FSM v Children’s Guardian

[2024] NSWCATAD 74

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FSM v Children’s Guardian [2024] NSWCATAD 74

Hearing dates:

1 November 2023

Date of orders:

21 March 2024

Decision date:

21 March 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member (Legal)
Prof P J Foreman AM General Member (Community)

Decision:

(1) The decision of the respondent dated 8 February 2023 to refuse the applicant’s Working With Children Check Clearance is affirmed.

(2) The application is dismissed.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – insight - 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

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Child Protection (Prohibited Employment) Act 1998 (Repealed)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

Civil and Administrative Tribunal Act 2013

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Evidence Act 1995

Mental Health Forensic Provisions Act 1990 (Repealed)

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

Children’s Guardian v CFW [2016] NSWSC 1406

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

Jones v Dunkel [1959] HCA 8

M v M (1988) 166 CLR (HCA)

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

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:

FSM (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00048146

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 his Working with Children Check clearance (WWCCC). The clearance was refused because the respondent (the Office of the Children’s Guardian) was satisfied that the applicant posed a real and appreciable risk to the safety of children.

2. The applicant applied for a WWCCC on 2 June 2019 seeking the clearance for the nominated area of Transport Services for Children as the relevant child related employment sector. Pursuant to s 15 (4) of the Child Protection (Working with Children) Act 2012 (the ‘Act’) the respondent was required to conduct a risk assessment of the applicant it appears due to the fact that he had a previous clearance cancelled by the Children’s Guardian in May 2019. That cancellation arose because the Children’s Guardian became aware of a criminal conviction that arose while the applicant held a clearance that had been issued for five years in June 2018. The clearance was cancelled, as the applicant did not respond to a request for information by the Children’s Guardian in May 2019.

3. When the applicant made a fresh application the following month in June 2019, the Children’s Guardian conducted their risk assessment based on s 15 (1) of the Act because of two offences committed in 2019 whilst the applicant held his initial clearance, in the nature of assaults.

4. After 3.5 years, following consideration of all of the evidence and material they had obtained in the assessment, the respondent refused the applicant’s application for a WWCCC on 8 February 2023.

5. On 10 February 2023 the applicant applied for administrative review by the Tribunal.

6. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012, the Tribunal finds that the applicant is currently a real and appreciable risk to the safety of children. As a result of the finding, the decision of the respondent is affirmed.

Background

7. The applicant in these proceedings is referred to as "FSM". FSM is the applicant's pseudonym used in these proceedings in conformity with the order referred to at [8] (below).

8. On 16 March 2023 an order was 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. Other orders were made at later direction listings of the matter concerning confidential evidence filed by the respondent.

Jurisdiction of the Tribunal

9. 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.

10. The Notice of Final Decision was issued under s 18(2) of the Act on 8 February 2023. FSM stated in his application that he was notified of the decision on the same day. On this basis, the application for administrative review filed 10 February 2023 was lodged within the required period and as a result his application for administrative review has been received within time.

The application for administrative review

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

The Children’s Guardian erred in making their decision that the applicant poses a real and appreciable risk to the safety of children for the following reasons:

I am a fit and proper person and have worked as a Bus Operator for the State Transit Authority since 2018 and currently for (bus Company) since March 2022. In the last four and a half years I have had no issue or reports of unprofessional conduct. I have provided my recent medical evidence to the Office of the Children’s Guardian as well declaring on my re 20219 [sic] re-application for working with children clearance. I am a father of three children and have had no further involvement with the police for any offending. I am very proud of my job and see no reason that I be impeded in carrying out my duties as a bus driver.

12. More detailed grounds were provided in written material submitted by FSM.

13. The issue to be decided by the Tribunal is whether, on the balance of probabilities, FSM poses a risk to the safety 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

14. 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.

15. 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.

16. 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.

17. 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.

18. 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)). The applicant in these proceedings (FSM) was subject to a risk assessment as the respondent identified matters listed in Sch 1 of the Act as referred to at [2] above.

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

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

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

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

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

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

(5), (6) (Repealed)

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

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

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

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

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

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

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

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

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

(g) the person’s present age,

(h) the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

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

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

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

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

(k) any other matters that the Children’s Guardian considers necessary.

Burden of Proof

21. 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].

22. 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].

23. 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 FSM is a risk to children unlike an applicant for an enabling order under s-28 of the Act.

24. 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". ...'

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

26. The remarks have also been cited with approval in the Tribunal 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].

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

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

The hearing

28. The matter was heard over one full day. FSM gave evidence and was subject to cross-examination. FSM was not legally represented whereas the Children’s Guardian was represented by the Crown Solicitor’s Office.

Written Evidence

Applicant’s written material

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

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

2. Exhibit ‘A 2’: reference ‘C.F.T.’ dated 19/8/2022.

3. Exhibit ‘A 3’ National Police Certificate issued 3/11/2017.

4. Exhibit ‘A 4’ Clinical Psychologist Report M Costello 13/7/2016

5. Exhibit ‘A 5’ Tax Invoice Course payment – Family Violence.

6. Exhibit ‘A 6’ Statement of ‘N H’ 14/7/2023.

7. Exhibit ‘A 7’ Statement of ‘KH’ dated 14/7/2023.

The applicant filed written submissions on 12 April 2023 concerning an initial stay application.

Respondent’s written material

30. 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 as well as material obtained under summons. The respondent also filed detailed written submissions dated 13 September 2023. The respondent also relied on some brief confidential evidence, which was subject to an order following an interlocutory hearing on 11 May 2023, limiting disclosure of some of the evidence to FSM pursuant to s 49 and s 64 of the NCAT Act.

Brief history of relevant matters

31. The applicant committed domestic violence offences between 2006 and 2020. The reported behaviours included matters relating to threats to harm or strangle, and physical abuse in the context of family violence. Other matters relate to controlling behaviours and breaches of apprehended violence orders (AVOs) in a domestic setting, and some matters concerning possession of ‘abuse’ material for which FSM alerted Police.

32. Earlier charges in 2010 were dealt with under mental health provisions. Matters at Court in 2019 were dealt with by a 12 month Community Corrections Order. There is evidence that FSM’s violent behaviour occurred in the presence of children.

33. Because these matters occurred in the context of a family relationship, they were also characterised (where relevant) as domestic violence offences under the Crimes (Domestic and Personal Violence) Act 2007.

Applicant’s evidence at hearing

34. In evidence in chief, FSM provided some context to his actions, contrasting the manner in which a parent reacts to their own child’s behaviour to that of a ‘child on the street’. FSM said that the two examples would be viewed differently with different questions and answers posed concerning behaviour.

35. FSM said that he was very dissatisfied with the WWCCC process and referred to his statement at ‘A-7’, which showed to some extent his frustration at being shown more and more material by the respondent with a view to overwhelming him. FSM said that prior to and after any decision, there was a complete lack of feedback from the respondent.

36. The Tribunal noted that Exhibit ‘R 2’ contained the Notice of Risk Assessment correspondence at pages 1 and 2. FSM told the Tribunal that he never received that correspondence.

37. In cross-examination FSM was asked about a reference to child abuse and rape material that was raised with attending police during a traffic stop in late 2004. It was put to FSM that he told Police at that time that he had material on a computer of an 18 year old female being sexually assaulted by a number of men. He clarified that the victims were ‘young looking, but girls’.

38. FSM was also asked about an incident in March 2005 whereby he had called Police concerning child abuse material (as noted at page 440 of the s 58 documents). FSM did not recall that matter. FSM was also asked about the issue relating to inadvertently’ downloading child pornography, which he denied. FSM admitted looking at pornography around that time but not of that nature. In any event FSM confirmed that his children were born some years after the said incident, and there was no exposure.

34. FSM was asked about arguments with his wife. He admitted that there was an argument, but he denied that his son (then aged 3) was present. FSM denied the allegation that he ‘choked’ his wife but agreed that there was an argument about going to the United States of America. FSM said that he cannot remember what he was charged with in October 2010 but recalled being charged at the Police Station. FSM was asked if he remembered grabbing his wife by the shirt and pushing her to the ground. He said he did not recall any of this including that he might have sat on her chest and applied pressure to her neck with his hands. FSM said that he was answering ‘no’ in cross examination as he could not recall any of it. When his wife reportedly said: ‘I can’t breathe, so get off me,’ FSM said he could not recall.

35. It was also reported that FSM said to his wife during the October 2010 assault: ‘I am going to hold you down until you become a bit more red.’ The respondent put it to FSM that in October 2010 he assaulted his wife in the presence of their two young children, he threw milk in his wife’s face and pushed her against the wall, he put his hands around her neck and applied pressure, and threatened to kill her next time.

36. In respect of incidents in 2019 FSM had a greater recall during cross examination before the Tribunal. The initial allegation that he took issue with concerned his wife’s snoring and that he jumped out of bed enraged and punched his wife to the side of her head. At this stage of the cross examination FSM was given a Certificate under s128 of the Evidence Act 1995 about his evidence in the Local Court in 2019.

37. It was put to FSM that everything he said in the Local Court was true. FSM agreed and said that he did not realise that he was ‘choking’ his wife. FSM explained his evidence by suggesting that, with an adult, one can play and do things up until a specific point where they say that you are hurting them or they ask you specifically to stop.

38. FSM was asked in cross examination about following his wife into the children’s bedroom and pushing her in the back so that she fell on the floor. FSM denied this and said that his wife stumbled. It was suggested that when FSM did this he had seen that his children were awake. FSM denied this and said that his children were asleep at that time.

39. It was suggested to FSM that he had anger management issues which he denied. It was further suggested that he was quick to get angry which he also denied.

40. Various matters were put to FSM at the conclusion of his oral evidence such as whether violence against an adult in the presence of a child was child abuse. FSM conceded that such matters might be harmful to a young child.

41. At the conclusion of the cross examination the respondent put to FSM that his National Police Certificate (Exhibit A 3) was of little utility as it predated the 2019 charges and did not include the 2010 matters as they were dismissed under provisions of the (now repealed) Mental Health Forensic Provisions Act 1990.

42. The Tribunal asked some questions of FSM in order to understand his evidence and consistent with its powers under s 36 of the NCAT Act. FSM was asked about the video material depicting sexual assault or rape as referred to in his evidence concerning the traffic stop. FSM said that he was stopped in Market Street in the Sydney CBD. He described to Police that the day prior he ‘accidently’ downloaded the material that FSM referred to as the ‘rape porn’. He said that he told the Police he ‘downloaded it’ so that he could report it to Police. Coincidentally, according to FSM when Police stopped him for a traffic matter, it provided the opportunity for him to report the matter from the day prior.

43. FSM said that the traffic stop was somehow related to him obtaining personalised number plates, and that he reported the matter because he was at the time licenced as a security guard and wishing to convey that he was a good citizen, so he advised the attending officer of his own volition.

44. In respect of the evidence whereby he left the family home in one of the domestic violence incidents, FSM said that his father-in-law called the police to arrange for FSM to move out for the time being.

45. In respect of the training course referred to by way of the receipt received as Exhibit ‘A 5’, FSM told the Tribunal that the matter concerned an online domestic violence course which he was still undertaking and was currently into his third module. He was unable to recall anything else of significance from the course.

Respondent’s Submissions

51. At the conclusion of the evidence, the respondent’s representative made a number of oral submissions. It was submitted that FSM was an unimpressive and unreliable witness. The respondent said that FSM was untruthful in his answers and many answers were self-serving. The respondent submitted that it was clear that FSM gave false evidence in the Local Court in 2019, and the Magistrate preferred the evidence of FSM’s wife. The respondent noted that FSM maintained that his evidence in the Local Court was correct, and his references to being not guilty of offences for which he was found guilty were noted.

52. The respondent submitted that in respect of his overall offending, FSM continued to deny that the 2010 and 2019 matters occurred in the manner outlined at Court.

53. In addition it was submitted that FSM continued to deny that, in respect of the 2010 and 2019 incidents, those matters occurred in the presence and context of children, especially the later matter in the child’s bedroom.

54. The respondent submitted that in respect of another incident in September 2006 whereby he kicked the door in of his father-in-law’s premises, FSM had no recollection of the matter. The respondent submitted that FSM’s actions amounted to a violent act.

55. In respect of the 2010 incidents FSM had said in evidence that he could not recall the milk feeding incident with the young child, but later in his evidence recalled the milk being thrown and the subsequent talk about moving to the United States. FSM’s evidence was that he was certain that certain aspects of the overall incident did not occur, but other issues about the incident he was unable to recall in any way.

56. The respondent submitted that based on the 2010 and 2019 matters alone the Tribunal should find that FSM is a risk to the safety of children. The facts of those matters demonstrate that FSM committed serious acts of domestic violence on his wife. The choking it was submitted was extremely serious. The respondent submitted that notwithstanding that the matters were dealt with under Mental Health provisions it was open to the Tribunal to make findings that the matters occurred as outlined in the police material.

57. In respect of the 2019 matters, the respondent submitted that the Tribunal should adopt the findings of the Magistrate.

58. The respondent submitted that FSM’s actions had caused harm to his children. The respondent referred to the evidence of the Department of Communities and Justice (DCJ) caseworkers that school staff observed the son as looking lethargic and having disclosed domestic violence at home whilst at school. In addition caseworkers held documented concerns that the children were being psychologically damaged by FSM’s actions and the school staff were also observing changes in the children. It was submitted that FSM’s risk is maintained by his lack of insight and understanding into how the children could be impacted as observers.

59. The respondent submitted that FSM had caused harm to his children and that it was open to the Tribunal to make a finding in that regard. Alternatively, it was open to the Tribunal to find that FSM failed to protect children by his actions. It was also submitted that FSM had a significant lack of insight into both how children might be harmed but also that he had caused harm to children.

60. The respondent made submissions about FSM’s expert evidence being the report of Mr Costello (exhibit ‘A 4’). The respondent submitted that the report is of little weight in assisting the Tribunal with its task as it predates the 2019 serious incidents. The respondent also noted that the report was prepared for a firearms licence appeal which deals with different tests concerning public interest, and being a fit and proper person to use firearms safely, rather than whether the applicant is a real and appreciable risk to the safety of children.

61. As noted above there was a small amount of confidential evidence that the respondent sought to adduce. At the conclusion of their oral submission at hearing the respondent placed on record in the open hearing that the confidential evidence (relevant as it may be) was not determinative of the matter.

62. The respondent submitted that the Tribunal would be able to move through the criteria of s 30 (1) of the Act only having regard to the open evidence and make a finding that FSM is currently a risk to the safety of children.

63. In written submissions filed and served prior to the hearing, the respondent set out the relevant legislation and case law on determining risk under the Act. Of significance in the submissions was a position concerning the 2004 and 2005 references to viewing abuse material and child abuse material. This related to the matters that FSM reported to Police.

64. The respondent submitted that the applicant in the written material admitted to possessing child abuse material, (by accidently downloading it when attempting to access unrestricted pornography), and that Police had viewed it and confirmed that it contained underage young persons engaged in a sexual act with an adult. In addition there was the ‘rape’ material raised by FSM with Police during the traffic stop which he told them was on his home computer.

65. Whilst FSM had brought both of these matters to Police attention himself, the respondent submitted that possession of such material remained highly concerning, having regard to the paramount consideration of keeping children safe from harm especially sexual harm.

FSM’s submissions

66. FSM submitted at the end of the hearing that his wife is a mandatory reporter. FSM submitted that in this context he cannot be a risk to children as his wife lets him be in the presence of children.

Consideration

67. The principal issue concerns whether the totality of the evidence provided before the Tribunal, establish that at present the applicant is a real and appreciable risk to the safety of children.

68. 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

69. 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.

70. The applicant's application to the Tribunal is brought about by an adverse risk assessment triggered by the respondent becoming aware of the applicant being charged with a number of criminal offences. These matters are clearly serious both in respect of the severity of penalty available under criminal law and the nature of the violence inflicted.

71. Much of the evidence is set out above. The offences occurred in a domestic context involving his wife and at various times some of his young children were present. FSM denies crucial aspects of the Police case, particularly in respect of the instigation of matters and the serious corporal violence inflicted including ‘choking behaviours’.

72. Whilst the first suite of charges for the 2010 matters were ultimately dealt with under mental health provisions, such matters do not operate to diminish the risk that FSM might pose to children. Those matters merely provide an alternative route other than the Crimes (Sentencing Procedure) Act 1999 to conclude those charges due to the presence of mental health evidence.

73. The matters that caused the assessment are:

1. Common Assault charge dismissed in October 2010 by the Local Court under s 32 of the Mental Health (Forensic Provisions) Act 1990 (repealed) – assault on FSM’s wife.

2. Stalk / Intimidate intend fear of physical harm charge dismissed in October 2010 by the Local Court under s 32 of the Mental Health (Forensic Provisions) Act 1990 (repealed) – victim being FSM’s wife.

3. Order of the District Court in April 2014 under s 10 (1) (b) of the Crimes (Sentencing Procedure) Act 1999 dismissing the offence of providing false/misleading information in relation to a firearms application on the condition that FSM enter into a two year good behaviour bond.

4. A conviction for assault occasioning actual bodily harm in 2019 (FSM’s wife as victim).

5. A conviction for stalk / intimidate intending fear or physical harm in 2019 (FSM’s wife as victim).

6. A conviction for intentionally choke person without consent in 2019 (FSM’s wife as victim).

7. A conviction for contravening a prohibition / restriction in AVO in 2019 (FSM’s wife as victim).

74. It is difficult to accept FSM’s evidence about some aspects of these charges, noting that on significant issues he was unable to recall what occurred in his evidence before the Tribunal.

75. In addition, it is clear from the material put before the Court’s that it is difficult to accept FSM’s explanations for what did and did not occur. Whilst we appreciate that his memory may be faulty on matters between four and 13 years prior, it is concerning that some details can be remembered with precision and other important matters are not recalled, especially in the heightened domestic context that he puts to the Tribunal.

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

76. It is clear that the matters referred to under s-30 (1) (a) cover a period of approximately nine years. At the time of hearing it was four years since those matters, but there was also an incident whereby the wife of FSM contacted Police about FSM’s aggressive behaviour during an argument in June 2020 in the presence of their children.

77. Earlier matters of lesser severity occurred in the period 2004 to 2006. These matters involved accessing child abuse material (albeit unintentionally on FSM’s evidence) in 2004, and also volunteering information about violent pornography apparently depicting a crime in 2005, as well as a violent incident with his father in law in 2006. It was 17 years since the conclusion of those matters at the time of the hearing.

78. Other than these matters, there have been no further incidents of concern and no Court matters since 2019. FSM has ceased to be a bus driver due to his inability to obtain a WWCCC and has worked without complaint as a Courier in the interim. His bus driving history was without adverse incidents.

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

79. FSM was 44 when the 2010 domestic violence incident occurred and 52 years old at the time of the 2019 incidents.

(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.

80. In respect of the trigger matters the victim was FSM’s wife who was 35 years old at the time of the 2010 offending and 44 years old at the time of the 2019 offending. The evidence establishes that his young children were secondary victims to FSM’s violence.

81. FSM is male and his wife female. In this regard the wife was vulnerable. In addition FSM is of larger stature than his wife (observed from Police evidence) which would have added to her vulnerability. The children would have been particularly vulnerable as FSM was their father and acting violently in the family home. There is evidence that the wife took steps to try and protect the children by her actions in both the 2010 and 2019 incidents.

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

82. The difference in age between FSM and his wife is eight years.

83. The relationship was of husband and wife. In respect of the young children the age difference was significant and the relationship was of father and children.

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

84. The victim of the criminal charges was not a child. However it is clear from the evidence that FSM’s actions caused harm to his children even if that was not his intention. Those children being his own, their specific ages were known to FSM at the time of the incidents.

(g) The person's present age.

85. The applicant was 57 years old at the time of the hearing and is now 58 years old. The relevance is that offending generally declines with age and significantly past middle age.

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

86. The applicant does not have any criminal history beyond the matters set out in these reasons. He does have police records concerning the charges as set out above, which caused the risk assessment. There is no evidence of any adverse matters of a formal nature coming to attention since the most recent charges in 2019 other than the COPS event from 2020 when the wife telephoned Police. Domestic violence offences are serious offences. Assault occasioning actually bodily harm is a serious indictable offence.

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

87. FSM provided an Expert Report from 2016 prior to the 2019 offending. That report was prepared for unrelated purposes and does not address FSM’s risk of harm to children in any specific manner.

88. The respondent submitted that FSM will re-engage in interpersonal violence in future. The fact that FSM had effectively repeated his actions nine years apart was submitted as indicative of his propensity to respond to violence should the situation which triggered such a response manifest itself in future. FSM’s lack of insight into his conduct was submitted as a factor increasing the likelihood of a repeat of the behaviour. In addition the lack of any treatment for his psychological state (as referenced in various documents before the Tribunal concerning FSM) was also seen as a factor highlighting a repeat of the behaviour.

89. The Tribunal notes the completion of an online course in 2023 but FSM was unable to provide any specific details as to why he did the course or what he learnt from it when questioned by the Tribunal at the end of his cross examination.

90. The Tribunal also notes that FSM continues to believe that his children were not affected in any manner by his actions.

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

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

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

92. FSM tendered a number of character references in support, and the report referred to above. The statement of his wife is at odds with her sworn evidence in Court and what she told Police. As the wife was not called by either party, rather than place any Jones v Dunkel [1959] HCA 8 inference on the statement we instead give it little weight.

93. Whilst FSM and his wife might often discuss matters and sometimes descend into argument without the immediate presence of the children, the overwhelming evidence is that in respect of the 2010 and 2019 matters, children were present to different degrees.

94. Whilst we note the reference from FSM’s employer in the Bus Transport Industry noting ‘no concerns’ we also note that during his employment FSM was under workplace surveillance. FSM’s employer is unable to provide evidence about his risk to the safety of children generally.

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

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

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

96. The respondent’s concerns in their post-hearing submissions are set out above. Specific emphasis was made in written submissions of the comments of DCJ caseworkers working with the family, including follow up and the creation of a safety plan for FSM’s wife and the children.

97. The respondent submitted that there had been multiple domestic violence incidents and FSM has trouble regulating his aggression. The safety plan noted that the children’s emotional well-being was in danger and FSM’s wife would call Police if FSM became aggressive. We note that in such a context, the 2020 incident appears to be an example of the safety plan being put into place.

98. The respondent also raised significant concerns around FSM’s viewing of child abuse material. FSM told Police that he ‘accidently’ downloaded it when trying to access standard pornography. In addition the ‘rape’ footage was submitted as concerning, notwithstanding that FSM chanced upon it during his internet searches. Whilst that evidence did not concern recent matters and FSM reported it to Police, the respondent submitted that the matters were highly concerning, having regard to the paramount consideration before the Tribunal, of keeping children safe and protecting them from abuse.

99. On the reasonable person test, the respondent submitted that due to the pattern of domestic violence abuse and his history of aggressive and controlling tendencies, the reasonable person objectively would not allow FSM to work with their child, unsupervised. They would be concerned about the entirety of FSM’s criminal history.

100. In respect of the public interest test the respondent submitted that FSM’s desire or need to drive buses in order to obtain a higher level of remuneration than at present, to ensure his family’s economic stability was outweighed by the public interest in refusing the clearance in order to keep children safe. The respondent submitted that whilst some weight should be given to FSM’s legitimate desire to engage in paid employment as a bus driver, that is outweighed by the serious nature of his offending and the harm caused to children.

Further consideration

101. The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Like the facts in BKE, certain matters in the current case were not settled, in that the Courts had not been a position to make any positive findings on the conduct and the applicant. In the current matter while the Court wished to proceed to determine the charges, due to the serious nature of the matters, they were unable to proceed.

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

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

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

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

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

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

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

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

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

103. 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] of that case. 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 of children. We have based our consideration on all of the evidence given by FSM at hearing (and in documentary form), and for this reason we have set out above some of his evidence at hearing. We are comfortable that the evidence allows us to make findings, as we do below.

Confidential Evidence

104. At the conclusion of the open hearing, the Tribunal held a brief closed session to consider the respondent’s confidential evidence (as noted at [30] and [61] above). Having considered that evidence (which relates to a report received by Police in 2006), we find that the confidential evidence is of some minor weight and tends to support some of the open evidence of a particular nature.

105. We refrain from referring to that evidence in any detail, as we do not believe that it is necessary to provide separate confidential reasons. The respondent will be able to contrast that evidence with these observations to ascertain that, whilst that material is of limited weight, it is of some weight in assisting us reaching our conclusion.

Findings

106. 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.

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

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

108. We note that not all of the matters were refuted by FSM. However, in his evidence before us, there was significant rejection of choking, the presence of children and his other physical actions towards his wife. We note the following from the sentencing decision in the Local Court in 2019. At Page 222 of ‘Exhibit R 2’ Magistrate Clisdell observes the following:

.. This is a pretty simple matter to resolve. Often, a domestic violence matter that occurs in the privacy of a home can be a bit difficult to resolve, but I have one story that makes complete and utter sense and I have one that makes no sense at all. The complainant, it is fair to say was attempting to minimise things a little bit today, and that is not uncommon in respect of domestic violence where people want to resume the relationship because she does not really want anything bad to happen to her husband. And she said, “I didn’t make up the story I took to the police. I wanted him to understand that what he was doing was wrong”.

109. In respect of the criminal allegations in our view it is open to us to make a finding on the 2010 matters that were dealt with under mental health provisions that on the balance of probabilities they occurred, and we so find. Such a finding is consistent with the totality of the evidence before us.

110. The 2019 matters resulted in positive findings by the Court. The offences were proven beyond reasonable doubt and are indicative of potential risk to persons including others posed by FSM. We adopt the findings of the Court in those matters.

111. In our view the real issue from a risk assessment perspective is the nature, similarity and frequency of the domestic violence. It is clear that there is a pattern of domestic violence and dishonesty where FSM seeks to get his own way. The lack of insight as to his actions causing harm to children who witnessed the violence and were to an extent caught up in it, is of particular concern and in our view elevates FSM’s risk. The fact that FSM failed to understand (despite some prompting by the Tribunal at hearing) that his behaviour might cause emotional harm to another person (including children present), is concerning. His concession on this point was only achieved after a specific example unrelated to his own incidents was put to him.

112. FSM’s attitudinal position appears to arise from the context of the matters, and his view that it was solely a matter between him and his wife and was not (directly) directed at their children. The observation arises from having observed FSM during lengthy cross-examination and some areas of minimising aspects his evidence.

113. In the case of CXZ v Children’s Guardian [2020] NSWCA 338 the Court considered the protective rather than punitive nature of the Act and the working with children scheme.

114. At [46] of CXZ in reference to the High Court’s approach in M v M, Simpson AJA observed:

46. In the High Court the allegations of sexual abuse were treated as “central to the case” (p 71). The Court recognised, however, that (in circumstances where the relevant legislation enjoined the court to regard the welfare of the child as “the paramount consideration”), the court could not be “diverted by the supposed need to arrive at a definitive conclusion on the allegations of sexual abuse” (p 76). In that context, the Court said (p 77):

“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 allegations 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. ...

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.”

115. The paramount consideration therefore remains in determining matters to welfare of children and not being focused on determinative conclusions about specific allegations.

116. Our substantive role is to assess risk, and whether specifically FSM poses a risk to the safety of children and young people. We have based our consideration on all of the evidence provide by FSM as provided at hearing and in in documentary form.

117. As the task of the Tribunal is to determine risk, then consideration of allegations and the need to make findings about them is relevant only to that task. As the Tribunal has often observed in similar matters, risk is to be assessed in respect of the present and future not an applicant’s past risk to children. However, past behaviour can be an indicator of future behaviour being a concept accepted by criminal courts in sentencing.

118. Overall, we observe that in respect of the allegations the applicant’s actions were serious, and problematic but not indicative of preying on children. Where we observe that they were not indicative of preying on children, we are observing that the initial target of FSM’s violence was his wife. These observations do no limit or discount FSM’s risk of harm to others (including children) by his prior actions.

119. We also observe that FSM seemed genuinely remorseful for his prior Court matters irrespective of his denials of the scope of the Court findings and his risk to children. Again his apparent lack of understanding of the consequences of his actions and behaviours indicate that there remains some residual future risk, especially where the impacts of the violent behaviour are not fully foreseen by FSM.

120. The case of Children's Guardian v CXZ [2019] NSWSC 1083 (which is the precursor to the Court of Appeal case of CXZ outlined above), addressed the matter of how the Tribunal should consider risk when there are numerous adverse matters, or issues which were given weight in determining that an applicant or holder of a clearance was a risk to the safety of children.

121. At [294] in Children's Guardian v CXZ [2019] NSWSC 1083 the Court observed that the Tribunal needs to consider the cumulative effect, and to do so in the following manner.

294. It is true that the Tribunal addressed in its conclusions, particularly at [147]-[148], aspects of allegations 2, 3 and 4. However the analysis was confined to, largely, whether CXZ was engaged in particular conduct described in those allegations and not as to the risks posed to children from these findings (although the Tribunal recognised that the children witnessing the violence was detrimental to them). Of even greater significance was the failure of the Tribunal to evaluate the cumulative weight of its various findings, that I have found were made, as to risk (the third stage of the inquiry) for allegations 2, 3 and 4 in its concluding assessment as to risk (or perhaps even as to the particular risks that I have found the Tribunal to have considered when dealing with each allegation individually).

295. This is not to suggest that the concluding remarks do not give consideration to the assessment of risk based on current circumstances as discussed in [148] based on, for example, the approach taken by the Family Court (or later the opinion of experts as to current risk) but this does not bring to account what aspects of the earlier allegations’ and findings as to risk in that respect should count for in the mix of these factors. For example, the Tribunal refers in [148] to the violence between CXZ and his second wife as being “no longer ongoing” (which specifically relates to allegation 3 and the second element of allegation 4), but does not address how any risks said to arise in that context are to be evaluated cumulatively or otherwise in the final conclusions. The focus of attention appears to be on whether the allegations were made out and whether there are current factors which would indicate the absence or mitigation of risk.

122. In these proceedings we have found that the main issue as to risk concerns FSM’s persistent behaviour involving anger and lack of understanding or insight into the broader consequences of his behaviours.

123. FSM’s explanations for his behaviours and his somewhat dismissive attitude concerning the nature and basis of the criminal proceedings, coupled with his evidence before us, have led us to the conclusion that the level of risk has not abated to an acceptable level, being the same level of risk of any adult. When the totality of matters is considered, the risk is greater than the risk of any adult preying on a child.

122. Based on a consideration of all of the evidence, we are satisfied that FSM currently poses a real and appreciable risk to children, as referenced by Young J in ‘V’.

123. In our view, on the evidence and material before us, and having regard to the weight of evidence, based on consideration of all the circumstances as set out above, we find that FSM does currently pose a risk to the safety of children.

124. In our view the risk is greater than that of any adult harming a child in reference to the observation of Young J in the case of ‘V’, at [42].

'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". ...'

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

128. In reaching this position we note that it is a protective jurisdiction, and that the interests of the safety of children override any other interests.

Section 30 (1A) consideration and findings

129. 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.

130. Having made the finding that we have, we are not required to have regard to this section because we are not making an order under Part 4 of the Act, which has the effect of enabling a person (FSM the affected person) to work with children in accordance with this Act.

131. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. Again, as we are not making an order under Part 4 of the Act, which has the effect of enabling a person (FSM the affected person) to work with children, we are also not required to address this section.

Conclusion

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

133. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant (FSM) currently poses a risk to the safety of children.

134. It therefore follows that the correct and preferable decision is to affirm the decision of the respondent.

135. The application will therefore be dismissed.

Orders

1. The decision of the respondent dated 8 February 2023 to refuse the applicant’s Working with Children Check Clearance is affirmed.

2. The application is dismissed.

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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: 21 March 2024