GDY v Children's Guardian

[2024] NSWCATAD 239

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

GDY v Children’s Guardian [2024] NSWCATAD 239

Hearing dates:

On the papers (Submissions closed 27 June 2024)

Date of orders:

14 August 2024

Decision date:

13 August 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member (Legal)
E Hayes General Member (Community)

Decision:

The application is dismissed.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable – interim bar – basis for risk assessment – weighing evidence – veracity of allegations – testing of evidence – jurisdiction – moot

Legislation Cited:

Administrative Decisions Review Act 1997

Children and Young Persons (Care and Protection) Act 1998

Child Protection (Prohibited Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Child Protection (Working with Children) Regulation 2013

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

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 NSW Office of the Children's Guardian (No 2) 2014 NSWCATAD 164

BKE v Children’s Guardian [2015] NSWSC 523

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

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

CXZ v Children’s Guardian [2020] NSWCA 338

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

M v M (1988) 166 CLR (HCA)

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

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:

Nil

Category:

Principal judgment

Parties:

GDY (Applicant)
Children’s Guardian (Respondent)

Representation:

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

File Number(s):

2024/00049826

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 an Order under s 27 (3) of the Child Protection (Working with Children) Act 2012 (‘the Act’) so that they may reobtain their Working with Children Check Clearance (WWCCC). The applicant seeks the reinstatement of their clearance because the respondent imposed an Interim Bar on them.

2. The matter has a somewhat complicated procedural and factual background. Essentially information came to the attention of the regulator, the Children’s Guardian, who is the respondent in these proceedings. The information did not directly concern the applicant (who is referred to as GDY) but directly referred to her spouse. GDY was said to be posing a risk of harm to children because she did not accept the information or material relating to her spouse as having any factual basis. The import of the information concerning the spouse meant that GDY was directed by the Department of Education Early Childhood Education Care Directorate (DoE ECECD) to take certain actions to not allow the spouse to attend the Outside School Hours Care (OSHC) facility where GDY was the nominated supervisor and operator.

3. The Children’s Guardian determined to impose an Interim Bar on GDY and then conducted a risk assessment to determine whether (essentially on the above matters) she posed a risk to the safety and well being of children. GDY had already determined that on the basis of untested allegations she was not willing to take any action concerning her spouse having regard to maintaining his mental well-being. As a result of that position and the imposition of an Interim Bar, GDY’s working with children check clearance (WWCCC) which she needed to operate the OSHC was in effect suspended because of the Interim Bar remaining in place and a subsequent risk assessment to be conducted.

4. The applicant is referred to as ‘GDY’ in these proceedings. GDY is the applicant's pseudonym used in these proceedings in conformity with an order made under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

5. On 8 February 2024 GDY filed an application with the Tribunal. That application seeks an order under s 27 (3) of the Act for an Administrative Review of the decision to impose an Interim Bar. In effect GDY seeks a finding that she does not pose a risk to the safety of children. She is seeking for the Interim Bar to be set aside and her WWCCC reinstated.

6. As noted, these proceedings arise because on 24 March 2023, the Children's Guardian who is the respondent or contradictor in these proceedings issued GDY with a Notice of Interim Bar and risk Assessment in accordance with s 17 of the Act.

7. The Act makes the following provisions concerning administrative reviews by the Tribunal of decisions relating to WWCCC’s. Section 27 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.

(Emphasis added)

8. The Interim Bar was imposed on GDY on 24 March 2023. GDY’s WWCCC had issued for five years, which is routine. The WWCCC had issued on 11 March 2019 and when the Interim Bar was imposed the clearance was due to expire on 11 March 2024. The last WWCCC issued to GDY has expired having done so approximately five weeks after she lodged her Administrative Review with the Tribunal under s 27 (3) of the Act.

9. As a result it is arguable that GDY’s administrative review application is now moot through no fault of her own. Section 27 (3) provided that GYD had to wait until at least 24 September 2023, being more than six months after the Interim Bar was imposed, before she could come to the Tribunal. Potentially in the period September 2023 to March 2024 GDY could have applied to the Tribunal and had her matter determined one way or another prior to the existing clearance expiring. For a range of reasons this did not occur until 8 February 2024 five weeks prior to the clearance expiring.

10. The Tribunal notes that the Interim Bar (like the clearance) is no longer in effect against GDY because her clearance, which the Bar applies to, is expired and as such extinguished. The Interim Bar was only applicable to the current WWCCC.

11. Section 17 of the Act provides the following in respect of Interim Bars:

17 Interim bars

(1) The Children’s Guardian may, at any time after receiving an application for a working with children check clearance or commencing an assessment of an applicant for or holder of a clearance, determine that the applicant or holder is subject to an interim bar, being a bar on the applicant or holder doing any of the following—

(a) engaging in child-related work,

(b) residing on the same property as an authorised carer,

(c) residing on a property where a family day care service is provided.

(2) The Children’s Guardian may make a determination under this section if it is of the opinion that it is likely that there is a risk to the safety of children if the applicant or holder engages in child-related work or resides on a property referred to in subsection (1)(b) or (c) pending the determination of the application or assessment.

(3) The Children’s Guardian must as soon as practicable after determining that an applicant or holder is subject to an interim bar, give written notice of that determination to the applicant or holder and to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the applicant or holder.

(4) An interim bar ceases to have effect—

(a) on notification in writing by the Children’s Guardian to the applicant or holder that the interim bar is revoked, or

(b) in the case of an applicant for a clearance, if the applicant is granted or refused a clearance, or

(c) 12 months after the interim bar takes effect,

whichever occurs first.

12. Pursuant to the above provisions of s 17, the Interim Bar expired on 11 March 2024. Had the WWCCC not expired at that time the Interim Bar would have in any event expired a couple of weeks later on 24 March 2024.

Procedural History before the Tribunal

13. Because of the need to ascertain jurisdiction, in our view it is necessary to set out the procedural history of GDY’s application before the Tribunal.

14. When her Administrative review application was lodged in early February 2024 she also lodged an Application for a Stay under s 60 of the Administrative Decisions Review Act 1997 (the ADR Act). Prior to the Stay application being determined the Interim Bar expired on 11 March 2024 with the expiration of the clearance. In the interim GDY had applied to the Children’s Guardian for a fresh WWCCC as she wished to continue working in the OSHC. That application was made on 28 February 2024. As can been seen from these events there was significant activity in the period 8 February 2024 to 11 March 2024 with the application to the Tribunal, the expiring of the clearance subject to the Interim Bar, the expiry of the Interim bar and a fresh application for a WWCCC.

15. Following those events the Children’s Guardian brought an application to summarily dismiss the application before the Tribunal due to lack of jurisdiction. That application was filed on 20 March 2024. The basis of the application being that the underlying decision subject of the administrative review was legally spent.

16. The Tribunal (as presently constituted) understands that the Children’s Guardian’s summary dismissal application was refused by the Tribunal. As a result the Administrative Review application remains on foot. The Children’s Guardian does not dispute this observation noting that no appeal of the summary dismissal decision was lodged by them. In that context on 31 May 2024 the Children’s Guardian advised that they now supported GYD’s review application and that the Tribunal should find that no Interim Bar be imposed on GDY. On this basis they sought for the matter to proceed on the papers by dispensing with a hearing in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).

17. After received submissions form both parties on this issue the Tribunal made orders in accordance with s 50 (2) of the NCAT Act on 27 May 2024 and dispensed with a hearing of the application.

18. The Tribunal notes that while the review was awaiting the initial hearing the Children’s Guardian had sought documents from the Local Court regarding some charges relating to GDY’s spouse and some evidence concerning GDY herself. This was the material that both parties were invited to respond to prior to the notional hearing date of 7 June 2024, with the matter now being determined on the papers. The Tribunal received that material in chambers to determine whether the hearing of 7 June 2024 could be dispensed with notwithstanding that the parties had provided submissions in favour of proceeding without a hearing.

19. Upon review the Tribunal agreed that no witnesses related to the proceedings were required to be cross examined at hearing. The main basis of this position being that the Tribunal formed a preliminary view that the material was ultimately favourable to GDY and her spouse.

20. In addition, in proceeding to now consider GDY’s application the Tribunal notes that the Children’s Guardian had commenced assessment of whether GDY posed a risk to the safety of children. That is because the interim Bar expired by force of the expiry of GDY’s WWCCC and so the Guardian had no basis to commence (or continue) with their mandated risk assessment under s 17 (2) of the Act. As the application remains before the Tribunal it would be open to the Tribunal to either (a) dismiss the application due to lack of jurisdiction, or (b) make a determination as to GDY’s risk to children in accordance with the provisions of s 17 (2) of the Act. That section provides the basis for consideration as to whether an Interim Bar should remain in place. The section provides;

(2) The Children’s Guardian may make a determination under this section if it is of the opinion that it is likely that there is a risk to the safety of children if the applicant or holder engages in child-related work or resides on a property referred to in subsection (1) (b) or (c) pending the determination of the application or assessment.

21. Because the Interim Bar had ceased by the time the hearing was being considered the Children’s Guardian submitted in written submissions of 3 June 2024 that no decision had been made by them as to whether or not GDY posed a risk to the safety of children at the time that the Interim Bar was imposed. However in reply submissions filed 27 June 2024 the Children’s Guardian stated that they had commenced a risk assessment pursuant to s 15 (3) of the Act (while the Interim Bar was in place). It was unclear to us whether that process related to the subsequent WWCCC application which is not before the Tribunal.

22. Our preliminary view is that at the time of the application to the Tribunal there was jurisdiction to determine the matter. On that basis it appears orthodox that the application continue to finality. Whilst the decision under review might be argued as otiose due to the occurring of certain events, the position is no different to many other administrative review applications before the Tribunal whereby for example an occupational or other licence is revoked and by the time the review comes on for hearing the underlying licence has expired.

23. The determination of the Tribunal as applied to the facts and circumstances of the initial decision is often advisory and guides the respondent regulator on any fresh application to them for consideration. In this regard we note that GDY subsequently applied for a fresh WWCCC on 28 February 2024 to the Children’s Guardian. Whilst we have no specific power in this regard we observe and recommend that the Children’s Guardian consider the findings in these proceedings when processing and determining that application.

Background to the Interim Bar

24. From the material before the Tribunal two records came to the attention of the Children’s Guardian in February 2023. These records were held by the DoE ECECD. One record related to a decision to suspend provider approval for the OSHC in December 2021. The other record related to a decision to terminate the operating licence of the OSHC. These records resulted in the imposition of an Interim Bar with the subsequent commencement of a risk assessment into GDY in order to determine whether she posed a risk to children.

25. In conducting their risk assessment the Guardian was required to follow s 15 of the Act and specifically weigh the evidence against the criteria in s 15 (4) and s 15 (4A) of the Act. Those sections provide:

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.

(4) In making an assessment, the Children’s Guardian may consider the following—

(a) the seriousness of any matters that caused the assessment in relation to the person,

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

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

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

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

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

(g) the person’s present age,

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

(i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,

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

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

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

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

(4A) The Children’s Guardian may determine an applicant or holder does not pose a risk to the safety of children only if the Children’s Guardian is satisfied—

(a) a reasonable person would allow the person’s child to have direct contact with the applicant or holder—

(i) while not directly supervised by another person, and

(ii) while the applicant or holder was engaged in child-related work, and

(b) the making of the determination is in the public interest.

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

26. We note that the imposition of an Interim Bar and the subsequent conducting of a risk assessment sit differently contrasted with when a risk assessment is done in respect of an application for a WWCCC or a person becomes disqualified from holding the clearance. Other than responding to requests for information an individual subject of an Interim Bar appears to be totally in the hands of the Children’s Guardian as adjudicator unless they apply for an administrative review six to 12 months after the bar was imposed.

27. The decision to impose the Interim Bar was made under s 17 of the Act. In this regard the matter for determination by the Tribunal is whether applying the statutory test under s 17 (2) of the Act, having regard to all the evidence and material before the Tribunal, is it likely that there is a risk to the safety of children if GDY was permitted to engage in child related work. An additional consideration in the test (but otherwise not relevant to GDY’s circumstances as we know them), is that in addition to child related work, would there be any risk if GDY was to reside on property referred to at s 17 (1) (b) and (c ) as outlined above at [11].

26. Because the Interim Bar became spent in March 2024 the Tribunal is not required to consider the additional tests under s 30 (1A) of the Act as the only issue remaining for the Tribunal to consider is whether GDY is a risk (as per s 30 (1) of the Act). The Interim Bar no longer prevents GDY from working with children, but rather it is her lack of a WWCCC that prevents her engaging in child related work.

27. In respect of the decision to suspend the operating licence of the OSHC facility it appears that decision arose from a compliance issue rather than a direct risk concern. The issue as set out before the Tribunal is that GDY was directed by the Department of Education to exclude her spouse (who also worked at the OSHC facility), from that facility. When GDY failed to comply with the direction the Department determined that her actions (or lack of actions) posed an immediate risk to the health, safety and well-being of children. A reference was also made by the Department (but not supported by any direct evidence before us) that they held concerns about GDY’s fitness and propriety to operate the facility because of this refusal or failure to comply.

28. The Tribunal notes however that prior to the Interim Bar being issued in March 2023 the Department of Education conducted an Internal Review of the decision to suspend the operating licence. That review took place in January 2022 and was finalised by letter dated 27 January 2022 which whilst finding that there were grounds to suspend the licence at that time, on the totality of the evidence the decision to suspend was not the correct and preferable decision.

29. In that regard the suspension was set aside by the reviewer and instead two conditions were imposed on GDY’s provider approval and one condition was imposed on her service approval. These conditions did not relate to any issue around risk to children and do not count against GDY in that regard.

30. This material was not before the Children’s Guardian until GDY provided it in response to the decision to impose an Interim Bar. The suspension decision was actually set aside 14 months prior to the imposition of the Interim Bar.

31. The Internal Review found that GDY had sought information from the Department to ensure that the exclusion of the spouse would not place the facility under the permitted staff to student ratios. GDY also sought input from the governing committee including the Parents and Citizens Association (P and C) representative. It transpired that the purported failure to exclude the spouse lasted only 18 minutes whereby during that relatively short time GDY sought the advice and input referred to above. GDY separated her spouse from children by placing him in the Office for that period of time.

32. A further matter arose a couple of months later whereby the Department indicated that they would be terminating the facility’s operating licence. These matters were unrelated to the earlier suspension of the operating licence and provider approval.

33. GDY outlined to the Children’s Guardian as part of the response to the Interim Bar that a different section of the Department were in the process of terminating all operating licences for out of hours school care in circumstances where the OHSC’s were not run by the Local P and C. The purpose of this was apparently to enable a fresh tender process for the licences to occur. The Tribunal notes that the long term licence for the OSHC facility had expired a few years prior and that the Department had in the interim renewed the licence on a monthly basis.

34. As part of the Interim Bar response GDY provided some contextual information to the Children’s Guardian. She lived with her spouse and her daughter and for some of that time (between 2021 and 2022) the granddaughter also lived with them. An allegation was made in 2021 by the daughter and the granddaughter that GDY’s spouse had sexually touched the granddaughter. GDY had submitted that the granddaughter had concocted the allegation because she held concerns that GDY and her spouse would apply for custody of the granddaughter. In essence a pre-emptive allegation to thwart any future application for custody. This allegation, serious as it is, had an apparent unintended consequence in that members of the local community launched a campaign attacking GDY, her spouse and daughter. GDY provided the Children’s Guardian with screenshots and photos supporting the existence of this campaign of harassment.

Further background matters

37. Because of the allegations against the spouse he was subsequently charged with two offences of sexual touching of a child between 10 and 16 years and another offence of incite sexual touching. In this context the spouse was identified by the Department of Communities and Justice (DCJ) as a person causing harm for alleged sexual abuse of a child.

38. It is uncontroversial that all charges were dismissed after hearing once the spouse was found not guilty. GDY submitted that the Magistrate who heard the case ultimately found that the daughter and granddaughter had fabricated the charges.

39. Other than the sex based allegations against the spouse a further matter arose which appears to have it’s provenance in the community harassment campaign directed against GDY and some of her family in connection with the sexual touching allegations.

40. GDY was charged with affray and behave in an offensive manner. This related to an alleged altercation between GDY, her spouse and another couple in a retail area in their regional centre. Following a lengthy hearing all charges were dismissed against GDY and critical comments were made by the Magistrate concerning the evidence and truthfulness of the alleged victim / complainants. The Tribunal has had the benefit of the Transcript of that hearing (as referred to at [18] above).

41. Some other matters were held in records of DCJ relating to complaints about GDY’s behaviour in the community and conduct towards and in the presence of children. The allegations concerned: GDY allegedly sending an abusive message to an adolescent child, GDY allegedly attempting suicide in her home, and an allegation that GDY showered naked with her daughter. GDY provided a detailed response to the Children’s Guardian on all of these allegations as part of her response to her most recent application for a WWCCC. We address these matters briefly in the s 30(1) consideration below.

Jurisdiction of the Tribunal

42. As discussed above 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

43. The issue to be decided by the Tribunal is whether on the balance of probabilities GDY poses a risk to the safety and well being of children. In reaching this position the Tribunal is required to consider whether there is a risk to the safety and well being of children if GDY was to engage in child related work. However as noted above, as we are not considering the subsequent WWCCC application of GDY lodged on 28 February 2024. As outlined in the paragraphs above the Tribunal does not have jurisdiction to direct that a clearance be issued or granted. Again, that is because that application is not before us and the application before us is now moot as the Interim Bar and that clearance have both lapsed, as we have detailed above. However in accordance with the history of the matter we will now embark on a consideration of GDY’s risk, having regard to the some 1,100 pages of material submitted by the Children’s Guardian and the 200 pages submitted by GDY.

44. In addition, in reaching that position, and noting the Children’s Guardian’s submissions, 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

45. 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.

46. 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.

47. 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. In this matter GDY does not currently hold a clearance.

48. 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.

49. GDY has not as we understand it been subject to a risk assessment as the Children’s Guardian noted that the Interim Bar and the existing clearance both expired prior to any assessment being either conducted or completed. (The final submissions indicate that such an assessment has commenced but was not concluded, as we have noted above). In this regard the hearing de novo we conduct on Administrative Review concerns matters that have not independently been considered to finality by the Children’s Guardian, only the decision to impose the Interim Bar.

50. A notice of proposed refusal of the clearance did issue but this seems to have been based solely on the matters concerning the Interim Bar decision not a consideration of the matters set out at s 15 of the Act.

51. Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal in respect of a decision to impose an Interim Bar, as set out at [7] above.

52. A review of the decision to impose an Interim Bar is dealt with under Part 4 of the Act. Section 30 of the Act applies to all matters dealt with under Part 4 and sets out the factors that the Tribunal must consider in determining a review application in order to determine risk. Section 30(1) of the Act provides:

30 Determination of applications and other matters

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

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

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

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

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

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

(g) the person’s present age,

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

(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.

53. Ordinarily if at the conclusion of the s 30 (1) process the Tribunal determines that an applicant for a clearance is not a risk to the safety of children, then the Tribunal must consider the matters set out at s 30 (1A) of the Act. However as we discuss at [9] – [10] and [16] – [23] above we are not required to consider these aspects and provisions because GDY does not have a current WWCCC application still pending that concerns this administrative review. As noted above, if we find that GDY is not a risk on the available evidence, that is the end of the matter, and we would make a recommendation to the Children’s Guardian which they are not bound to apply. If we find that GDY is a risk, likewise the Children’s Guardian may apply that information into their risk assessment on the current separate WWCCC application.

54. We stress that these somewhat confusing circumstances arise because of the unique series of events in the period February – March 2004 and the related background, including the background before the Tribunal as we have explained above.

Burden of Proof

55. 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].

56. 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].

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

58. 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". ...'

59. These observations of Young CJ (in Equity) had 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.

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

61. We note that ‘risk’ has 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.

62. There is no statutory presumption that GDY is a risk to children as contrasted with an applicant for an Enabling Order under s-28 of the Act . (s 28(7)).

The hearing

63. As noted above the matter was to be heard before the Tribunal however shortly before the hearing date both parties filed consent orders seeking to have the matter determined in the absence of a hearing, ‘on the papers’.

64. Section 50 of the NCAT Act sets out when hearings are required.

50 When hearings are required

(1) A hearing is required for proceedings in the Tribunal except—

(a) in proceedings for the granting of leave for an external or internal appeal, or

(b) in connection with the use of any resolution processes in proceedings, or

(c) if the Tribunal makes an order under this section dispensing with a hearing, or

(d) in such other circumstances as may be prescribed by the procedural rules.

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first—

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

(5) This section does not prevent the Tribunal from holding a hearing even if it is not required.

(Emphasis added)

65. On 27 May 2024 the Tribunal differently constituted made an order (by consent) dispensing with a hearing pursuant to s 50 (2) of the NCAT Act.

66. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

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

(a) any relevant factual material,

(b) any applicable written or unwritten law.

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

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

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

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

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

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

Written submissions

68. Both parties filed written submissions and we have set out many of the factual and procedural arguments above in our jurisdictional and background analysis.

68. The Children’s Guardian submitted that on the basis of the material before the Tribunal, the Tribunal would find that GDY does not pose a real and appreciable risk to the safety of children.

69. The Children’s Guardian submitted that in those circumstances it supported the application.

Consideration

71. Having considered the evidence and submissions as set out above we will now consider the mandatory considerations in determining the matter in the way provided for under the Act. We set out and discuss much of the relevant evidence in addressing these mandatory considerations.

Section 30 (1) considerations

72. 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.

73. GDY’s application to the Tribunal is brought about by a Notice of Interim Bar. We note that the first matter concerned the alleged non compliance of GDY with the National Law (as detailed above) in respect of operating the OSHC Facility. We note that on Internal Review all of these matters fell away. We also note that the Children’s Guardian no longer presses those matters as a valid basis for the Interim Bar bearing in mind the Internal Review findings issued over a year prior to the imposition of the interim Bar on GDY’s WWCCC.

74. Like the Children’s Guardian, we are not entirely certain as to what the Department relied upon to terminate the operating licence of the facility. It would appear that the explanation given by GDY has some merit in that no adverse findings were made against any person or person during that process. These two matters were the matters that the Children’s Guardian relied upon in imposing the Interim Bar.

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

75. It is clear that the matters referred to under s-30 (1) (a) occurred fairly recently in that they occurred in December 2021. It appears that whilst the suspension decision was overturned on Internal Review, GDY has not since that time engaged in any child related work primarily due to the lack of a WWCCC.

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

76. The applicant (GDY) was 50 and 51 years old when the matters in s 30 (1) (a) 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.

77. There are no specific victims to matters that caused the imposition of the Interim Bar.

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

78. Like the response to s 30 (1) (d) above, the Interim Bar incidents were related to the National Law and did not involve any specific beach of those provisions concerning neglect or failure in a duty of care. As such no specific victims are identified.

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

79. Whilst there are other matters concerning subsequent allegations that GDY covered up allegations concerning the spouse, like s- 30 (1) (d) and (e) no victims are identified.

(g) The person's present age.

80. GDY is now 53 years old. If GDY was an offender this requirement might be relevant to the consideration of risk. In our view it is not relevant, however, we must consider it, as we have, as it is a mandatory consideration under the section.

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

81. GDY does not have a criminal record. Her criminal history is that she was charged with the offence of affray. This offence is under s 93C of the Crimes Act 1900 which provides:

93C Affray

(1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.

(2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

(3) For the purposes of this section, a threat cannot be made by the use of words alone.

(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5) Affray may be committed in private as well as in public places.

82. These charges were dismissed in their entirety at hearing. CCTV evidence showed that there was no basis for the charge against either GDY or any offence involving her spouse.

83. Another allegation against GDY concerned sending an allegedly abusive message to a 15 year old is addressed by evidence that the only evidence is the actual allegation. The message itself was not before the Tribunal. In a protective regime appropriate boundaries between adults and children should exist when adults are communicating with children. GDY submitted that the recipient was 16 years of age and the message was in response to an abusive message sent by the 16 year old.

84. In respect of the allegation that there was a suicide attempt by GDY, this appears to be a mistaken observation of something that GDY was doing. No intention to harm a child was evident nor was there any evidence that the matter occurred in the manner that the daughter referred. It was a primal response to frustration in the context of feeling overwhelmed according to the submissions of GDY. No suicidal ideation or intrusive thoughts were present. GDY submitted that wrapping a cord around her neck in the home was not done with the intention of committing suicide and was not intended to be seen by her daughter. Her General Practitioner determined that there was no risk to GDY after the daughter reported it to Police.

85. The final matter relating to GDY’s own alleged conduct concerned a report of her showering naked with her daughter. The matter was not pursued by DCJ after GDY’s explanation that her upbringing encouraged being comfortable with nudity but not touching. GDY accepted the updated advice of DCJ .

86. In respect of the allegations of a serious criminal nature against the spouse the parties conceded that those charges have been finalised with no adverse outcome for the spouse. We agree with the Children’s Guardian that in the absence of any further evidence about those matters, other than that above and GDY’s evidence that they were malicious and arose in the context of a family dispute, no finding can be made. In our view the matters (on the evidence produced by both parties before us), must carry little weight against GDY.

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

87. GDY’s matters concerning potential risk to children are minor in the context of mandatory risk assessments, mainly because GDY has not been charged with any offence for which there are remaining concerns, nor has she been convicted of any offence.

88. Whilst the Children’s Guardian can conduct a risk assessment on any application under s 15 (3) of the Act, it is clear that in this matter the Interim Bar was the only practical reason that such an assessment was considered. There was no trigger or index offence as set out in schedule 1 of the Act.

89. In addition, the seriousness of the matters that caused the imposition of the Interim Bar is significantly mitigated due to the understanding of the Internal Review findings. It appears that had the Children’s Guardian been aware of the Internal Review findings between January 2022 and the decision to impose the Interim Bar in March 2023, no Interim Bar would have been imposed and GDY would have been spared her responses to those matters and these proceedings.

90. When the Internal Review is analysed it is clear that the breach of the National Law was not egregious, but rather a technical breach (allowing the spouse to remain for some 18 minutes) in the context of GDY trying to obtain advice and information to allow her to otherwise comply with the National Law in such exigent circumstances.

91. In this context it seems unlikely that there is any risk that would be real and appreciable, or that in future there would be any risk to children. GDY is a woman now into her 50’s and has no criminal record or sustained adverse findings relating to care against her.

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

92. There are no relevant matters under this provision.

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

93. GDY provided detailed submissions and provided examples of the evidence and material she provided to the Children’s Guardian to support her position on the Interim Bar and this review.

94. In our view GDY’s position has essentially been borne out by the evidence, or lack of adverse evidence against her, and, to the extent relevant, her spouse.

(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 Children’s Guardian submitted that it supported GDY’s application, and that on the available evidence the Tribunal should not find that GDY is a risk to children.

Consideration

97. Turning to how the Tribunal should discharge its statutory functions on the evidence we note the guidance from the Courts of record. In the case of BKE v Children’s Guardian [2015] NSWSC 523 Beech-Jones J sets out the approach that the Tribunal should take. Unlike the current matter, BKE dealt with an enabling order application.

98. At pars 29 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).

99. The Courts on two maters, one concerning GDY and one concerning her spouse have made findings that the matters should be dismissed. In GDY’s instance the Court observed that there was no prima facie case, GDY and her spouse’s actions were considered by the Court as reasonable and essentially the only course open to them in the circumstances, and did not constitute any offence. The witness / complainant’s on the other hand were criticised and referred to as wholly unreliable in respect of both their complaints and their evidence at hearing.

100. Returning to BKE we note the reference to risk and unacceptable risk. At [32]:

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).

101. In these proceedings our substantive role is to assess risk, and whether specifically GDY poses a risk to the safety and well being of children and young people. We have based our consideration on all of the evidence given by the parties in documentary form in the absence of a hearing. The evidence was not tested by cross examination however we note that the evidence appears largely uncontroversial between the parties.

102. We note that the Court of Appeal in the case of CXZ has reinforced the matters central to what the Tribunal must address when the Tribunal is assessing overall risk. As Simpson AJA points out at 79 of CXZ set out at [90] above when noting that the language of M v M:

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

103. In respect of the criminal allegations we adopt the findings of the Local Court. Further, when applying the civil standard we believe that on the available evidence it is not possible to find that any offence occurred involving GDY on the basis of the material; before us in evidence from the Local Court transcript, and we so find.

104. In respect of the DCJ matters we are unable to make any positive findings in the absence of testing the evidence, but it would appear highly likely that the matters occurred in the manner that GDY submits that they did. In that regard in our view the risk is neither real or appreciable in respect of harm to children, and we so find.

105. In respect of the basis for the Interim Bar we would find that the decision to impose the Interim Bar could not be supported on a factual basis, but understand that it was imposed on the basis of limited evidence initially available at the time. Why the substantive evidence of the Internal Review of those matters was not available to the Children’s Guardian we simply do not know, but again we note the maters that we observed at [89] above.

106. We are unable to make any findings about this aspect as the Interim Bar has expired.

Finding as to risk

107. Based on a consideration of all of the evidence, and noting the guidance from CXZ we are not satisfied that GDY currently poses a real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we find that the applicant (GDY) does not pose a risk to children and young persons.

108. Whilst the matters involved the provision of care to children, including in a family context with children in the home, and noting that this is a protective regime, in our view there was no evidence of any direct risk to children in GDY’s behaviour.

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

Conclusion

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

111. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that GDY does not pose a risk to the safety and wellbeing of children.

112. In our view, having regard to all of the material before the Tribunal, GDY does not currently pose a risk to the safety of children.

113. It therefore follows that the Tribunal recommends that the Children’s Guardian consider these findings in the current application for a Working With Children Check Clearance by GDY which is presently before it.

114. It follows that whilst we find that GDY does not pose a risk, and we make the recommendation that we have above. However, for the reasons outlined earlier in these reasons concerning jurisdiction, as the WWCCC and Interim Bar have now expired, the application to the Tribunal will be procedurally dismissed.

Orders

1. The application is dismissed.

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

Amendments

18 September 2024 - [20] Removed the words 'not' and 'any'.

Decision last updated: 18 September 2024