FFC v Children's Guardian

[2022] NSWCATAD 209

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FFC v Children’s Guardian [2022] NSWCATAD 209

Hearing dates:

10 March 2022

Date of orders:

22 June 2022

Decision date:

22 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member (Legal)
J Herberte General Member (Community)

Decision:

The decision of the respondent dated 30 September 2021 to refuse FFC’s application for a Working With Children Check Clearance is affirmed.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk– future risk – evidence of behaviour that caused harm to children – insight – whether nature of response creates further risk – whether future response failings indicate of level of future risk

Legislation Cited:

Administrative Decisions Review Act 1997

Children and Young Persons (Care and Protection) Act 1998

Child Protection (Prohibited Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Child Protection (Working with Children) Regulation 2013

Civil and Administrative Tribunal Act 2013

Ombudsman Act 1974

Cases Cited:

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

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

BFC v The Children's Guardian [2014] NSWCATAD 90

BFX v Children's Guardian [2014] NSWCATAD 115

BJB v Office of the Children's Guardian [2014] NSWCATAD 111

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

BKE v Children’s Guardian [2015] NSWSC 523

Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336

CHB v Children’s Guardian [2016] NSWCATAD 214

Children’s Guardian v CKF [2017] NSWSC 893

Children's Guardian v CXZ [2019] NSWSC 1083

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

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

CXZ v Children’s Guardian [2020] NSWCA 338

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

M v M (1988) 166 CLR (HCA)

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

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

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

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FFC (Applicant)
Children’s Guardian (Respondent)

Representation:

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

File Number(s):

2021/00307633

Publication restriction:

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

REASONS FOR decision

Introduction

1. This applicant seeks administrative review of a decision by the respondent refusing her Working with Children Check Clearance (WWCCC). The clearance was refused because the respondent (the Office of the Children’s Guardian) was satisfied that she posed a real and appreciable risk to the safety of children.

2. The applicant is referred to as ‘FFC’ in these proceedings. FFC is the applicant's pseudonym used in these proceedings in conformity with an order made under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. In order to prevent constructive identification of the applicant some aspects of her background and related matters are referred to in general rather than specific terms. In this regard one of FFC’s former employer entities is referred to by a generic term in these reasons as set out below.

Procedural Background.

3. FFC applied for a WWCCC on 7 August 2015. On 30 October 2015 FFC was referred for a risk assessment pursuant to Schedule 1Cl 2 (a) of the Child Protection (Working with Children) Act 2012, (‘the Act’). This was because there were two workplace records indicating that FFC was the subject of sustained findings that she engaged in (sexual) misconduct involving a child.

4. Pursuant to s 15 (4) of the Act the respondent was required to conduct a risk assessment of FFC. That matter related to FFC allegedly engaging in sexual misconduct against her son in the period 1984 to 1994 when he was aged between 12 and 22 years.

5. In November 2015 the Children’s Guardian notified FFC that she was subject to an Interim Bar pending the outcome of the risk assessment. On 30 January 2016 following the risk assessment the Children’s Guardian notified FFC that she had been refused a clearance.

6. On 20 August 2020 FFC made a request under s 13A of the Act to lodge an early application for a clearance.

13A Embargo after refusal of application or cancellation of clearance

1. A person who is refused a working with children check clearance, or whose clearance is cancelled under section 23, is not entitled to make a further application for a clearance—

   (a)   until 5 years after the date notice of the refusal or cancellation was given to the person, or

   (b)   unless there has been a change of circumstances under which a further early application is permitted under this section.

2. A further early application is permitted if any of the following occurs after the date of the refusal or cancellation—

   (a)   proceedings that were pending at the date of the refusal or cancellation are withdrawn or dealt with without the person being found guilty of the offence,

   (b)   a finding of guilt is quashed or set aside,

   (c)   a finding the subject of an assessment requirement is quashed or set aside or otherwise expressly or impliedly ceases to have effect,

   (d)   the Children’s Guardian permits a person to make such an application.

(Emphasis added) Permission was required as FFC’s request was within five years of her earlier refusal.

7. On 1 September 2020 the Children’s Guardian advised FFC that she could lodge an early application for a Clearance and FFC duly applied on 9 September 2020. Consistent with the earlier application the Children’s Guardian conducted a risk assessment consistent with the matters set out at [3] and [4] above. An interim bar was imposed on 29 September 2020 pending a risk assessment.

8. On 10 August 2021 following the risk assessment the Children’s Guardian made a decision to refuse the request for a WWCCC and informed FFC of the refusal. On 29 October 2021 FFC applied to the Tribunal for an Administrative Review of the decision of the Children’s Guardian.

9. Having conducted the risk assessment from September 2020 to August 2021 the Children’s Guardian was satisfied that FFC posed a real and appreciable risk to the safety of children.

10. Having considered all of the evidence and material before us, and the matters set out in s 30 (1) and (1A) of the Act, for the reasons given below we are satisfied that FFC remains a real and appreciable risk to the safety and well-being of children.

11. As a result of this finding the decision of the respondent will be affirmed.

Risk background

12. The Children’s Guardian focused on the reports, which mandated (or triggered) a risk assessment. These reports being that between 1984 and 1994 FFC engaged in inappropriate conduct towards her son who was aged 12-22 years during this period. The conduct is alleged to have included kissing on the mouth, (allegation 1) FFC placing her hand on her son’s groin (allegation 2) and rubbing the son’s penis (allegation 3). The allegations / reported conduct included allowing the son to rub / fondle FFC’s breasts (allegation 4), allowing prolonged hugs to progress to rubbing bodies together (allegation 5) and finally an incident whereby FFC was alleged to have met her then adult son at her home and hugged and kissed him prior to performing oral sex on him (allegation 6).

13. These matters were disclosed by the applicant’s son (the complainant) in 2007. Because of the age of the complainant during the majority of the alleged conduct the former Department of Community Services (DoCS) was notified of the complaints. DoCS reported the matters to FFC’s then employers as FFC worked as a teacher in both the non-government and the government (Department of Education and Training – DET) sector. Both the non-government employer (‘NGE’) and the DET investigated the matters.

14. In late 2008 the NGE concluded their investigation and made findings that five of the six specific allegations were sustained. The allegation of FFC allowing the complainant to fondle her breasts during the indecent assaults was not sustained. The investigation found that all of the other matters other than allegation 4 - the prolonged physical hugging which occurred during allegations 2 and 3, were sustained. The investigation also determined that allegations 1, 2, 3 and 5 were considered sexual offences. The matter when the complainant was an adult (allegation 6) was considered sexual misconduct by the NGE investigation.

15. The investigation found that the evidence of the complainant was credible and that their evidence was not exaggerated or embellished. The complainant’s recollection of patterns of behaviour were specific and consistently sufficient in the absence of any contrary evidence to make findings on the balance of probabilities according to the NGE. FFC’s main rebuttal of the allegations in addition to her outright denial was that the complaint was a sexual pervert due to an addiction to pornography.

16. FFC had admitted during the investigation that on at least one occasion the complainant (as an adult) had come to her home and approached her and made overtly sexual advancements towards her. The NGE recommended that FFC have her permission to work as a casual teacher withdrawn and that any future application to seek work be refused. The NSW Ombudsman (with child protection reporting and investigation oversight) advised that the investigation was properly conducted.

17. In addition to the investigation and action taken by the NGE, the DET conducted their own investigation of the alleged conduct. Arising from their own separate investigation, the DET reached similar conclusions to those of the NGE. Allegations 1,2,3, 5 and 6 were reportable conduct as then defined in s 25(1) of the Ombudsman Act 1974. Allegation 4 was not deemed to constitute reportable conduct.

18. The DET made a number of conclusions about the allegations.

• They were of a historical and interfamilial nature,

• There was no direct corroborative evidence to support the allegations and the complainant had decided against pursuing matters with Police,

• FFC had denied all allegations however her responses are problematic in that not only has she failed to adequately address the allegations, but her responses could imply that some of the conduct occurred,

• The DET observed that on any reasonable assessment of the evidence and partial admission by FFC, it appears that FFC’s response at the time was inadequate (that being the response of a parent of a child needing to seek appropriate and expert intervention).

19. As a result the DET deemed that it would not be appropriate to engage FFC to teach in schools on a casual or other basis. And also recommended that FFC not be employed in any NSW Government school or TAFE. Sustained findings were made on allegations 1,2,3,5 and 6.

Jurisdiction of the Tribunal

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

3 Object of Act

The object of this Act is to protect children:

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

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

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

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

The application for administrative review

21. The grounds of the substantive application were brief:

That I have been unfairly and unjustly denied a WWC check.

22. More detailed grounds were provided in written material submitted by FFC.

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

The working with children legislative scheme

24. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

25. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: s 4 of the Act.

26. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

27. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1)(b) of the Act). A child related role is set out in s 6(3) of the Act.

28. Other provisions of the Act deal with assessment requirements, which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)). FFC was subject to a risk assessment as the respondent identified matters listed in Sch 1 of the Act as referred to above.

29. Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions. The section relevantly provides:

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

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

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

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

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

(5), (6)   (Repealed)

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

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

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

30 Determination of applications and other matters

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

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

(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,

1. 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.

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

(1A)   The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that—

(a)   a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

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

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

Burden of Proof

33. The jurisdiction of the Tribunal under s 27 of the Act has been found to be protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

34. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

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

33. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42], His Honour said:

'42   One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'

37. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal (ADT), in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

38. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].

39. We note that since the cases referred to above ‘risk’ has now been given a statutory definition in Act at s 5B by reference to ‘risk to safety of children’.

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

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

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

   (a)   any relevant factual material,

   (b)   any applicable written or unwritten law.

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

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

   (a)   to affirm the administratively reviewable decision, or

   (b)   to vary the administratively reviewable decision, or

   (c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

   (d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

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

The hearing

42. The matter was heard over one full day. Due to the COVID 19 pandemic the hearing occurred by AVL.

43. FFC gave evidence at the hearing, and was subject to cross-examination. As FFC was not legally represented the Tribunal commenced with some preliminary questions to obtain FFC’s evidence in chief prior to a lengthy cross-examination by the Children’s Guardian representative. The Tribunal also explained the procedure of the Tribunal to FFC.

Written Evidence

FFC’s written material

44. FFC filed a number of written items in support of her application.

1. Exhibit ‘A 1’: the application for administrative review attaching a typed statement of two pages addressing the refusal dated 28/10/2021 (and also including eight attachments comprising: Notice of Refusal, personal references x 3, National Police Certificate 2010 and 2016, child protection training courses x 2),

2. Exhibit ‘A-2’ Further typed statement FFC 14/12/2021 with 16 attachments comprising personal references, duplicates of police certificates and training records from ‘A-1’ and typed statement 27/8/2021.

3. Exhibit ‘A-3’ Typed letter from FFC dated 7 March 2022.

Children’s Guardian’s written material

45. The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings under s 31 of the Act.

1. Exhibit ‘R-1’ Respondent’s evidence bundle comprising Section 58 ADR Act and documents under s 31 of the Act -760 pages.

2. Exhibit ‘R-2’ correspondence and further communication documents / summaries between Children’s Guardian and DET and NGE.

3. Exhibit ‘R-3’ copy of decision in respect of Industrial Relations Commission of New South Wales (further details not provided to preserve s 64 order re: confidentiality).

46. The Children’s Guardian also filed and served detailed written submissions and made oral submissions at hearing at the conclusion of the evidence.

Applicant’s evidence at hearing

47. In evidence in chief FFC told the Tribunal that she was retired. FFC confirmed that the statement as part of ‘A-3’ was a summary of the previous matters outlined in ‘A-1’.

48. FFC told the Tribunal why she had applied for a WWCCC. FFC said that she was at a stage in her life where she needed to understand herself and move on without any baggage. FFC said that she had worked in a Hospital as a volunteer working with babies. This occurred in the context of being a volunteer with her Church and was hoping to continue this work with a WWCCC.

49. FFC said that Exhibit ‘A-2’ was a report setting out her current position on these matters. FFC elaborated and said that she had complied with all requirements of the Children’s Guardian and her previous employers and these proceedings. FFC said that the material shows that as a matter of record her past is unblemished.

50. In cross examination FFC was asked about a reference made by her lawyers in IRC proceedings where a partial admission was made to the scenario at the centre of the allegations (Exhibit ‘R-1’ pg 65):

1. Our client, on occasions, did hug her son ‘A’. On one or two occasions we are instructed that the child ‘A’ exhibited an inappropriate degree of affection and our client concedes, with the wisdom of hindsight, that it is possible that on occasions her son may have engaged in the conduct referred to in the allegation but again reiterates that at no stage did she ever encourage such conduct and as soon as she became aware of it, took immediate action to discourage its continuation.

   51. FFC was asked what ‘A’ actually did which was inappropriate. FFC said that she didn’t really know and that if anything ‘A’ put his hand on my leg. ‘I put it (the hand) away immediately and ceased’.

   52. FFC was asked about the allegation of her hand being on the complainant (‘A’s) penis. FFC was asked whether she remembered that occurring. FFC said that ‘I have no memory of that at present’ … ‘if that happened’.

   53. FFC was asked about an incident where she alleged that ‘A’ had exposed himself to her in the main bedroom. FFC said that that incident was exactly as it was written. FFC said that she was in the front bedroom (which was the main bedroom to her home) and ‘A’ turned up and exposed himself to her with a sexual overture. FFC said she told ‘A’ to ‘go home to his wife’. FFC was asked why she said this to ‘A’. FFC answered that she said those words because ‘A’ was newly married and his behaviour was totally inappropriate’.

   54. FFC was taken to her statement at Exhibit ‘A-3’ where she referred to her children being totally comfortable leaving their children (her grandchildren) in her care. FFC was asked how she knew that was the case. FFC said that another son ‘P’ raised an issue about ‘A’. When elaborating FFC said that there was an incident where some of the children (cousins) were naked in ‘A’s swimming pool. At the time ‘A’ had two girls and one boy. The girls were four and two years old. ‘P’ had two boys and he was apparently not comfortable with them being in the pool with their naked cousins.

   55. FFC was taken to pages 346-353 of ‘R-1’ which was an interview with ‘P’ during the employer investigation of the allegations. FFC was asked about ‘P’s response to the interviewer when the following was put to him:

Q: ‘So when ‘A’ said that to you want did you think?’

A: ‘I believed him – in terms of my relationship with ‘A’ or mum or is that?’

Q: ‘No what did you think? You believed him. Can you tell me what it was that was having you believe what ‘A’ was saying?’

A: ‘Why did I believe him? I wouldn’t believe that ‘A’ would make something up like that.’

56. FFC said that another son ‘J’ had not raised anything else. FFC was taken in this regard to the IRC decision where at [60] the following is observed about the son ‘J’s evidence on the matter.

1. In any event, I do not believe that (FFC) presents as a credible witness. ‘J’ indicated in his evidence under cross-examination:

   “… With mum, your ducking, you’re dodging, you’re weaving. You don’t know where you stand. Unfortunately you don’t know with mum – sorry, you don’t know the accuracy of what mum is saying and yes, there’s the difference between (‘A’ and his mother) is between night and day.

   57. The Children’s Guardian put it to FFC that ‘J’ was recorded as a credible witness and his evidence was that ‘A’ was credible and that FFC was not credible and that there were no comments or evidence since to indicate that the position had changed.

   58. FFC said that her relationship with her son ‘J’ was nicer than the others. FFC also stated at this time that ‘A’ came to her residence the evening before the hearing for dinner. FFC clarified that none of her family or children were aware of the WWCCC applications or these Tribunal proceedings and for that reason she had not asked any of them to give evidence about the matters.

   59. FFC was asked about the references to ‘A’s ‘addiction to pornography’ and that he possessed a ‘twisted mind’. FFC said that ‘A’ ‘had viewed porn as a teenager’. FFC said that her understanding of it (exposure to pornography) was that the ‘porn stays in the mind’. FFC said that ‘A’ had access to porn magazines owned by his father. He also had access to his father’s porn videos. FFC said that ‘J’ had seen pornography on the television when they would get up at night to go to the toilet.

   60. FFC reiterated that ‘P’ had said that he would not leave his children with ‘A’. FFC was asked in what context did P’s statement arise. FFC said that it was about four years ago, but did not elaborate further.

   61. FFC was asked about the reference from ‘CB’ contained within Exhibit ‘A-1’. Specifically did the author know about the allegations involving FFC and her son. FFC said CB knew about the allegations because he attended every day of the IRC proceedings and heard the evidence. FFC said that CB was her support person during the proceedings. In respect of the reference from Mr ‘KC’ contained at 115 of ‘R-1’ FFC said that the author was unaware of the allegations and was speaking to her altruism and Christian charitable nature through FFC’s volunteer work overseas. In respect of all her referees FFC confirmed that only CB knew of the allegations.

   62. FFC was taken a letter written by her in June 2007 at Pg 424 of ‘R-1’. The letter contained the following explanation of behaviour in a letter to her employer during the conduct / workplace investigation.

Once ‘Comp’ sat next to me in the family room, he took my hand and put it on his leg, moved my hand to his groin, then to his penis. The second time, I knew it was wrong. It is against my behaviour and values, so I reinforced a very clear “No (Comp’s name), no more”. I made sure that it did not happen again.

At bed time, as a mother, I would give our children a good night hug. For a time, (Comp) would pull me close in an embrace. I didn’t feel comfortable with this. I knew that it was inappropriate more than just a cuddle. I would say “No (Comp’s name), I’ve said good night”. (Comp) was giving wrong affection and I would leave the room immediately.

63. FFC was asked about her hand being placed on the complainant’s penis (as outlined in her letter) and asked whether she thought it indicated that something was going on between them. FFC said that she thought his actions were very concerning. It was put to FFC in a working with children context how she might react if the same thing happened. FFC said that she would ‘stop it’ and tell the child ‘no’. When asked if she would do anything else FFC said that she would not do anything else. FFC elaborated and said that ‘maybe if it was a one off’, that was what she would do.

64. FFC was taken to material at page 575 of ‘R-1’ in respect of the reference to pornography in the home. The letter refers to alleged admission that the complainant viewed porn in the home from eight or nine years of age and videos from 12 years of age. When asked where she found her husband’s material FFC said it was located under the bed. As a result of her complaint he put it in the wardrobe and was later forced to store it in the garage. FFC was asked about the complainant’s letter (at page 579 of ‘R-1’) written at FFC and the grandfather’s request. The complainant refers to his ‘porn addiction’ in the letter about reconciling with FFC. He says that he and his wife do not let FFC have unsupervised access to their children, and also states that:

‘I have also been asked to comment on my pornography addiction as a youth and can confirm this as true, probably as a result of the history of what was occurring at that time in my life. Thankfully, this is no longer a burden in my life. (Emphasis added)

65. FFC said that she did not believe that the complainant was rehabilitated from his pornography addiction as referred to in her evidence about his ‘impure’ and ‘wicked’ thoughts. FFC said that the complainant had had numerous infidelities as an adult and gave some evidence freely that she had significant suspicions that the complainant was ‘going off during the day for sex’. When the basis of this evidence was inquired into during the hearing FFC referred to the complainant owning a small business where he could leave employees on jobs on site and go off to women’s homes for unfaithful liaisons. No actual evidence of these matters was given by FFC other than her views and suspicions that such matters were still present and occurring in the complainant’s life today. An unrelated matter about infidelity was raised in FFC’s re-examination.

66. FFC said that in respect of her conduct towards the complainant she would ‘set the standard and say no’. When asked what else she might do she said that ‘if the behaviour continued I would do something about it and report it’.

67. At the end of her cross-examination FFC was asked whether she accepted that the complaint maintains that the allegations that he made in 2007 are truthful. FFC said that the complaint changed his evidence in the IRC proceedings and so the position is no longer clear.

68. In re-examination the Tribunal gave FFC the chance to clarify anything arising from her cross-examination. FFC referred to her ‘unblemished teaching record and referred to an incident in the Children’s Guardian material about a complaint in 2006. This was a minor unsustained matter concerning an alleged refusal to let a young child leave class to go to the toilet. The Tribunal noted that little weight was placed on this matter by the Children’s Guardian. FFC said that other than that matter in 43 years teaching in NSW, South Australia and Victoria there were no other professional complaints.

69. FFC referred to the reference from ‘KC’ referred to at [61] above. FFC said that KC set up and operated charitable teaching schools in Cambodia and that in his view FFC was a ‘role model to his staff’.

70. FFC confirmed that in respect of the complainant she believed that he still had sexual and morality issues. FFC characterised the allegations against her as ‘the allegations from a perverted mind’.

71. The Tribunal asked some questions of FFC at the conclusion of her evidence consistent with the powers under s 38 of the NCAT Act. FFC was asked about her teaching career as referred to by her in her re-examination evidence. FFC said that she did three years in South Australia in the mid 1960’s full time, then to Sydney for two years full time. After that she started her family and then recommenced with three years as a casual in Melbourne. FFC then returned to Sydney and worked in a school on a regular basis for two days per week teaching languages then another school (a religious school) three days a week.

72. The Tribunal asked FFC if she could elaborate on her evidence about the meaning of the complaint’s absences from work and why she believed that there was some improper basis for them. (see [65] above). FFC said that she did not have much evidence about this but said that she believed that was the case. FFC elaborated to some extent the basis of her concerns and referred to the complainant’s prolonged viewing of pornography, having only one girlfriend and then marrying her.

73. FFC was also asked whether she was concerned that her other sons might have access to her husband’s pornography in the garage. These questions were asked in the context of her letter to her employer from 2007 at 575 and 567 of ‘R-1’. In that letter FFC said:

.. he (the complainant) has not been able to discern between reality of life and mulling of this filthy stuff in his mind. He has not owned up and has built up a tolerance effect from viewing pervasive adult porn.

I have learnt never to take evidence from a pervert.

…

Any sexual sin is fostered in the darkness of secrecy. The one who has committed sexual sin has developed a pattern of lies and deception.

Due to his mind being twisted and distorted from porn and sexual activity, he is blaming me for his wrong doings. He is transferring his guilt to me. I am not responsible for his sexual immorality.

74. FFC said that in this context, the continued ability to access porn in the home was a bad thing and she should have done more to get it out of the house. When her husband left that aspect of the problem finished. FFC said that her husband ‘packed his bags in 2000’. At that time two children were still at home (a son and a daughter both in their twenties).

75. FFC also told the Tribunal about one item of evidence concerning the complainant’s sexual activity. FFC said that a (female) secretary at a school where she had taught / worked in the past had made ‘a spontaneous disclosure about having an extra marital affair with’.. (the complainant).

Children’s Guardian’s submissions

76. The Children’s Guardian filed and served written submissions and made oral submissions at the hearing. The Children’s Guardian submitted that the first task for the Tribunal was to determine whether the allegations were true or substantially true. The second task as to determine whether FFC posed a risk to the safety and well-being of children. The third task concerned s 30 (1A) whether the reasonable person would allow FFC unsupervised access to their children cognisant of the matters before the Tribunal and whether it was in the public interest to grant FFC a WWCCC.

77. The Children’s Guardian submitted that it was open to the Tribunal to make a positive finding that the matters (as alleged) occurred. They submitted that the complainant had given sworn evidence in the IRC proceedings and his credibility had been supported by the evidence of two siblings. In addition some of the complainant’s own evidence was not flattering to him, such as evidence where he thought that his actions might have encouraged FFC.

76. The Children’s Guardian submitted that the complainant had acknowledged an addiction to pornography and in this regard and based on other admissions he was considered an honest witness.

77. The Children’s Guardian submitted that FFC’s presentation of her evidence and position at the hearing in the Tribunal was consistent with the observations of the Commissioner in the IRC who referred to FFC as a non-credible witness. The workplace investigators also viewed FFC as lacking credibility in her answers and position in the investigations.

78. Whilst the complainant declined to pursue the allegations with a complaint to Police, the Children’s Guardian submitted that it is still open to the Tribunal to find FFC poses a risk, even though 28 years or thereabouts have passed since the last significant report negative to FFC. However due to the passage of time her level of risk had been mitigated to some extent.

79. On the s 30 (1A) ‘reasonable person’ test, the Children’s Guardian submitted that the allegations themselves would cause the reasonable person grave concerns. They submitted that the evidence heard at the Tribunal hearing would raise serious concerns that FFC would be unable to appropriately respond today or in the future to a matter of concern, both a risk to a child or a behaviour of concern by a child. In respect of the overseas charitable work the Children’s Guardian submitted that is occurring with the head of the entity unaware of the allegations against and workplace history of FFC. This was submitted as a significant concern in the area of continued working with children in such a context. The Children’s Guardian submitted that not disclosing the current bar on working with children would cause the reasonable person to hold significant concerns including about FFC’s honesty.

80. The Children’s Guardian submitted that the Tribunal would hold concerns about FFC’s own views about child protection and how FFC would respond to an incident. In respect of the public interest test the Children’s Guardian said that the application for a WWCCC was initially based on doing HSC marking and supervision but now there was evidence that FFC was wanting to work (as a volunteer) with very young children in a hospital in a church / pastoral setting. Whilst these matters were positive and in the public interest, those matters must be balanced with the public interest in protecting children from harm. The Children’s Guardian submitted that the public interest in FFC being able to engage in this positive work should be balanced with the paramount consideration of protecting children from harm.

FFC’s submissions

83. FFC made oral submissions at hearing and relied on her written statements to outline her position on the matter. FFC said that she relied on three basic items:

• She was / is not an offender,

• She poses no risk to the safety and well-being of children,

• A reasonable person would allow her to work with their children.

84. FFC submitted that the complainant had admitted to his pornography addiction. FFC submitted that she did not invite sexual activity and that ‘it is not me [sic] to do anything like that’. FFC said that she had a clear record She had never been accused of any other allegations and that she knew in herself that she did not invite any activity with the complainant.

85. FFC submitted that ‘as a Christian mother that (the alleged behaviour) would be against my beliefs’. FFC disagreed that she had not appropriately responded to the behaviours and allegations.

86. FFC submitted that she had maintained honesty and integrity throughout the whole episode and that she was wrongly and falsely accused.

Consideration

87. The issue in these proceedings appears to us to be about not just determining whether the conduct subject of all of the allegations occurred, and if so (or otherwise) whether that demonstrates a risk to the safety and well-being of children, but more significantly what is FFC’s current or future likelihood of harming children. We take this clearly from what we perceive to be a significant lack of insight into the circumstances and context of the allegations as well as an apparent lack of understanding as to an appropriate manner to respond to risk of harm behaviour exhibited by child or young person. These matters (whether all or some of the allegations have substance or not) we find somewhat concerning both in the context of preventing risk of harm to children, but also FFC’s significant background in working with and being responsible for children both as a teacher and parent. We return to these matters shortly.

88. Having considered the evidence and submissions we will now consider the mandatory considerations in determining the matter in the way provided for under the Act.

Section 30 (1) considerations

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

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

90. The alleged conduct is serious and is set out at [12] above. These matters are clearly serious both in respect of the severity of the alleged breach of trust but also in the level of harm that they could cause to a victim. They are in the context of an apparent abrogation of child protection noting the reference in s 4 of the Act to protecting (children) from child abuse.

91. Whilst no criminal charges or Police investigation occurred, the matters were subject to two detailed and independent workplace investigation which found the significant majority of the allegations sustained to the civil standard. The IRC Commissioner concluded that the findings of the DET were sound and open to it (to make). FFC is prohibited from working in the NGE or DET school sector even if she is granted a WWCCC. This is a significant matter.

92. Having regard to the evidence that FFC gave at hearing, and her somewhat contradictory evidence concerning whether there were other incidents and the raising of the incident where she accused the complainant of ‘exposing himself to her’ as a sexual gesture, we consider that the alleged matters carry significant weight in assessing FFC’s current risk to children on the available evidence. This is because whilst we cannot make a positive finding on exactly what occurred, we find that there was clearly a level of inappropriate behaviour by FFC at the very least in that she allowed the behaviours to continue, and appears to have failed to respond appropriately to cease and prevent any further risk of harm to the complainant. We therefore find that some of the allegations are substantially true.

93. In our view FFC’s responses to matters, including her continued blaming of the child for the behaviours is a matter of significant concern. FFC appears to lay all of the blame at the complainant’s feet, noting that except for the last historical allegation, the complainant was a child. FFC submitted and stated in evidence that the complainant was ‘wicked’, ‘addicted to pornography’, and had ‘developed a sinful mind’. Notwithstanding FFC’s strongly articulated Christian views, in the context of child protection such expressions are in our view, both inappropriate and out of step with the position that should be taken by an adult with parental responsibility and care obligation towards keeping a child safe from harm.

94. In our view significant concerns remain as to FFC’s risk to the safety and well-being of children due to the nature and context of the incidents and FFC’s response to them. Whilst on the one hand all allegations are denied, at other points of her evidence before the investigators and the Tribunal, there is reference to behaviours occurring in the context of sexual overtures between the complainant and FFC.

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

95. It is clear that the matters referred to under s-30 (1) (a) cover a period of approximately 10 years. The last matter is said to have occurred in 1994. Whilst there has been one recording of adverse information since that time we place no weight on that matter. However FFC’s response to the earlier substantive allegations in the years since the disclosures are concerning as detailed above.

96. We note that FFC denies the matters. However notwithstanding those denials FFC did not at hearing or otherwise indicate how she might mitigate risk other than saying ‘no’ or ‘stop’ to behaviour already underway.

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

97. FFC was 37 to 47 years of age at the time and 60 years of age when the disclosures were made.

(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.

98. In respect of the trigger matters the victim (complainant) was a child being 12-18 years for five of the six allegations and a 22 year old young man at the time of the final allegation. The victim was particularly vulnerable being the biological child of FFC who is his mother, and a juvenile at the time. The parent child relationship would have made him particularly vulnerable.

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

99. The difference in age between FFC and the complainant is 25 years. Then relationship was of parent / child.

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

100. In respect of the trigger matters FFC would have known during any behaviour up until 1990 (the major period of the alleged conduct) that the victim was a child.

(g) The person's present age.

101. FFC was 74 years old at the time of the hearing. The relevance being that offending (including sexual offending) generally declines with age and significantly past middle age. These proceedings do not only concern sexual offending, but rather risk to children.

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

102. FFC does not have a criminal record or history.

103. FFC’s conduct since the matters alleged is set out at [93], [95] and [96] above. No formal fresh matters of any significance have been raised in the years since 1994.

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

104. The likelihood of repetition of the alleged conduct is low, given that FFC is now in her 70’s and all her children are grown up. Her relationship with young children (such as grandchildren) is limited and not of the same closeness as that of her own children in their childhood years including the complainant.

105. There have been no verifiable instances or reports of any adverse matters in the intervening 28 years since 1994.

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

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

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

107. The applicant tendered a number of character references in support. Little weight can be attributed to all of these except the reference of CB as they are all unaware of the allegations. The referee aware of the matters, ‘CB’, refers to the complaint (and the making of the complaints) in somewhat disparaging terms with no independent basis for such an assessment being given. The referee refers to the complainant in the following manner: ‘the accuser was of an aggrieved disposition and the claim was assuredly vexatious in nature. We place little weight in the reference of CB for those reasons.

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

108. There is no material obtained under s 36A.

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

109. The Children’s Guardian’s concerns as provided in their submissions are set out above. The Children’s Guardian maintained that FFC lacked insight into her responses to child protection issues and how to keep children safe from harm.

Further consideration

110. Turning to how the Tribunal should discharge its statutory functions on the evidence we note the guidance from the Courts of record. In the case of BKE v Children’s Guardian [2015] NSWSC 523 Beech-Jones J sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Like the facts in BKE, matters in the current case were not settled, in that the Courts had not been a position to make any positive findings on the conduct and FFC due to the lack of any procceedings.

111. At pars 29 - 33 of BKE the Court observed:

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

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

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

   “It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

   No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

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

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

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

Findings

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

113. However, in the case of Children’s Guardian v CKF [2017] NSWSC 893 Davies J observed that the final proposition from CFW cannot be correct. At [56] the Court observed:

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

   115. We note that since those cases the Court of Appeal in the case of CXZ v Children’s Guardian [2020] NSWCA 338 has reinforced the matters about whether there is any practical need to make findings on every or specific allegations when the Tribunal is assessing overall risk. As Simpson AJA points out at 79 of CXZ when noting that the language of M v M:

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

116. In respect of the criminal allegations we adopt the findings to the extent that we can as set out at [87] and [91] – [94] above. In our view it was not possible to test that evidence further in the scope of the hearing, nor is it particularly useful in assessing FFC’s risk today. The main concerns remain relating to lack of insight and ability to keep children safe from harm.

Finding as to risk

117. Based on a consideration of all of the evidence, we are satisfied that the applicant (FFC) currently poses a real and appreciable risk to children in that she lacks appropriate insight and understanding as to how to keep children safe from harm. In our view, on the evidence and material before us, and having regard to the weight of evidence, we find that FFC does pose a risk to the safety and well-being of children and young persons. The Tribunal had the benefit of observing FFC over a number of hours as she gave her evidence. Her apparent inability to understand her role in any adverse or challenging matters, was in our view completely clouded by her denials of the six serious allegations. FFC instead turned the focus on the complainant whilst at times admitting to the existence of ambiguous matters (such as a prior placing of the complainant’s hand, the complainant ‘misunderstanding’ or ‘misinterpreting’ matters, and making separate somewhat retaliatory allegations about the complainant (such as the exposure allegation).

118. We note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act.

Section 30 (1A) consideration and findings

119. Having made the finding that we have, we are not required to have regard to this section. However for completeness we address it because it is the reasonable person test that on our assessment of the evidence, would prevent the issuing of a WWCCC if FFC was no longer deemed to be a risk.

120. The section requires the reasonable person to allow his or her child to have direct contact with the affected person that was not directly supervised by another person whilst engaged in child related work. In addition the section requires that the making of the order be in the public interest.

(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.

121. In our view a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. As in the Victorian cases that we refer to below we are of the view that a reasonable person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk.

122. Particular regard would be had to the conduct of the applicant in the intervening years. However regard would also be had to the denials and lack of insight as demonstrated in FFC’s evidence before the Tribunal, and also to the two investigators. FFC’s correspondence to the DET investigator would highlight to the reasonable person that FFC does not understand how to appropriately react and respond to behaviour (not necessarily initiated by her) that would cause harm to a child.

123. A reasonable person whilst approaching the matter with some caution would, in our view, find that any risk was sufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A).

124. The reasonable person is required to consider the matter objectively and in our view would reach a similar conclusion to the Tribunal.

125. We note that the case of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:

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

   126. In FFC’s situation a reasonable person would be aware of the circumstances of the evidence before us, and as a result, we find that a reasonable person would not 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. We note for completeness the position of certain of FFC’s children about her having unsupervised access to their children as set out above.

   127. The Tribunal is also (having made the findings above that it has) not required to consider section 30 (1A) (b) that it is in the public interest to make the order. However for completeness we address this matter below.

   128. CYY also addressed this issue at paragraphs 74-75.

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

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

   129. In our view it would be contrary to the notion of the public interest in the granting of a clearance in this matter. We find that the balancing of the applicant’s right to engage in her stated purposes of the WWCCC, contrasted with the protection of children, are not in this instance complementary and in the public interest, as the issuing of a clearance would pose an unjustified risk to the safety of children.

   130. In our view FFC’s evidence indicated that she lacks insight into aspects of her past behaviours (even if findings are not made on all allegations), but importantly her responses to such matters do not sit either comfortably or appropriately with a child protection regime where the safety and well-being of children are the paramount consideration.

   131. Consistent with the reasoning in PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 we believe that it is not the public interest to grant the clearance. We note again given our finding under s 30 (1) that FFC’s level of risk is deemed to be greater than that of any member of the community.

   132. As a result we find that it is not in the public interest to grant the clearance.

Conclusion

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

134. The evidence and material received by the Tribunal establishes that the Tribunal is satisfied that FFC does currently pose a risk to the safety and wellbeing of children, nor would a reasonable person allow FFC to have unsupervised access to their child while she as engaged in child related work.

135. In addition we find that it would not be in the public interest to grant the clearance.

136. It therefore follows that the correct and preferable decision is to affirm the decision of the Children’s Guardian.

Orders

1. The decision of the respondent dated 30 September 2021 to refuse FFC’s application for a Working With Children Check Clearance is affirmed.

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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: 22 June 2022