FHK v Children's Guardian

[2022] NSWCATAD 376

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FHK v Children’s Guardian [2022] NSWCATAD 376

Hearing dates:

22 August 2022

Date of orders:

22 November 2022

Decision date:

22 November 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member
M Bolt, General Member

Decision:

1. The decision of the Children’s Guardian on 7 February 2022 to refuse the Applicant’s Working with Children Check Clearance is set aside.

2. The Children’s Guardian is to grant a Working with Children Check Clearance to the applicant.

Catchwords:

ADMINISTRATIVE LAW - working with children check clearance – assessment of risk

Legislation Cited:

Administrative Decisions Review Act 1997 

Civil and Administrative Tribunal Act 2013

Child Protection (Working with Children) Act 2012

Cases Cited:

BKE v Office of Children’s Guardian [2015] NSWSC 523

Briginshaw v Briginshaw (1938) 60 CLR 336

Children’s Guardian v BRL [2016] NSWSC 1206

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

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

CXZ v Children’s Guardian [2020] NSWCA 338

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431

Office of the Children’s Guardian v DVR [2022] NSWSC 1036

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FHK (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
Lowe T (Applicant)
Jones E (Respondent)

Solicitors:
Bell Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2022/00048416

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. On 16 November 2020 the Applicant applied for Working with Children Check Clearance (Clearance). On 8 December 2020 the applicant was sent a Notice of Interim Bar and request for information advising him that his application for a Clearance was subject to an assessment requirements triggered by records enlivened under cl 1(1)(b) of Schedule 1 of the Child Protection (Working with Children) Act 2012 (NSW) (Act).

2. The records were charges:

1. Persistent sexual abuse of a child - s66EA of the Crimes Act 900 (NSW);

2. Indecent assault on person under 16 years - s61M(2) of the Crimes Act 900 (NSW);

3. Aggravated sexual assault with a person between the age of 10 to 14 years. Four charges. - s66C(2) of the Crimes Act 900 (NSW); and

4. Persistent sexual abuse of a child. - s66EA of the Crimes Act 1900 (NSW (the same charge as the first but differently particularised) (collectively the Charges).

3. Charge (1) was dismissed on 28 June 2019. Charges (2) to (4) were dismissed on 26 October 2020.

4. On 7 February 2022 the Children's Guardian (respondent) sent the applicant a Notice of Refusal of the Clearance. On 18 February 2022 the applicant applied pursuant to section 27(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) for administrative review of the decision by the Children's Guardian to refuse to grant the Clearance.

5. By reason of the Charges, the Children’s Guardian submits that the applicant poses a risk to safety of children for the purposes of s 18(2) of the Act and even if that is not the case, a reasonable person would not allow his or her child to have direct unsupervised contact with the applicant in the course of child related work and it is not in the public interest for the applicant to be granted a Clearance.

Legislative Scheme

6. Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law.

7. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act.

8. The object of the Act, set out in s 3 is to protect children. Section 4 of the Act states that ‘the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration’. While the protection of children is the paramount consideration in the operation of the Act, the other key considerations flowing from the operation of the Act are the rights of persons to work and participate in community and society.

9. The Act sets out a scheme to protect children by requiring persons who engage in child-related work to obtain a Clearance. Certain persons are subject to an assessment requirement because one or more of the matters set out in Schedule 1 to the Act applies to the person. Certain persons are not permitted to engage in child-related work at all.

10. Section 18(2) of the Act provides that the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

11. A different scheme exists as to persons who are defined as ‘disqualified persons’ pursuant to s18(1) of the Act and other persons who have been refused a Clearance by the Children’s Guardian. If a person is a ‘disqualified person’, it is presumed, unless the person proves otherwise that they pose a risk to children: s28(7) of the Act. If a person is not a ‘disqualified person’, there is no presumption that the person poses a risk to children, however the person does have a duty to disclose to the Tribunal any matters relevant to the application: s27 of the Act.

12. Risk to the safety of children is defined in s5B of the Act to be ‘a real and appreciable risk to the safety of children’. In determining whether there is a risk to the safety of children, the Tribunal must consider the matters set out in s30(1)(a) to (k) and s30 (1A)(a) and (b) of the Act.

30(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.

The criminal charges and matters alleged

13. The applicant and his partner began fostering children in 2010. They looked after a baby girl for about six weeks. In 2010 they began to foster a boy who was five years old (referred to as A). A was a high needs child, he was autistic, non-verbal and with little socialisation.

14. In 2014, the applicant and his partner expressed an openness to foster another child. Ms Madafiglio, the case manager suggested TC who was 11 years old at the time (born on 11 February 2003). TC was described by Ms Madafiglio as a boy struggling and living in hotels because his previous placements had broken down. TC was removed from his mother’s care on 12 September 2012. At this time TC was not permitted to speak to his mother on the phone and the visits with his mother were mostly supervised.

15. Once TC was in the applicant’s care on 24 October 2014, it was disclosed to the applicant and his partner that TC had been sexually abused when he was younger, that he had been removed from his parents as a result of neglect and drug use and had moved from different care placements a number of times over the last five years. TC had been in about 30 different placements prior to being placed with the applicant and his partner.

16. Sometime in 2015 the applicant’s mother moved into their home. T, who was TC’s younger brother had also been placed into the applicant’s care in December 2015.

17. On 24 January 2018 TC ran away from the applicant’s home to his mother’s home. The police attended at his mother’s home to remove TC. TC made disclosures to police on 25 January 2018. As a result of the disclosures to the police arrangements were made for TC to attend the Child Abuse Squad Unit on 31 January 2018 and he participated in what is called a JIRT interview about incidents that allegedly occurred from 2014 to 2018.

18. The allegations were that about 3 weeks after he commenced to live with the applicant and his partner, the applicant sexually assaulted him by penile anal penetration and that this conduct continued on numerous occasions usually on a weekly basis although there were some periods of up to 3 weeks where the sexual assault did not occur. TC alleged that on one occasion the applicant gave TC a sleeping pill and alcohol, on another occasion, alcohol was given to TC. TC also disclosed occasions where fellatio occurred. TC stated that he ran away because he could not maintain an erection in order to have penile anal intercourse with the applicant.

19. TC alleged that the acts of sexual assault occurred in various parts of the house including the applicant’s bedroom, his bedroom and the kitchen. TC alleged that A was a witness to some of the sexual assault.

20. TC stated that he did not report the offending earlier because he thought he would not be believed because he had been abused by adults in the past and had not been believed or received the support he asked for.

21. TC reported that the applicant and his partner used lubricant, and a sex toy and the applicant used the lubricant and the sex toy on him. When a search warrant was conducted by the police the lubricant and sex toy were located in the house.

22. The Charges as set out in paragraph 2 contained the following factual allegations:

1. Charge 2: the applicant called TC into his bedroom. The applicant was lying on the bed naked. The applicant told TC to get the duct tape and the applicant tied him up. The applicant stripped TC by pulling his pants down and by removing his shirt. The applicant placed TC into a cupboard. The applicant told TC to escape. TC did not recall how the incident ended.

2. Charge 3: the applicant came into TC’s bedroom with duct tape. TC was crying and said to the applicant please don’t do it again. The applicant said I can do it rough or gentle. TC said I don’t want you to do it at all. The applicant said, ok I will not put it in. TC was lying on his stomach. The accused tied up TC’s hands. The applicant placed his penis between TC’s legs and then inserted his penis into his anus. TC started to cry. The applicant stopped and apologised.

3. After the incident the applicant said to TC that if he told anybody, he would make him sound like a big liar. TC said that he was scared to tell anybody because he was afraid that nobody would believe him. TC said to the applicant that if he did it again he would tell his mum or his stepdad. The applicant replied that he would never do it again but will do little stuff, which TC understood to mean fellatio and hand jobs.

4. Charge 4: In a car on two occasions the applicant performed fellatio on TC and made TC perform fellatio on him.

23. The applicant was charged on 30 October 2018 and at this time had his employment as a schoolteacher terminated.

24. At the trial which commenced on 26 October 2020, TC commenced to give evidence. He gave evidence about being held in a chicken hold by the applicant, about putting lubricant on his penis and on the applicant’s annus, going to two different locations in a car where the applicant sexually assaulted TC.

25. He agreed that he never told the police because he was scared that nobody would believe him. He was asked what made him decide to speak up. He said ‘because I do not even remember. I don’t know.’ TC was asked ‘what made you run away when you did? Answer: I don’t remember. A few questions followed after which a second recording was played. The second recording was predominantly in regard to the contact he had with his mum. TC was asked again about why he spoke to the police when he did. Answer: I don’t know. Can I have a break?

26. After a short adjournment the court was informed that TC was upset, and a request made for the matter to be stood down until after the lunch break. After the break the Solicitor Advocate made the following statement to the Court:

I have obtained a direction that there be no further proceedings in respect of the matter. Privilege has been waived in terms of the reason for that direction to the extent that it has been made on discretionary grounds.

Evidence before the Tribunal

Applicant’s evidence

27. The applicant gave evidence and was cross examined. The applicant’s statement is comprehensive. In the statement he responded to the allegations made by TC. We need not set out the details of the statement, albeit to say that the applicant denied the allegations. The applicant also made admissions about circumstantial matters TC alleged such as playing a game with duct tape. The applicant stated that TC found some duct tape and said, ‘I can escape out of everything’. He put the duct tape around himself in front of Ms Madafiglio, him and his partner. The applicant stated that on this occasion they all had a turn escaping from the duct tape. The applicant does not recall any other occasions where duct tape was used.

28. The applicant admitted that wrestling was something that was done with TC. The applicant stated that Ms Madafiglio suggested that wrestling would be good for TC as it would get out his hyperactivity and focus in a way that was helpful. Wrestling was also something that A did with the applicant and his partner.

29. While the applicant admitted that he liked Hungry Jacks and especially the ice-cream, he denied that he asked his partner to drive to buy it for him. TC alleged that the applicant asked his partner to buy him Hungry Jacks so he had an opportunity to sexually abuse him.

30. The applicant admitted that at times either him or his partner would leave the house to go to the shops. His evidence was that the other adult was also usually present with his mother. His evidence was not challenged on this point. The applicant also admitted that he had watched pornography in the past but not in the presence of TC. The applicant denied that he was sexually assaulted by his father as alleged by TC.

31. The applicant stated that shortly after TC arrived, they had a wrestle and TC ‘stormed off’. The applicant’s evidence is that TC made a complaint to Ms Madafiglio that his partner pulled down his pants and slapped his bottom.

32. The applicant admitted to talking to TC about a sex toy that was in the bathroom. It was a sex toy that belonged to his partner. The applicant admitted to going on a trip to the Gold Coast with TC during the school holidays in April 2017. The trip was a respite for the applicant as they were caring for A and T who was a newborn baby at the time. It was also a reward for TC for improved behaviour in year 8. The applicant denies that he was prescribed sleeping pills or gave any to TC or that he consumed alcohol or gave alcohol to TC.

33. The applicant’s evidence is that TC had been visiting his mother prior to running away at the end of January 2018. When TC returned home from visiting his mother he had hundreds of dollars and six bags full of items such as designer clothes and shoes, a golden watch and electronic speaker. The night before he ran away there was an argument between the applicant’s partner and TC about TC going to bed. The applicant heard TC swearing at his partner. T and A were both asleep by this time.

34. In the morning, the applicant went into TC’s bedroom, and he was not there. He telephoned the social worker and together they went to the police station to make a missing person report. That afternoon, the applicant’s partner was informed by the police that TC had made allegations of sexual assault by the applicant. The applicant left the family home so that his partner could continue to care for A and T.

35. The applicant commenced teaching in 2012. He worked full time while TC was in his care, usually leaving home at about 6.30am and returning home about 4pm to 5pm. The evening routine consisted of preparing dinner, bathing and organising school bags for the next morning. The applicant’s mum arrived in the evenings there was time to watch television. The weekends were generally spent at home as A was hard to take out and T was a toddler.

36. When he was informed about the allegations made by TC he immediately informed the principal. From that point he did not return to work. His employment was terminated in about October 2022. The applicant seeks the Clearance so he can return to work as a teacher.

The applicant’s references

37. The applicant relies on eight character references who were all aware of the Charges. The references are from his former colleagues who were teachers, a cousin who is a solicitor and a neighbour. His colleagues gave an account of the applicant being professional and very conscious of children’s safety in the school environment. They describe the applicant as a ‘man of integrity’, ‘diligently complying with working with children requirements’, ‘no doubt about his behaviour or conduct towards children’.

38. His neighbour and cousin said that the applicant’s home was a loving environment where the children thrived.

39. His cousin stated that ‘I would be more than happy and confident to leave my children in the applicant’s care as I know that he is caring and responsible and would never put my children at risk.’ The neighbour who has known the applicant for nearly 10 years echoed the same sentiment.

Dr Lennings

40. The applicant also relies on two reports from Dr Lennings, a clinical psychologist. Dr Lennings prepared both reports for the children’s court and not in the context of these proceedings. Dr Lennings was cross examined. The applicant also relied on an undated letter of instruction to Dr Lennings which sets out the documents he was briefed with to provide the report.

41. Dr Lennings produced two reports. The first is dated 30 October 2018 and the second is dated 25 February 2021. Both the applicant and his partner were asked to attend interviews and complete personality assessment and psychometric assessments in both 2018 and 2021.

42. In the first report, Dr Lennings records the applicant’s instructions. The applicant gave detailed evidence about his last interactions with TC which we have paraphrased. On 24 January 2018, the applicant and his partner were out of the house when TC was allegedly used the applicant’s beard trimmer to shave his pubic hair. The applicant has a phobia about body fluids and was quite angry with TC for having done this. He requested that TC buy him a new beard trimmer from the money that his mother gave him. There was some confrontation between them about that. TC rejected the consequence to buy the beard trimmer and there was a significant argument and then TC went on to verbally abuse the applicant’s partner. The applicant became concerned for the potential for TC to be violent towards his partner and he said he tried to calm him. TC later came into the lounge room and asked the applicant ‘do you still love me?’ The applicant who was still angry with him said ‘no’. In the context of the household, the applicant had been the one who had displayed verbal affection to TC as a means of assisting TC's emotional development.

40. Dr Lennings records that the applicant realised he was inappropriate in his verbal behaviour towards TC and that TC felt rejected by him. He also made a follow up comment to TC to the effect that he thought it was a mistake taking him on. TC asked for a hug and the applicant said no and then said goodnight to him.

41. The applicant also stated to Dr Lennings that TC had stopped taking his medication as there were numerous tablets found in a coffee cup in his room which may have explained the deterioration in his behaviour and mood. The applicant stated that TC's mother allegedly told him that he did not need to take his medication. The applicant said that TC’s behaviour had been deteriorating significantly since he was in contact with his mother in 2017. The applicant said he had discussed this with the caseworker and have been concerned about the gifts and money given him to TC and his little brother T.

42. Dr Lennings records in his report the applicant’s partner said to him that himself and the applicant were informed that TC had made multiple false allegations against his foster carers in the past and that his longest placement was six months.

43. Dr Lennings’ opinion was that allegations made by a child in circumstances where false allegations were made in the past and there was a vested interest for making the allegations, had less propensity for the allegations to be true. Dr Lennings’ belief that TC had previously made false allegations against his foster carer’s seems to be based on matters disclosed to him by the applicant’s partner.

44. The applicant told Dr Lennings that he was disappointed that he has not had an opportunity to clear his name and defend his reputation as a result of the criminal case collapsing. The applicant has been seeing a psychologist for coping strategies.

45. In the original report, Dr Lennings found that the applicant posed a low risk to the safety of children even in the event that the criminal matter had been substantiated. Dr Lennings repeated this opinion in the second report and during cross examination.

Assessments carried out by Dr Lennings

49. Dr Lennings did not conduct an actuarial assessment called STATIC 99R which can be used where a person has been charged but not convicted and there is a ‘reasonable belief’ that the charges are likely to be true. Dr Lennings did not form a reasonable belief that the charges were likely to be true. Dr Lennings explained that there needs to be strong evidence one way or another or the allegations need to be plausible, higher than the balance of probabilities or have a high level of certainty.

50. Dr Lennings conducted a risk assessment of protective factors and concluded at [37]:

In reviewing the protective factors, it can be seen there are a large number of internal and context driven protective factors and in the context of low dynamic risk high protective factors provide some confidence to the assessment of low risk.

51. The family strengths and needs assessment device is a means to assess risk in regards to child protection risks generally. The following finds were made:

1. No evidence suggesting problems in parenting capacity or psychological or mental health issues;

2. no evidence of family violence;

3. good levels of social support;

4. good communication skills; and

5. good psychosocial stability.

52. A personal personality assessments inventory was undertaken which demonstrated that while the applicant's response was somewhat defensive, but not greater than is generally observed in these kinds of assessments he appeared to be a generally stable and positive person who is generally confident and optimistic with a clear sense of purpose an identity.

53. Dr Lennings found that the applicant has a good levels of communication; is generally speaking in a friendly tone and is an extroverted person with no difficulties in expression of anger although at times he can be somewhat meek and unassertive.

54. Dr Lennings opinion at [35] was that the applicant has worked with vulnerable children for many years with no complaints. He did not appear to experience a high sex drive or preoccupation with sex. There was no report of physical coercion or attitudes that condone sexual abuse. There was no substance abuse, no psychosocial instability, absence of any mental health issues and no problems associated with his approach or response to treatment, planning or supervision.

Respondent’s evidence

55. The respondent filed documents pursuant to s58 of the ADR Act. The details of the allegations and surrounding circumstances have already been set out.

56. The hearing was adjourned to permit an opportunity to the respondent to contact TC as the respondent sought to rely on documents that disclosed allegations made by TC to the police for hearsay purposes and the applicant sought to cross examine TC.

57. Following the adjournment, the respondent filed a statement from Pearl Badajos, an employee of the respondent dated 19 October. Ms Badajos contacted Deputy Solicitor Legal at the Office of the Director of Public Prospections and Detective Senior Constable (DSC) Ward, Child Abuse and Sex Crimes Squad – Central Metropolitan State Crime Command, the officer in charge of the criminal matter. Ms Badajos states that DSC Ward ‘expressed reservations’ about contacting TC.

Submissions made by the parties

Applicant’s Submissions

58. The applicant submits that the allegations made by TC should be found to be groundless or without foundation and submits that the Tribunal should find that the incidents did not occur on the basis of weighing the sworn and tested evidence of the applicant on the one hand against the untested allegations made by TC.

59. The applicant submits that the Tribunal should not admit the allegations made for hearsay purposes and relies on Children’s Guardian v BRL [2016] NSWSC 1206 (BRL). The applicant does not oppose the police transcripts being admitted for the purpose of demonstrating that the complaints were made and the detail of the complaints but are not evidence of the truth of the allegations.

60. The applicant submits that as there is no allegations or matters that corroborate allegations made by TC, there is no evidence before the Tribunal of any conduct that would ground a belief that the applicant poses a risk to the safety of children.

61. The applicant submits that the Tribunal may draw an inference that TC lied to the police, but such an inference is not necessary for the Tribunal to be positively satisfied that the applicant does not pose a risk to the safety of children.

62. As to the respondent’s submission that the applicant did not object to the admission of police transcripts containing the allegations, the applicant submits that at the time of the hearing he was informed that TC may be available for cross examination.

63. The applicant submits that the Tribunal should not make inferences proposed by the respondent that TC would not want to give evidence in these proceedings as there are no facts in regard to why TC did not give evidence in the criminal hearing or his current life conditions or his state of mind either at the time the allegations were made, at the time of the criminal proceedings, when the matter was before the respondent or at the current time.

64. The applicant submits that the respondent could have and should have made attempts to contact TC and the available evidence from Ms Badajos demonstrates that the respondent could have made further inquiries, could have used its powers under the Act and could have issued a subpoena for TC to give evidence.

65. As to s30(1A) of the Act, the applicant submits that any reasonable person would have knowledge of the following facts:

1. the fact the complainant’s allegations remain untested,

2. that the criminal trial was discontinued before the complainant commenced being cross examined,

3. that the applicant offers a complete and unequivocal denial of the allegations and submits himself to test by way of cross examination by counsel in these proceedings,

4. that the applicant has an unblemished professional teaching career,

5. that the applicant has the support of colleagues who have worked with him for some significant period,

6. that the applicant self-reported the allegations to his employer as soon as he became aware of the existence of the allegations against him, and

7. any other finding the Tribunal may make as to the lack of credibility and reliability in relation to the complainant’s allegations.

Respondent’s Submissions

66. The respondent submitted that, taking into account the cumulative weight of the evidence, the Tribunal could not dismiss the allegations as groundless by reason of the possibility that the alleged conduct occurred.

67. The respondent submits that there is ‘competing evidence’ between the applicant’s statement on the one hand and allegations made by TC on the other hand. The respondent accepts that untested evidence may be afforded less weight but submits that the Tribunal should gain some understanding of the weight it should give to the evidence based on the police interviews of TC and the allegations made against the applicant within the surrounding circumstances.

68. The respondent submitted that the Tribunal should not make an inference that the fact that the criminal proceedings could no longer proceed because TC recanted the allegations, however the Tribunal should ‘give some weight to the fact that the applicant was charged’ and that the Department of Communities and Justice considered the allegations were substantiated.

69. The respondent also submitted that there is no evidence that TC had a history of falsely making allegations against persons, in particular against his foster parents or that TC was motivated to make the false allegations because he wanted to return to live with his mother. The respondent submits that as Dr Lennings based his opinion on these facts, which are not substantiated, his opinion should be rejected or discounted.

70. The respondent’s submission was that the applicant poses a risk to the safety of children because of the seriousness of the alleged conduct, that a reasonable person would not allow their child to have direct contact with the applicant that was not directly supervised by another person whilst the applicant was engaged in child related work and that it is not in the public interest for the applicant to be granted a Clearance.

Consideration

Whether TC’s allegations to the police should be given weight

71. As explained above, the Tribunal adjourned the matter to provide an opportunity for the respondent to make TC available for cross examination. TC is now an adult and was an adult when these proceedings commenced. The respondent’s attempt to locate TC was met with some resistance by DSC Ward and there is no evidence as to whether she actually contacted TC. The hearing date for TC to give evidence was vacated and the parties made submissions as to whether TC’s evidence in regard to the allegations against the applicant should be admitted as to the truth of the allegations and given weight as submitted by the respondent or not admitted for hearsay purposes as submitted by the applicant.

72. There is no evidence before the Tribunal that TC was unavailable for cross examination. The evidence was that DSC Ward had details for TC but was hesitant to contact him. There is no evidence that the respondent asked for TC’s contact details so that he could be contacted.

73. The respondent has not made it clear how or what weight could be given to the allegations in the transcripts. In the Tribunal’s view there are no circumstances in which the evidence can be weighed.

74. The parties both referred to the decision in BRL. This case concerned four police statements that formed part of the prosecution case against BRL on charges of sexual intercourse with a child. The deponents were not made available for cross examination.

75. The Tribunal received the statements as evidence of the fact that the allegations had been made, on the basis that receiving them as evidence of the truth of the allegations would amount to a denial of procedural fairness to the applicant. That conclusion was upheld on appeal.

76. In BRL, Fagan J said that ‘it would have been open to the Tribunal to take the statements as evidence of the facts asserted in them, but this would be subject to consideration of how much weight should be attached in circumstances where they [were] not tested’. The reason why it was concluded in BKE that there was no error in the Tribunal’s approach depended upon the particular facts of that case. In BRL the Children’s Guardian had not contacted the witnesses to ascertain their willingness to give evidence. Also, there was no explanation as to why the witnesses were not willing to give evidence at the criminal trial.

77. In this case the respondent contacted the police however there is no evidence of whether the police contacted TC to ascertain his willingness to give evidence. Based on the evidence before the Tribunal the Children’s Guardian did not contact TC during its investigation as to why he refused to give evidence at the criminal trial or whether he would be willing to give evidence in these proceedings.

78. It is difficult to understand why the respondent would not consider it relevant to find out why TC refused to continue to give evidence at the criminal trial and that it would be procedurally unfair to the applicant if the allegations were takes as evidence of the truth of the allegations at the hearing before the Tribunal. Prior to the decision in BRL, the Court of Appeal dealt with a similar case in Commissioner for Children and Young Persons v FZ [2011] NSWCA 111. As explained by Fagan J in BRL [47] – [49], these inquiries should have been made by the respondent.

79. In our opinion, the Tribunal cannot make a finding that TC is ‘unavailable’ in the absence of TC being contacted to ascertain his willingness to give evidence or any explanation as to why TC was not willing to give evidence at the criminal trial. The Tribunal finds that like in BRL it would be unfair to the applicant for the Tribunal to give weight to the truth of the allegations made by TC in the police transcripts as there is no practical way in which the veracity of the allegations can be tested by the applicant.

80. More recently, in Office of theChildren’s Guardian v DVR [2022] NSWSC 1036 at [132] AsJ Harrison explained that the Tribunal should adopt a flexible approach to the requirement to call or contact witnesses in respect to historic allegations. Focus should remain on the ultimate question which is whether the applicant poses a real and appreciable risk to the safety of children if the Clearance is granted. The assessment by the Tribunal, which examining past conduct is considering future risk.

81. As stated by Ass J Harrison at [136]:

The approach taken by Fagan J (in BKE) allows the admission of statements where the maker is unavailable for cross-examination, subject to weight. This emphasises the responsibilities of the plaintiff as a statutory office holder and as a model litigant. This approach is consistent with the severe consequences that may flow from the denial of a WWCC. An individual may lose their employment or business. They may be forced to change career. They or their partner may cease acting as a carer, including to family members. The risk of injustice in those severe consequences is ameliorated by enabling serious allegations to be properly tested.

82. There is no evidence before the Tribunal that TC was unavailable for cross examination. As a model litigant and in fairness to the applicant it would have been appropriate for the Children’s Guardian to make attempts to contact TC during its risk assessment process and not leave it to occur once the final hearing in the Tribunal had commenced.

83. The Tribunal does not agree with the respondent’s submission that admitting the evidence of the allegations as to the truth of the allegations is the principled approach to the assessment of risk. The Tribunal admits the evidence that TC made allegations to the police, to the Department and to his mother in 2018, however the Tribunal does not admit the police transcripts for the purpose of being assessed as evidence of the truth of the allegations. To do so would be procedurally unfair as the allegations cannot be tested.

84. Secondly we reject the respondent’s submission that there was some ‘consistency’ with the very serious allegations of sexual assault of a child because the applicant had at his home lubricant and a sex toy that TC knew the location of. We accept the applicant’s evidence that his partner kept a sex toy and lubricant in his bedside draw and that TC was aware of this as he had previously seen the sex toy in the bathroom.

Assessment of Risk

85. In coming to its finding of the correct and preferable decision, the Tribunal is obligated to weigh evidence, demonstrating preference for some over the other by some indication why preference is given. This requires an articulation of the different effects of the evidence concerned. Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [50]. Where an allegation is a serious one, like the present allegation, the Tribunal should accept ‘cogent’ evidence and be ‘comfortably’ satisfied to make factual findings: Briginshaw v Briginshaw (1938) 60 CLR 336.

86. The Tribunal in carrying out its fact finding function should consider the circumstances surrounding the particular incidents and the course of conduct. Course of conduct refers to prior conduct of charged criminal acts or allegations of the same or a similar character. As Basten J said in CXZ at [13]:

M v M was a case, similar to the present case, where the risk to a child or children lay with the person seeking to have access to the child. In such cases, a finding of a risk is to be made which takes the individual outside the general level of risk; it will usually be based on prior conduct of a kind which may demonstrate a capacity for, or tendency to engage in, unacceptable behaviour.

87. As Simpson JA said at [53], in reference to what Beech-Jones J said in BKE at [33], the Tribunal will assess, among other things, the seriousness of the allegations, the strength of any evidentiary support for the allegations and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a Clearance is granted.

88. There is no course of conduct in this matter. There have been no allegations or charged criminal acts made against the applicant apart from the allegations made by TC.

89. In this matter, the circumstances surrounding the allegations include the details of the allegations, the details of the disclosure of the allegations. There is also sworn evidence from the applicant and in the s58 material there is evidence including that of TC’s mother and one of TC’s social workers.

90. There is no physical evidence of the sexual assault. There is no corroborating evidence. There is no evidence of contemporaneous disclosures although it is referred to in one of the police transcripts that TC disclosed the sexual assault to two school friends.

91. The applicant gave evidence under oath and was cross examined. The applicant was asked about each allegation made by TC. It was not suggested to the applicant during the cross examination that he was being untruthful in his responses.

92. The respondent has not made any submissions that the applicant’s evidence was untruthful or should not be accepted by the Tribunal. The Tribunal carefully observed the applicant giving evidence. The Tribunal finds that the applicant gave his evidence with care and consideration. His evidence was responsive and direct. He had good recall and made appropriate concessions. The Tribunal accepts the truthfulness of the applicant’s evidence.

93. These are very serious allegations of recent conduct made by a vulnerable child in regard to a person who at that time was caring for other vulnerable children. We accept that some weight ought to be given to the fact that the Director of Public Prosecution considered the matter serious enough to charge the applicant.

87. After carefully considering all of the material and evidence before the Tribunal we find that it is doubtful that the allegations occurred as no other allegations have ever been made against the applicant. He has worked with children on a full time basis from 2012 to 2018. The applicant’s colleagues and those who have known him for a long time say that he is protective of children.

88. Dr Lennings conducted various assessments of the applicant and believes that he poses a low risk to children.

89. There are numerous aspects of TC’s evidence that are dubious. For example, the assertion that the sexual assault occurred usually on a weekly basis (not especially on weekends or during school holidays) in circumstances where the applicant worked full time and there were three adults living in the house. Secondly, that the sexual assault at times occurred in front of A. While A was autistic and mostly non-verbal, we have great doubts that the applicant would take the risk of sexually assaulting TC in front of a witness. However as TC did not attend for cross examination, we cannot conclude that his evidence would have been considered to be groundless.

90. After carefully considering the material before the Tribunal, we are able to reach a level of satisfaction on the balance of probabilities that the alleged conduct did not occur. Based on the material before the Tribunal, we consider that there is less than a possibility that the allegations occurred.

Consideration of matters in s30 of the Act

98. Pursuant to sections 18(2), 27(1), 30 of the Act, the Tribunal must grant a clearance to a person who is subject to a risk assessment unless she is satisfied that the person poses a future risk to the safety of children. In determining whether a person poses a risk to children the Tribunal must consider the matters set put in s30 of the Act. Section 30(1)(a) to (k) of the Act.

30(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

99. The Tribunal accepts that the matters that caused a refusal of the Clearance are very serious. The Tribunal is not satisfied that the matters alleged by TC occurred.

100. The respondent’s submission that merely because of the seriousness of the Charges the applicant poses a risk to the safety of children is rejected. There must be cogent evidence of the matters alleged that can be assessed and weighed by the Tribunal.

101. Sections 30(b) to (g) and 30(i) presume that there has been some improper conduct by the applicant and while they have been considered, they are not directly relevant in this case.

S30(h) of the Act:  the seriousness of the person's criminal history and the conduct of the person since the matters occurred

102. The applicant has no criminal history, no allegations against the applicant have been made prior to or following the allegations made by TC.

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

103. There is no order in force in relation to the applicant.

Section 30(1)(j)  any information given by the applicant in, or in relation to, the application

104. We consider that the character references provided by the applicant are relevant to the Tribunal’s finding that the applicant is a schoolteacher who is highly regarded by other teachers with whom he has worked closely.

105. The applicant’s colleagues who seem from the character references to be more senior and experienced than the applicant have had opportunities to observe the applicant working with children. Their opinions of his interactions with children are persuasive.

106. The applicant was a schoolteacher from 2012 until his employment was terminated in 2018. During these six years of him working closely with children on a daily basis, there was no suggestion that his conduct was of any concern. The opposite is the case based on the character references from the teachers with whom he has worked.

107. The respondent did not seek to cross examine the persons who provided the character references or make any submissions why the Tribunal should not accept these persons’ evidence as being truthful.

108. We accept Dr Lennings evidence that the applicant poses a low risk to children. While it is correct that Dr Lennings understood that there was evidence that TC had made past complaints of sexual assault against past foster carers that were found to be unsubstantiated and that this impacted on his opinion, his opinion was also grounded on the assessments he conducted of the applicant, in regard to his personality and propensity to engage in an unsafe manner with children.

Section 30(1A)(a)

109. Section 30(1A)(a) of the Act states that a Tribunal may not grant a Clearance unless it 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

110. A reasonable person is a fair minded observer with knowledge of the material objective facts. A reasonable person would have some understanding of the civil standard of proof and notions of procedural fairness.

111. In the Tribunal’s view a reasonable person would allow his or her child to have direct contact with the applicant engaged in child related work for the following reasons:

1. The applicant is a highly regarded teacher by his peers who is described as being protective of children;

2. Those persons who have known the applicant for a long time, such as his cousin and his neighbour and who have observed him with his children would have no hesitation in leaving their children with the applicant;

3. The applicant was a foster parents to three children, all of them with high needs. He lived in the house with his partner and mother. He worked full time. One of the children made very serious allegations against him of sexual assault that occurred mostly on a weekly basis for a period of about three years, predominantly in the home. The child who is now an adult did not attend these proceedings to give evidence. When the child was seventeen, he commenced to give evidence at a criminal trial based on allegations he made against the applicant. Shortly after starting to give evidence, the child would not continue to give any further evidence;

4. The applicant denies the allegations made by TC;

5. Apart from TC’s allegation, the applicant has never been accused of sexually assaulting or harming a child in any way; and

6. There is evidence from a clinical psychologist that the applicant poses a low risk to the safety of children.

Section 30(1A)(b) it is in the public interest to make the order.

112. Section 30(1A)(b) of the Act states that a Tribunal may not grant a Clearance unless it is satisfied that it is in the public interest to make the order.

113. The legislative scheme in Victoria is in very similar terms and decisions made as to the meaning of the terms in s30(1A) are relevant. In ZZ v Secretary, Department of Justice [2013] VSC 267, Bell J made the following observations regarding “public interest” in regard to a provision similar to that of section 30(1A):

1. The notion of public interest if broad [206];

2. Central or main consideration is the need to protect children [202];

3. The right of a person to engage in work in their chosen field is relevant [203]-[204], see also Commissioner for Children and Young People v V [2002] NSWSC 949; (2003) 56 NSWLR 476, 483 [38];

4. The right of a person to engage in community affairs is relevant [199];

5. Rehabilitating offenders is relevant and important [202];

6. Once the Tribunal is satisfied that a person does not pose a real and appreciable risk to children based on factors in s30, it would be unusual if the decision is reversed based on ‘public interest’ [209].

114. Based on the evidence and material before the Tribunal, we are satisfied that the applicant does not pose a risk to the safety of children and that a reasonable person would allow the applicant to have unsupervised access to their child while he engaged in child related work.

115. The Tribunal is satisfied that it is in the public interest to make the Orders for the applicant to be granted a Clearance.

116. The correct and preferable decision is to set aside the decision of the Children’s Guardian to refuse the applicant a Clearance.

Orders

117. The Tribunal makes the following Orders:

1. The decision of the Children’s Guardian on 7 February 2022 to refuse the Applicant’s Working with Children Check Clearance is set aside.

2.  The Children’s Guardian is to grant a Working with Children Check Clearance to the applicant.

**********

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 November 2022