FVJ v Children's Guardian

[2023] NSWCATAD 327

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FVJ v Children's Guardian [2023] NSWCATAD 327

Hearing dates:

21 September 2023

Date of orders:

19 December 2023

Decision date:

19 December 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Anderson, Senior Member
R Royer, General Member

Decision:

1. Order that the application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 filed 18 May 2023 be dismissed.

2. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Catchwords:

ADMINISTRATIVE LAW-application under section 28 Child Protection (Working with Children) Act 2012 - refusal by Children’s Guardian in relation to a disqualified person - where paramount concern is protecting children from child abuse - onus of proof in an enabling order application under section 28 - whether finding on the balance of probabilities is able to be made - whether there is an unacceptable risk of harm – whether a real and appreciable risk is posed by the applicant to the safety of children.

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW)

Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)

Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW)

Child Protection (Working with Children) Regulation 2013 (NSW)

Children and Young Persons (Care and Protection) Act 1998(NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Criminal Code Act 1899 (Queensland)

Evidence Act 1995 (NSW)

Penalties and Sentences Act 1992 (Queensland)

Cases Cited:

ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1

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

BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126

BFX v Children’s Guardian [2014] NSWCATAD 115

BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164

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

BKV v Children’s Guardian [2015] NSWCATAD 65

Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457

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

Browne v Dunn (1893) 6 R 67 (HL)

BYR v Children’s Guardian [2013] NSWADT 310

BZU v Children’s Guardian [2016] NSWCATAD 3

Carr v Simnovic (1980) 26 SASR 263

CGR v Office of Children's Guardian [2018] NSWSC 26

CHB v Children’s Guardian [2016] NSWCATAD 214

Children’s Guardian v BQJ [2016] NSWSC 869

Children’s Guardian v CFW [2016] NSWSC 1406

Children’s Guardian v CKF [2017] NSWSC 893

CJT v Office of the Children’s Guardian [2016] NSWSC 738

CLK v Children’s Guardian [2016] NSWCATAD 183

Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27

Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205

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

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

Commissioner for Children and Young People v VR [2012] NSWSC 1385

CSZ v Children’s Guardian [2017] NSWCATAD 57

CXZ v Children’s Guardian [2020] NSWCA 338

Isles & Nelissen [2022] FedCFamC1A 97.

Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32

LA v Commissioner for Children and Young People [2012] NSWSC 1454

La Macchia v Minister for Primary Industry (1986) 72 ALR 23

M v M [1988] HCA 68; 166 CLR 69

Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590.

Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395

New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173

NU v NSW Secretary of Family and Community Services [2017] NSWCA 221

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

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

Re A Solicitor’s Clerk [1957] 1 WLR 1219

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

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR

Re Sophie (No 2) [2009] NSWCA 89

Roberts v Balancio (1987) 8 NSWLR 436

Secretary, Department of Justice v LMB; Secretary, Department of Justice v P M Y [2012] VSCA 143

SL v Secretary, Department of Family and Community Services [2016] NSWCA 124

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

ZZ v Secretary, Department of Justice [2013] VSC 267

Category:

Principal judgment

Parties:

FVJ (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00160701

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. The applicant is known by the pseudonym “FVJ” in these proceedings in order to protect the identity of the applicant. Disclosure of the identity of FVJ would also identify persons associated with the applicant which is not in the interests of associated children and young persons. It is appropriate to protect the identity of the applicant with a non-publication order and use of the pseudonym.

2. On 14 March 2023 the applicant applied for a Working with Children Check Clearance (WWCC) nominating Religious Services as the child related employment sector.

3. On 26 April 2023 the Children’s Guardian wrote to the applicant and informed him that his WWCC application was refused pursuant to section 18(1) of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”) because he is a disqualified person.

4. The respondent must not grant a WWCC to a disqualified person.

5. FVJ filed in the Tribunal an application for an enabling order under section 28 of the Act on 18 May 2023.

6. The application for the enabling order was heard by the Tribunal on 21 September 2023. The applicant gave oral evidence in support of his application and answered the questions which were posed. The applicant was unrepresented and the information provided was insufficient to discharge the onus on the applicant.

7. The respondent opposed the grant of an enabling order.

8. The decision of the Tribunal will comply with the Act provided that the matters which must be considered in section 30 of the Act are taken into account: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

9. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.

10. A conditional grant of a clearance for the purpose of allowing the applicant to work with conditions and in the chosen area is not permitted by the legislation. Thus, a determination in favour of the applicant cannot be made upon conditions.

11. An order has been earlier made under section 64(1) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. That order is continued and made in accord with the current practice of the Tribunal.

12. In summary, after carefully considering at length the material relied upon by the parties, the additional oral evidence, and the helpful submissions, the Tribunal has determined that the applicant should not be granted a Working With Children Check clearance for the reasons which follow.

The evidence relied upon in the hearing

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

1. Application filed by the applicant dated 18 May 2023: Exhibit 1;

2. Applicant’s bundle of documents filed 1 August 2023: Exhibit 2;

3. Applicant’s additional documents filed 3 August 2023: Exhibit 3;

4. Letter relied upon by the applicant in support dated 24 March 1992: Exhibit 4;

5. Respondent’s Bundle of documents filed 3 July 2023: Exhibit 5;

6. Submissions of the respondent filed 7 September 2023: Exhibit 6.

14. The material relied upon by the parties in evidence has been considered and where appropriate that evidence is referred to in these reasons.

15. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact is determined upon the civil standard of proof which is on the balance of probabilities.

Legislative Provisions relevant to the decision

16. The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are also referred to in the submissions and these reasons necessarily involve some repetition of previous statements made in earlier decisions, so that the legislative basis of this particular decision is transparent and identified.

17. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows:

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

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

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

“Child and young person abuse

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

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

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

(c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence.”

19. The section shows that it is considered by the legislature to be a serious matter which may result in imprisonment upon conviction. It is obvious that the offence of “abuse” is defined by 3 separate types of harm: i) physical injury or sexual abuse; ii) emotional or psychological harm likely to damage emotional or intellectual development or in fact has caused such damage; iii) physical development or health being significantly harmed.

20. The objects of the Act are set out in section 3 which provides:

"Object of Act

The object of this Act is to protect children:

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

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

21. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."

22. "Conviction" as defined in section 5 (1) of the Act “includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.”

23. The definition of "risk to the safety of children" is a reference to a real and appreciable risk to the safety of children: section 5B of the Act.

24. Pursuant to section 14 of the Act a person becomes subject to an assessment requirement in the circumstances referred to in the section which is as follows:

14 Assessment requirements

A person is subject to an

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

25. The circumstances in which the Children’s Guardian may conduct a risk assessment are not limited by the reasons set out in subsection 15 (1) or subsection 15 (2). The section relevantly provides as follows:

“15 Assessment of applicants and holders

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

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

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

....”

26. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

27. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.

28. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

29. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

30. A person is not entitled to apply for an enabling order if they satisfy both subsections 26(1) and 26(2) of the Act. The disqualifying offence in relation to the applicant is referred to in subsection 26(1)(a)(ii) of the Act. However, none of the criteria specified in subsection 26(2) are satisfied in relation to this matter.

31. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

32. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523.

33. The Tribunal is required to follow the decision in the Supreme Court BKE v Office of the Children’s Guardian [2015] NSWSC 523, per Beech-Jones J (as he then was), at [30]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in the often-cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order:

“However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

34. It is also not necessary for the Tribunal to make any findings that allegations not the subject of convictions in fact occurred: Children’s Guardian v BQJ [2016] NSWSC 869 at [64] per Button J.

35. The Court of Appeal has considered the issues relating to risk in CXZ v The Children’s Guardian [2020] NSWCA 338. It is instructive to extract from the decision of Simpson AJA (with whom McCallum JA agreed) at [56]-[59]:

56 In Tilley v Children’s Guardian [2017] NSWCA 174 Basten JA (with the agreement of Meagher and Leeming JJA) referred to M v M and said at [34]:

“The Court noted that some allegations might be seen to be well-founded, while others may be seen as groundless. However, the Court accepted that there would be allegations falling into an intermediate category which were nevertheless relevant to the assessment of future possibilities or likelihoods, which lay at the heart of the Family Court’s function in determining appropriate orders with respect to custody and access, for the welfare of a child.”

57 None of these decisions endorses the proposition that, in respect of every allegation raised by the Children’s Guardian against an applicant for a clearance, the Tribunal must engage in the three-step process for which the respondent contends. The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.

58   It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.

59   The High Court did not, in M v M, have in mind a case such as the present where a series of disparate allegations are presented as a basis for refusing a clearance. It merely referred to allegations that “the father had sexually abused the child”. There was no indication of the number of times on which the abuse was alleged to have occurred, nor the nature of the abuse alleged, other than that it was of a sexual nature. Certainly the High Court did not suggest that each such allegation ought to have been assessed and determined serially. Yet that is the effect of the proposition now being advanced on behalf of the respondent.

36. In NU v NSW Secretary of Family and Community Services [2017] NSWCA 221, Beazley P (McColl JA and Schmidt J agreeing) stated at [55]-[58] and [62]-[63]:

55   However, as the High Court pointed out in M v M at [22], an inability of the court to make a positive finding of abuse does not conclude the question of the appropriate order to be made, in that case involving custody or access to a child, where the paramount consideration is the “best interests of the child”. The same position applies to the appropriate order to be made under the Care and Protection Act. Having regard to these principles, the primary judge was required to assess the evidence to determine whether K would be exposed to an unacceptable risk of sexual abuse if restored to the care of her parents including her father.

56 NU’s particular complaint is that he was denied procedural fairness, whether that be pursuant to the rule in Brown v Dunne or some more general principle of procedural fairness, in circumstances where his denial of sexual abuse was not the subject of cross-examination. It is well established that a failure to afford procedural fairness, where there is a requirement to do so, constitutes error of law which is jurisdictional in nature: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [26]-[42] per Gaudron and Gummow JJ (Gleeson CJ agreeing); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [213] per Kirby J; Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 186 per Handley JA.

57 It is also well established that a finding made in the absence of cross-examination may involve a denial of procedural fairness: see rule in Browne v Dunn. The meaning of the rule in Browne v Dunn was explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 at 16:

“It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.”

58   There is a clear corollary of the rule, namely, that if a witness is on notice of the allegation upon which a party intends to rely and is on notice that his or her evidence is contested on that issue, the rule does not mandate that the witness be cross-examined on the matter. This was explained in Browne v Dunn by Lord Herschell LC at 71, who pointed out that there was no obligation to raise such a matter where it is:

“… perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling … All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”

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

…

62   In the present case, it is unnecessary to determine whether there would have been a denial of procedural fairness had NU not been cross-examined on his sworn denials of having sexually assaulted J. Nor is it necessary to determine whether there is some other or additional principle of procedural fairness that ought to have governed the conduct of the matter. NU was clearly on notice that the allegations of sexual abuse preceding the alleged occasions in March 2013 were in issue.

63   The evidence before the Children’s Court and on appeal in the District Court included the JIRT interview and the transcript of J’s cross-examination in the criminal proceedings, which included extensive cross-examination on her allegations of earlier abuse occurring over a number of years. It also appears that no application was made that J give oral evidence in either court. The Court was informed that it is unusual for a child witness to be required to attend to give oral evidence.

37. In Isles & Nelissen [2022] FedCFamC1A 97, Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ, at [55] considered the issue and manner of assessment of future unacceptable risk and explicitly approved the decisions in CXZ and NU.

38. The likelihood of future abuse or future unacceptable risk of harm is a matter which is not dependent on a finding that a past event occurred on the balance of probabilities or on the Briginshaw standard of satisfaction in relation to proof.

39. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions and if granted the Tribunal will also order the Children’s Guardian to grant a clearance: section 28 (8) of the Act; see BKE v Office of the Children’s Guardian at [23]-[26]..

40. The Tribunal has previously determined that it is not appropriate or permissible for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children’s Guardian [2015] NSWCATAD 65. This approach is supported by the decision of the Supreme Court in BKE v Office of the Children’s Guardian at [23]-[26].

The Issue

41. There is a presumption in proceedings under section 28 of the Act that the applicant poses a risk to children if the applicant is a disqualified person seeking an enabling order: section 28(7) of the Act and BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].

42. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

43. The issue to be decided is whether the Tribunal is affirmatively satisfied that the applicant does not pose a real and appreciable risk to the safety and well-being of children.

Considerations and the Evidence

44. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application.

45. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the decision will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

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

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g)  the person’s present age,

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

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

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

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

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

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

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

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

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

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

47. The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under subsection 30(1) and then subsection 30(1A) of the Act. The evidence described is recited under subheadings referring to the required considerations under the Act.

48. Also, as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant and the circumstances around the applicant’s conduct: see e.g. section 63 of the Administrative Decisions Review Act.

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

49. The applicant is a disqualified person.

50. The disqualifying offence was based on conduct which occurred in 1996. The applicant cultivated a friendship and a relationship of trust between 3 different children over a significant period of time. The applicant invited them to his home and exposed them to pornography and sexual acts.

51. The applicant was charged with committing an act of indecency towards a person under 16 years in relation to 3 children 15, 13 and 9 years of age. This was pursuant to section 61N (since then repealed) of the Crimes Act 1900 (NSW). This is an offence specified in Schedule 2, clause 1(e) of the Act. If the applicant had received a custodial sentence then the provisions of section 26(2) would have precluded him from making this application for an enabling order.

52. Witness 1 was aged 15 and had met the applicant through Witness 1’s mother. The child assisted the applicant with work on his house. During 6 months in 1996 the applicant showed the child pornographic films and provided him with beer and cannabis. On one occasion, the applicant began to masturbate in front of Witness 1 and asked Witness 1 to masturbate him.

53. Witness 2 was a 13-year-old child at the time of the offending who had met the applicant through Witness 2’s mother in 1996. The applicant and the child became friendly and went on a number of outings together over a six-month period. At times the applicant collected the child from school and he would sleep over at the applicant’s house. The applicant provided Witness 2 with cannabis. The applicant showed the child pornographic films and on 2 occasions the applicant masturbated in front of Witness 2 and asked the victim to masturbate him.

54. Witness 3 was 9 years old at the time of the offending. He met the applicant when the applicant gave him money when he was at swimming. Witness 3 visited the applicant’s home. On 2 occasions the applicant watched pornographic films with the child, masturbated in front of him and asked him to masturbate the applicant.

55. In relation to Witness 2 he attempted to persuade the child then aged 13 years, to engage in sexual acts with him. The child rejected the entreaties of the applicant and was incapable of granting the consent sought by the applicant because of his age.

56. The submissions of the Children’s Guardian extract portions of the interview between that child (Witness 2) and the New South Wales Police which is in Exhibit 5. The victim described a visit to the applicant’s house. The victim stayed overnight at the applicant’s house and in the morning, after helping with renovations on the house, they sat down on the lounge to watch a pornographic movie. The victim stated: “[the applicant] had his dick flopped over the top of his shorts and stroking it with his hands around it.” The “dick”, that is the penis, was erect. The applicant asked the victim: "Do you want to know what it feels like when someone else is doing it to you?” The victim responded negatively with a profanity. Undeterred the applicant asked the victim “do it” for him. The victim responded “sternly” in the negative. Still undeterred the applicant said to him: “Why not, all the things I’ve done for you, taking you go carting and everything, buying you stuff and giving you money and you can’t even do that for me. Come on [that’s] a bit slack isn’t it. Think of all the money I’ve spent on you, I can’t even finish my house because I’ve run out of money.” The victim responded negatively again with a profanity.

57. The applicant was convicted of committing an act of indecency towards a person under 16 years in relation to Witness 2 (the principal offence). The applicant was sentenced to 200 hours of community service by the District Court in New South Wales.

58. The applicant admitted guilt to the further 2 charges of acts of indecency in relation to Witness 1 and Witness 3, which were taken into account when sentencing for the principal offence, pursuant to section 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The relevant form contained in Exhibit 5 shows the admitted facts to be:

The victim [Witness 1] was 15 at the time of the offence. The prisoner put on an adult pornographic video and watched it with the victim. The prisoner began to masturbate in front of the victim.

The victim [Witness 3] was 9 at the time of the offence. He was at the prisoner’s house when the prisoner put on a pornographic video. He then showed the victim his penis.

59. The District Court Judge who sentenced the applicant in 1999 is recorded in the transcript as saying:

“…the facts of the matter are that the prisoner met a young man, who was then 13 years of age, through his mother at the beginning of 1996. The prisoner became friendly with the young man and on numerous occasions took him out, some of the locations were the Motordrome at Newcastle, the beach, sprint car racing at Lisarow, waterslide club and other places. The prisoner would also pick up the young man from school of an afternoon and on occasions the victim would sleep at the prisoner’s home.

The facts tendered to me show that the victim was shown adult pornographic videos at the prisoner’s home and on one occasion when the victim was sleeping at the prisoner’s home he was sitting on the lounge with the prisoner, they were watching a pornographic video and the prisoner took his penis from his shorts and began to masturbate himself. When the victim was later taken home that day he complained to his mother and the police were informed.

A search warrant of the prisoner’s home revealed a number of X-rated movies. The prisoner was interviewed and he admitted showing the victim pornographic videos. He did deny that he masturbated in front of the victim but did admit that the victim may have seen him in the nude after he had showered. However the plea entered to me shows that he does now admit that he masturbated in front of the victim.

I might add that the maximum penalty for committing an act of indecency towards a male under the age of 16 years, or a person under the age of 16 years, is 2 years imprisonment.

The prisoner also has signed a schedule asking that I take into account two other offences where similar conduct took place in front of 2 other young men. It goes to show that the prisoner does seem to have a problem in this area.

The psychological report stated that the prisoner was at a moderate risk of reoffending. A presentence report has said that he is suitable for periodic detention and/or a community service order. I regard in this case that a community service order may be appropriate.

60. The applicant was convicted in 1993 of “Accessory before the fact Assault & Rob”, “Receiving”, and “Accessory after the fact Steal from person” for which he was convicted and fined $200 on each charge, and Court Costs of $45 on each charge. On a fourth charge of “Receiving” on the same date he was convicted and sentenced to a s558 recognizance of $1,000 to be of good behaviour for 2 years and fined $250, with Court Costs of $45. On the same date on a separate charge of “Accessory after the fact to Assault with intent to rob” the applicant was convicted and fined $250, with Court Costs of $45 at the same Court. These matters are recorded in the applicant’s criminal history in Exhibit 5, and all arose as a result of the applicant’s relationship with a male who was a co-offender and a friend of his eldest son. The son’s friend was aged 16, the same age as his son.

61. The applicant was seen by a clinical psychologist for the purposes of the court matters in 1993. The applicant told the psychologist about his childhood and work history. The applicant also told the psychologist about the “Context of the Offences” as recorded in Exhibit 5:

[The applicant] said that he first met [redacted], to whom he later became accessory, in February 1992 when he came home with his son with whom he was friendly. [Redacted] told him that he was feeling suicidal, he was lonely, had no one to talk to and his father did not have time to spend with him. According to [the applicant] he suggested [redacted] speak to the school counsellor, but [redacted] preferred to confide in him. [The applicant] found that he had a companion as [redacted] would go fishing, they helped each other out with pamphlet drops and went to the beach. He described this as an opportunity to recapture his childhood, but that proved to be wrong in the end. [The applicant] claims that one day when [redacted] was very depressed he asked him to masturbate him, and [the applicant] said he complied. This was the beginning of their homosexual relationship.

[The applicant] said he at one point tried to keep away from [redacted], but [redacted] wrote him notes threatening to reveal the homosexual affair, tell his father or convince his cousin to assault [the applicant].

[The applicant] claims that the first stealing offence was a total surprise to him. He said that [redacted] had initiated it without discussing it or consulting with him and said he had attempted it because it gave him an adrenalin rush. [The young person] insisted that [the applicant] take half the money and left it on the seat of [the applicant’s] car. [The applicant] claimed he never spent the money, he put it in a plastic bag and said that he did not even need the money nor did [redacted]. [The applicant] claimed that his compliance and failure to control [redacted] behaviour was because of the threat of revelation about the homosexual affair and because he did not want to lose the only friend he had.

Opinion

To an outsider reading [the applicant’s] story it would appear to be improbable and incomprehensible that he, a 41-year-old married man with 2 children, could come under the influence of a 16-year-old youth, the same age as his eldest son.

62. As a result of the applicant’s relationship with his co-offender and the charges he faced, the applicant’s wife and sons, their social acquaintances and previous friends reportedly rejected the applicant.

63. The applicant’s co-offender was driven in the applicant’s car to a place where he attempted to take a handbag from a 56-year-old victim and in doing so knocked her to the ground. She suffered abrasions to her arms, legs, and head. The applicant and his co-offender were located by police and questioned. During an electronic record of interview the applicant admitted that his co-offender told him of the assault but also said that it never happened before.

64. During a later second electronic record of interview with police the applicant informed them that he’d been involved in 2 other earlier offences with his co-offender. The applicant handed over a purse and money he had received from his co-offender. The applicant denied responsibility for the offending and sought to shift blame to his co-offender. The applicant stated: “It’s ah, made me sick, feel sick a bit, what he did cause I was trapped because of the other incident, he sent concerning ah, sex games with him.”

65. The other 2 earlier offences involved stealing handbags from 2 elderly females with the applicant receiving $72.20 and they stole $120 respectively. The applicant was charged with the offences of which he was then convicted in 1993 on his criminal history.

66. In addition to those matters there were a number of reports made by the police recorded in COPS events as follows.

1. October 1996, a 10-year-old child informed the Department of Community Services that in February that year he visited a granny flat located behind a house occupied by a person he knew as “uncle” and saw the applicant watching pornographic videos, and he exposed his erect penis to the child. The child also disclosed that the applicant drove other children around in his vehicles.

2. May 2011, police were patrolling Deepwater Motorboat Club in Milperra in relation to intelligence of antisocial behaviour involving males engaged in sexual acts in a public reserve, public toilets, children’s playground and nearby bushland. The police located 5 persons of interest including the applicant. On a bush trail they discovered several spent condoms and a large number of tissues on the ground. When asked why they were all in the bush at the same time the applicant is reported to have said: “I was watching the others I was doing nothing.” When asked what they were doing, he said nothing became fidgety, pacing back and forth, looking at the other persons of interest. Police issued a move along direction “as their behaviour would have caused a person of reasonable firmness to feel intimidated.”

3. March 2013, a 55-year-old female reported to police that she had been in a relationship with the applicant for approximately 13 months and it had ended 3 weeks previously, with a history of violence, including stalking and intimidation. The complainant reported that the applicant had phoned her and threatened her stating: “I’m gonna get you, I’m gonna kill you.” She provided the police with a signed notebook statement and said she was scared. She informed police that the applicant was now in a relationship with the woman next door. She alleged he had been violent once before, but no action was taken. She wanted to proceed with an Apprehended Violence Order to protect her. The applicant was served with the AVO and in turn alleged that the woman would call him and breathed heavily into the phone.

4. April 2013, the same 55-year-old woman reported receiving for threatening phone calls from the applicant who allegedly stated: “I’m coming to get you, I’m coming to kill you bitch.” The AVO was current and enforceable. A statement was taken. The woman feared for her safety as she believed the applicant was capable of following through with his threats to harm her. The applicant was cautioned and arrested for breaching the AVO 2 days later. He was taken to the extent police station and participated in an ERISP and denied making contact with the woman since the AVO or making threats. The applicant alleged the woman was jealous of his relationship with another woman.

5. July 2015, a 34-year-old female with an intellectual disability was that the applicant’s house and there was a verbal argument over a bicycle. Police attended and advised the complainant to stop going to the applicant house.

6. July 2016, the applicant was on a train to Central Station in a quiet carriage. The complainant was a female who was talking on her mobile phone. The applicant is alleged to have walked past her and flicked her hand. Police intercepted the train, the applicant denied making physical contact. The complainant did not want to provide a statement.

7. January 2019, a 56-year-old male with a mild intellectual disability reported to police that he had been friends with a female for some time, which relationship he alleged the applicant did not like. The female friend had been trying to break up with that male by telling the applicant that the male had hurt her. This allegedly prompted the applicant to threaten to harm the mail if he went near or touched the female. The male asked police to speak to the applicant and to tell the applicant to leave him alone. The police attended the applicant’s address and advised against any further contact with the male.

8. July 2019, the same male as in the previous incident reported to police that the applicant had phoned him and threatened to harm him if he did not stay away from the mutual female friend. The male did not wish to make a statement. When questioned by police, the applicant denied making any threats or even knowing the male.

9. The applicant was a defendant to 2 AVOs issued December 1993 (interim), January 1995, April 2013 (interim), April 2014 which was a final order subsequently revoked see above (3) and (4).

67. The disqualifying offences are objectively serious offences.

68. The conduct of the applicant did not result in a custodial sentence.

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

69. The disqualifying offence occurred in 1996. Other conduct occurred in relation to the young person with whom the applicant had a relationship in 1992 and 1993.

70. The other matters which are referred to including reports to the police more recently do not fall into the same category.

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

71. The applicant was aged 47 and 48 years of age when the disqualifying offences occurred. The applicant impressed as not having matured since the offending behaviour despite having aged.

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

72. The difference in age between the applicant and the victims of the disqualifying offence was more than 30 years.

73. The applicant was approximately 25 years older than the person with whom he had a relationship. That person was particularly vulnerable and according to the records ultimately committed suicide when he was 20.

74. The applicant knew the victims were children because he knew them personally. It is unclear whether he knew their precise ages which are recorded in the police documents.

75. The Act requires protection of children. The victims were vulnerable due to their age and inability to protectively distinguish friendship from grooming behaviours.

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

76. The difference in age between the applicant and the victims of the disqualifying offence was more than 30 years.

77. The applicant was 25 years older than the friend of his eldest son with whom the applicant had a relationship when he was still a child.

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

78. The applicant knew that the victims were children.

The person’s present age

79. The applicant is aged 75 years at the time of hearing.

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

80. The applicant has a criminal history which contains serious matters.

81. The applicant’s conduct since the matters recorded in that history has resulted in reports to the police.

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

82. The Tribunal is to form its own opinion about the likelihood of any repetition of conduct or risk in relation to the applicant, independent of any expert opinion.

83. An indicator of future behaviour generally is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person may prospectively behave.

84. An assessment of risk has two elements. The first involves the prediction of the likelihood of the occurrence of a harmful event. The second consideration is the severity of the impact of such an event would have if it occurred, so that if the consequences of the event occurring will be significant that will have a greater bearing on the assessment of whether there is an unacceptable risk: Deiter & Deiter [2011] FamCAFC 82, at [61]; Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344 esp. at [66]; Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395.

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

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

1 The decisive issue is and always remains the best interests of that child.

All other issues are subservient.

2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.

3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.

4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.

5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.

6 The onus of proof in reaching that conclusion is the ordinary civil standard.

7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

and thereafter expanded some points contained in the summary.

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

86. More recently the analysis of unacceptable risk and the assessment of allegations of risk has received attention at the highest level in the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction, in Isles & Nelissen [2022] FedCFamC1A 97. The Court convened a 5 member Court consisting of Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ. The reasons were delivered on 1 July 2022. The Court at [46] in its joint reasons stated that:

“Moreover, for clarity, neither Potter and Potter nor Johnson and Page should be regarded as accurately reflecting the law.”

The inaccuracy, to be seen from the balance of the reasons, is obviously in relation to point 6 in the extract of paragraph [68] in Johnson and Page. The Court also referred with approval at [55] to the approach taken in the decision CXZ v The Children’s Guardian [2020] NSWCA 338 referred to previously in these reasons. After referring at [52] to the decision of the High Court in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 (“MZAPC”) (at [38] and [39] of that decision) the Court then observed at [53]:

“The point being made, importantly for present purposes, was that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.”

87. In CXZ v The Children’s Guardian [2020] NSWCA 338 at [12]-[26] Basten JA in his dissenting judgment (in relation to the result) analyses the manner of assessing risk to children under the Act and refers to High Court decisions which support the process articulated to arrive at the answer to the ultimate question “whether a clearance will create a real and not fanciful risk to the safety of children.” In the judgment of Simpson AJA at [57]-[59] (with which McCallum JA agreed) the process is clearly articulated (see previous reference and extract).

88. The Children’s Guardian refers in submissions to the Royal Commission into Institutional Responses to Child Sexual Abuse, research paper dated 28 February 2017 which refers to the nature of grooming behaviours as identified in academic papers. The applicant did not engage with those submissions.

89. A psychological report from 1999 was prepared for the purposes of the disqualifying offences in a presentence context. The report was compiled by using information and interviews with the applicant, the police facts, together with psychometric information from the administration of the Millon Clinical Multiaxial Inventory (MCMI-III) and the Multiphasic Sex Inventory (MSC) which were administered by the Clinical Psychologist, Forensic Psychology Services, Sex Offenders Program with the Department of Corrective Services. Reference was also made in that report to the Static-99 which is an actuarial scale used to estimate risk of sexual reoffending. On that actuarial scale the applicant falls within the moderate risk category.

90. It was stated in that psychological report from 1999, which was part of Exhibit 5, that:

“Overall, [the applicant] demonstrated a considerable lack of insight into his own behaviour and an unwillingness to take any responsibility for his actions. The report concludes that [the applicant] is at moderate risk of sexual recidivism. Although treatment is recommended [the applicant’s] current lack of insight into his own behaviour indicates that he would gain little from treatment this time.”

…

“Previous reports have suggested that [the applicant] has a degree of immaturity in his personal relationships and this was evident during interview. When discussing his present relationship with his wife [the applicant] stated that he couldn’t understand why his wife would not have him back because he had told her he was ‘sorry’; he said he was still hoping she would change her mind.

[The applicant] said that he had always preferred being around young people and wanted to do all the things that he wasn’t allowed to as a child. He appears to relate to young people, including his own sons, as though they are his peers and it seems this was also the case with his victims. Overall [the applicant] impressed is generally immature and being always eager to please in his relationship with others.

…

[The applicant] was administered the MCMI-III a 175 item self-report true-false test extensively used in the assessment of personality and psychopathology. Validity and reliability are well documented, and [the applicant] scores suggested his attitude towards the test was truthful. Examination of the personality profile indicates an individual who is submissive in his relationships with others, fearing rejection he is eager to please and wants to be liked. This individual’s main coping mechanism is avoidance or withdrawal into fantasy. This profile is congruent with [the applicant’s] clinical presentation.

[The applicant] was administered the MSI, an instrument designed for sex offenders which assesses sexual deviance, attitude to the offence, sexual knowledge and treatment motivation. [The applicant’s] MSI profile indicated disclosure of his deviant sexual interests in the minimum expected range, however it also demonstrated a lack of accountability for his actions and a strong need to justify his abusive behaviour. Scores also suggest that [the applicant] is not motivated to seek treatment.

…

The above information indicates that [the applicant] is at moderate risk of reoffending. Treatment to address [the applicant’s] offending is recommended, however given his current level of denial [the applicant] is unlikely to benefit from treatment at this time.

…

Should the court decide on a non-custodial sentence, the following recommendations are respectfully made:

1. No living arrangements which include young persons under the age of 18.

2. No work or voluntary activities which involve interaction with young persons under the age of 18.

3. Disclosure of the nature of his offences to any social contacts involving young persons under 18.

Given the nature of his offences it is particularly important that [the applicant] should not be allowed, or allow himself to be alone with young persons under the age of 18, unless supervised by an appropriate adult who is aware of his offence history and who has been trained in the management of sex offenders.

91. If the applicant’s conduct was repeated in the future and in the presence of children the likely impact upon children would be significant. The behaviour if it occurred in the future to a child would be likely to have an adverse effect upon a child.

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

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

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

93. The applicant has provided information prior to and during the course of the hearing.

94. The applicant provided letters of support in Exhibits 2 and 3. The letter dated 1992 in Exhibit 4 is brief and does not address the risk issues. The letters of support are consistent with the level of denial by the applicant reported in 1999 in the presentence psychological report.

95. The applicant had an appointment to see a psychiatrist in 2001, Dr O’Dea. It was reported to his supervisor by the applicant that he did not see the need to go on seeing Dr O’Dea, that he couldn’t afford it, and that he would go back to him if he felt the need. There is no evidence provided by the applicant from Dr O’Dea.

96. The applicant was cross-examined and is considered to have been imprecise in his evidence and exhibiting a level of denial.

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

97. There is no relevant information provided in this category.

Any other matters that the Children’s Guardian considers necessary

98. The Children’s Guardian made submissions addressing those matters which the Children’s Guardian considers necessary.

99. The Children’s Guardian submitted that in the circumstances the applicant does pose a risk to the safety of children.

100. In relation to Dr O’Dea’s engagement by the applicant the Children’s Guardian referred to a note from a Probation and Parole Officer who recorded that Dr O’Dea in December 2000 told them that he “may consider medical treatment for his [the applicant’s] homosexual interest in young boys.” Additionally, it was recorded that Dr O’Dea had not yet discussed with the applicant his sexuality.

101. It was also submitted that the references provided by the applicant have little weight.

102. The Tribunal finds that the submissions of the Children’s Guardian have significant weight.

Consideration

103. The Act is designed to be protective of children and there are a number of matters which may be relevant to an assessment of risk.

104. The behaviour was beyond reasonable community norms, the behaviour was part of a pattern, and the behaviour, if repeated, would do significant harm. There are no mitigating factors such as evidence of significant and sustained positive progress since the behaviour occurred, there is no recent evidence that there has been a genuine and sustained effort to successfully address the offending behaviour.

105. Remorse is considered to be a factor that mitigates risk in this matter. The applicant has shown no remorse for his clearly inappropriate behaviour.

106. The applicant stated that he requires a clearance to continue with his volunteer work. It was submitted that there is no need for a clearance in relation to the volunteer work to cook and provide food for the needy as part of a Church.

107. Having regard to all of the matters referred to previously in these reasons it is the Tribunal’s determination that there is an unacceptable risk of harm posed by the applicant. That unacceptable risk of harm can exist independently of a finding on the balance of probabilities that particular events have occurred: BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33]; Children’s Guardian v CFW [2016] NSWSC 1406; NU v NSW Secretary of Family and Community Services [2017] NSWCA 221.

108. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk must give primacy to protective factors whilst balancing all of the risks which may be posed to children.

109. The Tribunal recognises that the provisions of section 30 (1A) of the Act apply to this application.

110. The Tribunal is not required to consider subsection 30(1A) of the Act since the Tribunal considers that the applicant does pose a risk to children. The finding of the Tribunal is that the applicant does pose a risk to the safety of children.

111. However, the Tribunal considers that a reasonable person with full knowledge of the applicant’s criminal history would not allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work. This was a clear recommendation of the psychologist in the presentence report in 1999 and there does not appear to be a valid reason to believe the applicant has undertaken any therapy or self-development to minimise the risk which was identified at that time.

112. Additionally, the safety welfare and well-being of children and the need to protect them from child abuse assumes significant importance, if not be determinative. The public interest test requires a balancing of competing interests. It is considered not in the public interest for the applicant to be granted a clearance. There is insufficient evidence that it would be in the public interest to grant the applicant an enabling order.

Conclusion

113. There is a presumption in proceedings under section 28 of the Act that the applicant poses a risk to children since the applicant is a disqualified person seeking an enabling order: section 28(7) of the Act.

114. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.

115. As referred to previously in these reasons it is the Tribunal’s determination that there is an unacceptable risk of harm posed by the applicant. The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied for the reasons expressed that the applicant does not currently pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

116. It is concluded on the balance of probabilities that having regard to the circumstances surrounding the conduct by the applicant that the presumed existence of a real and appreciable risk to children has not been disproven as required by section 28: see BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33].

117. In all the circumstances, taking into account all the considerations required under section 30 (1) of the Act, referred to in detail previously in these reasons, the decision of the Tribunal is that the applicant does pose a risk to the safety of children and should have a Working with Children Check clearance.

Orders

118. The orders of the Tribunal are that:

1. Order that the application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 filed 18 May 2023 be dismissed.

2. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

**********

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: 19 December 2023