CA 1235. This is an exercise in foresight”: per Sackar J in GR v Department of Communities and Justice [2021] NSWSC 1081 at [195].

In Johnson v Page [2007] Fam CA 1235; (2007) FLC ¶93-344 the Full Court of the Family Court referred with approval to an analysis which helps to explain the High Court decision in M v M;

68. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:

1 The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

and thereafter expanded some points contained in the summary.

69. Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) …”

The applicant denies the conduct alleged and does not accept that his behaviour requires change. It is not known whether the applicant is capable of changing his behaviours.
If the alleged conduct was repeated in the future the impact upon children would be significant. The alleged sexual behaviour if it occurred in the future would have a devastating effect upon a child.

Any order of a court or tribunal that is in force in relation to the person

There was no current order of a court or Tribunal brought to the attention of the Tribunal.

Any information given by the applicant in, or in relation to, the application

The applicant has provided information including the documents marked as Exhibits.
It was not submitted that the applicant had failed to provide any relevant information. The applicant was cross-examined.
The applicant denied the substance of the allegations.

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

There is no relevant information provided in this category.

Any other matters that the Children’s Guardian considers necessary

The Children’s Guardian made submissions addressing those matters which the Children’s Guardian considers necessary.
The Children’s Guardian submitted that in the circumstances the correct and preferable decision is that the applicant poses a risk to the safety of children.

Consideration

The Act is designed to be protective of children and the Minister’s second reading speech identifies that there are a number of matters which may be relevant to an assessment of risk.
The behaviour alleged was beyond reasonable community norms, the alleged behaviour was exploitative, the alleged behaviour is part of a pattern of ongoing events, and the behaviour, if repeated, would do significant harm. There are no mitigating factors such as evidence of significant and sustained positive progress since the alleged behaviour occurred, the allegations of concerning behaviour is over a significant period, and there is no evidence that there has been a genuine and sustained effort to address the unacceptable risk of harm.
Remorse is not considered to be a factor that mitigates risk in this matter. The applicant has not shown any remorse for his alleged behaviours which have been reported to have occurred over a number of years and are clearly inappropriate behaviours which pose a risk to the safety of children in his care who he regarded as like his grandchildren.
The applicant stated that, if granted a clearance, would expect that he would be restored to his former status and take-up responsibilities again in the Church. The applicant also acknowledged that due to his age that would be in a reduced capacity if he is granted a Working with Children Check Clearance.
Having regard to all of the matters referred to previously in these reasons it is the Tribunal’s determination that there is an unacceptable risk of harm posed by the applicant. That unacceptable risk of harm can exist independently of a finding on the balance of probabilities that particular events have occurred: BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33]; Children’s Guardian v CFW [2016] NSWSC 1406; NU v NSW Secretary of Family and Community Services [2017] NSWCA 221.
The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk must give primacy to protective factors whilst balancing all of the risks which may be posed to children.
The Tribunal agrees with the reasoning in CHB v Children’s Guardian [2016] NSWCATAD 214 at [109]-[124] and the provisions of section 30 (1A) of the Act apply to this application.
The Tribunal is required to consider subsection 30(1A) of the Act in the event that the Tribunal considers that the applicant does not pose a risk to children. The finding of the Tribunal is that the applicant does pose a risk to the safety of children. Therefore, this provision does not apply to this matter.

Conclusion

There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]; Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.
As referred to previously in these reasons it is the Tribunal’s determination that there is an unacceptable risk of harm posed by the applicant. The evidence received by the Tribunal establishes that the Tribunal can be satisfied for the reasons expressed that the applicant does currently pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. There may be conditions which can be imposed which ameliorate the risk but the Tribunal is not empowered to make an order with conditions.
It is concluded on the balance of probabilities that having regard to the circumstances surrounding the alleged conduct by the applicant that the existence of a real and appreciable risk to children has not been disproven: see BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33].
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act, referred to in detail previously in these reasons, the correct and preferable decision having regard to the material before the Tribunal is that the applicant does pose a risk to the safety of children and should not have a Working with Children Check clearance. The decision of the Children’s Guardian should therefore be confirmed.

Order

The orders of the Tribunal are that:

The decision of the Children’s Guardian on 18 December 2019 to refuse the Working with Children Check Clearance under section 18(2) of the Child Protection (Working with Children) Act 2012 is confirmed.

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. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

It is noted that 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.

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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: 29 September 2021

Medium Neutral Citation:	FBC v Children's Guardian [2021] NSWCATAD 286
Hearing dates:	15, 16 December 2020 5 March 2021 19 April 2021 12 May 2021
Date of orders:	29 September 2021
Decision date:	29 September 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member R Royer, General Member
Decision:	1) The decision of the Children’s Guardian on 18 December 2019 to refuse the Working with Children Check Clearance under section 18(2) of the Child Protection (Working with Children) Act 2012 is confirmed. 2) 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. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 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.
Catchwords:	ADMINISTRATIVE LAW-review under section 27(2) Child Protection (Working with Children) Act 2012- charges under section 61M(2) Crimes Act 1900 (NSW) commit an act of indecency with a person under the age of 16 years, and an attempt to commit an act of indecency with a person under the age of 16 years – DPP determines not to proceed with the charges and the criminal proceedings are then discontinued - Working With Children Check Clearance applied for by applicant in 2018 - refusal after risk assessment - where paramount concern is protecting children from child abuse - onus of proof in a review under section 27- whether finding on the balance of probabilities is able to be made that the alleged events occurred - whether there is an unacceptable risk of harm – whether a real and appreciable risk is posed by the applicant to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW)
Cases Cited:	ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKV v Children’s Guardian [2015] NSWCATAD 65 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Browne v Dunn (1893) 6 R 67 (HL) BYR v Children’s Guardian [2013] NSWADT 310 BZU v Children’s Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 CGR v Office of Children's Guardian [2018] NSWSC 26 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v BQJ [2016] NSWSC 869 Children’s Guardian v CFW [2016] NSWSC 1406 Children’s Guardian v CKF [2017] NSWSC 893 CJT v Office of the Children’s Guardian [2016] NSWSC 738 CLK v Children’s Guardian [2016] NSWCATAD 183 Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v VR [2012] NSWSC 1385 CSZ v Children’s Guardian [2017] NSWCATAD 57 CXZ v Children’s Guardian [2020] NSWCA 338 Deiter & Deiter [2011] FamCAFC 82 Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856 GR v Department of Communities and Justice [2021] NSWSC 1081 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344 Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re A Solicitor’s Clerk [1957] 1 WLR 1219 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 Robertson v City of Nunawading [1973] VR 819 Secretary, Department of Justice v LMB; Secretary, Department of Justice v P M Y [2012] VSCA 143 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	FBC (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Windsor SC with M Darian-Smith (Applicant) V Hartstein (Respondent) Solicitors: DPH Lawyers (Applicant) Crown Solicitor (Respondent)
File Number(s):	2020/0004957
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. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 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.