BQK v Children's Guardian

Introduction

1. This matter is an application commenced on 23 December 2014 seeking administrative review or appeal of a decision by the Children's Guardian which was notified to the applicant on 25 November 2014. The Children's Guardian informed the applicant who is referred to as "BQK" in these proceedings, that due to his conviction on 8 July 1997 of an offence of indecent assault under section 61L of the Crimes Act 1900 (NSW), he was not eligible to be granted a Working with Children check clearance. The applicant was sentenced for that criminal matter to 4 months periodic detention commencing 17 July 1997. The offence is one which is specified within Schedule 2 of the Child Protection (Working with Children) Act 2012 ("the Act").
2. On 21 May 2015 when this matter was first listed for hearing an order was made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. This order has continued. The matter was further heard on 6 October 2015 at which time additional evidence was provided by the applicant identified later in these reasons.
3. The applicant seeks an enabling order under section 28 (1) of the Act which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The enabling order would permit the applicant to work with children in any child-related work. The respondent opposes the application for an enabling order.

The Evidence

1. The documentary evidence provided behalf of the applicant and the respondent and received by the Tribunal is as follows: 1. Affidavit of the applicant dated 4 May 2015 and filed on 7 May 2015: Exhibit A1; 2. Report of Dr Christopher Cocks dated 30 April 2015: Exhibit A2; 3. Additional bundle of material provided to Dr Cocks under cover of letter dated 13 April 2015 and filed 21 May 2015: Exhibit A3; 4. Certificate from Interrelate dated 7 July 2015: Exhibit A4; 5. Letter dated 30 September 2015 from the applicant: Exhibit A5; 6. Written Submissions of the counsel for the applicant dated 6 October 2015: Exhibit A6; 7. Bundle of documents filed by the respondent on 26 February 2015: Exhibit R1; 8. Bundle of documents produced to the respondent pursuant to section 31 of the Act filed on 2 April 2015: Exhibit R2; 9. Further bundle of documents filed by the respondent on 15 April 2015: Exhibit R3; 10. Further documents filed on behalf the respondent on 1 May 2015: Exhibit R4; 11. Outline of Submissions on behalf of the respondent filed 20 May 2015: Exhibit R5.
2. There was no objection maintained by either party to the receipt of this evidence by the Tribunal.
3. The applicant gave oral evidence and was cross-examined. The expert retained by the applicant was also cross-examined.
4. The Tribunal received and was assisted by oral submissions in addition to the written submissions already provided.
5. A statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons.

Legislative provisions

1. The Act came into force on 15 June 2013.
2. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a working with children check clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act.
3. The safety welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act.
4. There, regrettably, is no relevant definition of "child abuse" contained in the Act.
5. However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children's Guardian [2014] NSWCATAD 115 at [19]-[30], an offence of "child and young person abuse" has been created in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence created by the section reads 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. Maximum penalty: 200 penalty units"
6. In BFX v Children's Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows: "The ordinary meaning of "child abuse" in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987."
7. This working definition was arrived at after considering the ordinary dictionary meaning of the words, combined with consideration of the various statutes including the definition contained in section 4 (1) of the Family Law Act 1975 (Cth).
8. The offence with which the applicant was charged and convicted is one which falls within clause 1(1)(e) of Schedule 2 of the Act. Therefore, the applicant is treated as a "disqualified person". By reason of section 18 (1)(a) of the Act the Children's Guardian must not grant a working with children check clearance to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as "disqualified persons", in the same section of the Act. The applicant is relevantly for the purposes of the Act now an adult and was an adult, aged over 18 years, at the time of the offence. The offence with which the applicant was charged was an indecent assault upon an adult woman in the circumstances referred to later in these reasons.
9. The applicant seeks a working with children clearance to work with children because his work requires him to perform services at childcare centres, while children are present. It appears to be a condition of his employment to be able to perform that role. In any event, the applicant is aggrieved that he cannot work with children due to the existence of the disqualifying offence.
10. An enabling order is therefore sought pursuant to section 28 of the Act which provides: "28 Orders relating to disqualified and ineligible persons (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an "enabling order"). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order"). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions."
11. The respondent, it is to be observed, is a necessary party to the proceedings pursuant to section 28 (4) of the Act.
12. A person is not permitted to engage in "child-related work" unless they hold a working with children check clearance: see section 8 of the Act. There is no issue in this matter that the applicant wishes to potentially engage in child-related work, or work which requires him to attend places where children are located, which therefore requires that the applicant obtains a working with children check clearance.

Standard of Proof and Onus of Proof

1. It can be seen from section 28 (7) of the Act that is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. The standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children's Guardian [2015] NSWSC 523.

Required Considerations

1. The Tribunal must consider the matters under section 30 of the Act when making a determination under section 28 of the Act. Those matters are: "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 total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (2) On an application under section 28 or 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. Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal."
2. The Children's Guardian received information pursuant to section 31 of the Act from the applicant's employer and various government agencies, including the police and the courts. That information was tendered in evidence and referred to earlier in these reasons: Exhibits R1-R4.
3. It must also be observed that section 28 (8) of the Act provides that an enabling order may not be made subject to conditions. This is a departure from the predecessor legislation and the case law which emanated from the repealed Child Protection (Prohibited Employment) Act 1998 (NSW): BKE v Office of the Children's Guardian, at [4], [25], [27].
4. The applicant is also required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act.

The Issues

1. The Tribunal is to determine whether the applicant has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut presumption that he poses a risk the safety of children: section 28 (7) of the Act; BKE v Office of the Children's Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before the Tribunal in order to assess whether the presumption has been rebutted. In other words, the Tribunal will review the evidence provided by the respondent as well as the evidence provided by the applicant in determining whether or not the applicant poses a risk to the safety of children.
2. The discussion which follows is repetitive of matters set out in earlier judgements of the Tribunal, but is set out in these reasons in order to provide the parties with a considered basis for the decision which follows from a consideration of the evidence in this matter. Additionally, it is recognised that a party aggrieved by a decision made under the Act 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; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126; BKE v Office of the Children's Guardian. The law applied to this decision is therefore set out in these reasons.
3. In determining whether the applicant does pose a risk to children it is accepted that the risk must be "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 69, 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); BKE v Office of the Children's Guardian [2015] NSWSC 523 esp at [26], [27].
4. In BKE v Office of the Children's Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]: [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). ... [31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made "unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw" (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ): "It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case." [32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists "an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access" (M v M at p 78). [33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with "unacceptable risks" but "real and appreciable" risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.
5. In the matter before the Tribunal the applicant has been convicted of an offence referred to in Schedule 2 of the Act. The applicant has also been convicted of other offences which are referred to in more detail in these reasons. The Tribunal is therefore required to take into account those convictions as proved on the criminal standard of proof, that is, beyond reasonable doubt.

Other matters

1. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (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 forms: sections 38 Civil and Administrative Tribunal Act 2013 (NSW); Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal 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.
2. The restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offence for which the applicant has been sentenced under section 61L of the Crimes Act 1900 (NSW) on 27 September 1996 in the Local Court and, on appeal, the conviction and the sentence was confirmed on 8 July 1997 in the Parramatta District Court: section 38 of the Civil and Administrative Tribunal Act 2013 (NSW).
3. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the Civil and Administrative Tribunal Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act 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.
4. 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 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] NSWIR Comm 101 at [130].

Consideration of the evidence

1. The evidence received by the Tribunal is required to be considered under each of the subheadings of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That evidence is now set out under each of the relevant statutory provisions as subheadings in these reasons.

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

1. The applicant set out in his affidavit filed in the proceedings (Exhibit A1) at paragraph [18] the following expression of remorse: "I deeply regret the past mistakes that I have made through my actions for which I have been found guilty of the criminal offences of indecent assault (1996) and assault (2009 and 2010). I make no excuses for these offences but I believe that I will never behave in this manner toward anyone ever again."
2. The allegations which were made about the applicant were summarised by the Magistrate in the criminal proceedings relating to the indecent assault in 1996 in Exhibit R1 at page 22, as follows: "Very briefly the allegations of the particular offences are that [the victim] who was seated in the front passenger seat and was the sole passenger, the only other occupant of the taxi apart from the defendant during this trip, that she was tired and was dozing off from when she got into the taxi, she awoke in [a street], the defendant had his hand up her skirt, was touching the inside of her groin or the top of her leg area, that the taxi was then driven off, that [the victim] certainly in evidence in chief says she dozed off again, awoke or became aware that the taxi had stopped in [a different street] near or in the vicinity of the [location] High School. The defendant was attempting to kiss her quite forcefully would be the effect of her evidence and again attempting to put his hand up her skirt. She said the defendant was quite persistent and at this time she was scared and she resisted. The trip then continued and the taxi made its way to near the residence of the alleged victim.... [The victim] exited the taxi, she fell to the ground, the defendant then, this is [the victim's] evidence, came to her, picked her up from the ground and held her from behind and pushed his groin up against her and [the victim] then left and went to her home."
3. The Magistrate assessed the evidence of the witnesses and came to this conclusion at page 28 of Exhibit R1: "... I am prepared to accept [the victim's] evidence and I am prepared to depend on it and that being so the evidence of [the victim] establishes the offence alleged and I am satisfied beyond reasonable doubt that the offence has been proved and I reject the defendant's evidence as a fabrication."
4. The sentencing remarks of the Magistrate are included in Exhibit R1 at pages 29-30. The Magistrate said: "...I consider for the unaccompanied female out at night time this defendant is that person, that female person's worse nightmare, it is quite common for persons, females in that category to rather than risk the perils of the street, the darkened streets to seek the sanctuary of the taxi, catch a taxi home is the advice given time and time again to females of all ages on their way out for a night somewhere or other... The defendant has taken advantage of a vulnerable female... As I have indicated I consider at this point given the seriousness of the offence, the circumstances of the offence that nothing other than a very substantial penalty can apply and that is something I have to consider gaol at this point it is going to be as I have indicated periodic detention which is what I consider to be the appropriate penalty in the matter. I do not consider anything less severe in terms of sentencing options is adequate." (sic)
5. The appeal to the District Court was not successful, the offence was proved, the appeal dismissed, and the conviction and sentence imposed by the Magistrate were confirmed on 8 July 1997: Exhibit R1 page 5.
6. The offence was serious. It was sufficiently serious to warrant a sentence of periodic detention. That sentence was not overturned or changed on appeal.

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

1. The offence of indecent assault occurred some 19 years in the past.
2. The conduct of the applicant since that time is referred to later in these reasons. In summary, there have been 3 convictions for assault in relation to the applicant's daughters.
3. The daughters of the applicant have remained living with him and his wife to the date of hearing. The applicant has now undertaken a course through Interrelate a certificate for which is dated 7 July 2015.

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

1. The applicant was aged 35 at the time of the offence of indecent assault.

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

1. The victim of the indecent assault was aged 34 at the time of the offence.
2. The vulnerability of the victim was referred to by the Magistrate in his sentencing remarks. Those remarks are referred to previously in these reasons.
3. The victim was vulnerable and was entitled to expect that she would be safe travelling in a taxi driven by the applicant.

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

1. The difference in age between the victim of the indecent assault and the applicant was 11 months.

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

1. The victim of the indecent assault offence was not a child.

The person's present age

1. The applicant is currently 54 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

1. The applicant's criminal history contained in Exhibit R2 is as follows: 1. 11/10/1984 Drive manner dangerous. Convicted and fined $500, licence disqualified for 12 months. 2. 27/9/1996 Indecent assault. Periodic detention 4 months commencing 11/10/1996 (Appealed). 3. 8/7/1997 Appealed against conviction. Parramatta District Court. Conviction confirmed: sentence to commence 170797. 4. 22/8/2009 Common assault (DV). Convicted and fined $400 and Court costs of $76. Bond section 9:12 months. 5. 26/11/2010 Assault Occasioning Actual Bodily Harm (DV) (2 counts). Dismissed. 6. 26/11/2010 Contravene prohibition/restriction in AVO (Domestic). Dismissed. 7. 26/11/2010 Common Assault (DV)-T2 (2 counts). Conviction. Bond section 9:12 months and Court costs $79.
2. It is considered that the total criminal history is serious particularly in relation to the indecent assault charge which renders him a disqualified person.
3. The conduct of the applicant since the conviction for indecent assault has not been exemplary. The applicant has been convicted of 3 charges relating to family violence perpetrated upon his daughters.
4. The applicant was convicted in August 2009 of the common assault of his daughter who was then aged 16 years old. The applicant admitted to hitting his daughter on the head with a shoe, whilst he was yelling and then wrestled her to the ground and dragged her around 2 metres across the floor to the front door. The apparent precipitator of this assault did not appear to be anything more than normal teenage behaviour by the daughter, and an overreaction to minor and ordinary domestic events by the applicant: Exhibit R2.
5. The applicant was convicted on 2 charges of common assault in November 2010. One of those charges related to an assault on his daughter whom he previously assaulted in 2009, then aged 16 years old. That daughter turned 18 years of age only 6 days prior to the assault in 2010. At the time of the assault the younger daughter was in the middle of her HSC examinations. The daughter was emotionally distressed and she was taken from the family home by her sister to stay with relatives, but subsequently returned home. It was alleged that in assaulting her, the applicant breached the conditions of an AVO granted in 2009. The other charge of common assault related to his other daughter then aged 23 years old. The applicant pleaded guilty to the Common Assault charges on the basis that the more serious charges of Assault Occasioning Actual Bodily Harm would be withdrawn and dismissed: Transcript 21/5/2015 page 29. It was alleged by the police that the applicant punched the 23-year-old daughter in the face no less than 6 times.
6. Both daughters currently reside with the applicant and his wife. There have been no further incidents reported.

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

1. The applicant relies upon the evidence of Dr Cocks: Exhibit A2.
2. The applicant has not repeated the offence of which he was convicted in 1996. That offence was an indecent assault upon an adult female.
3. The offence in 2009 was an offence of assault in the context of family violence when his daughter was still a child in terms of the Act.
4. The offences of assault in 2010 were perpetrated upon his children, one of whom was only just aged 18 (by less than a week), and both of whom were entitled to expect that they would be safe from being assaulted by their father. The applicant suggested to Dr Cocks that he pleaded guilty, at least in part, in order to save his children from having to give evidence in Court about him.
5. The impact upon children of a repetition of those offences in 2009 and 2010 would be not only frankly abusive, but also deleterious in more subtle ways to the healthy development of those children and young adults.
6. The applicant told Dr Cocks and the Tribunal in oral evidence that he has changed the way that he behaves around women not known to him and those women with whom he works. The applicant avoids being alone with women because he is now more aware of the importance of boundaries around women.
7. The applicant disclosed to Dr Cocks that he visited prostitutes on approximately 4 occasions in his early twenties when he was single. This has not happened again since the early 1980s. The applicant denied any interest in homosexual sex. The applicant stated that he had not contracted sexually transmitted diseases. The applicant denied any fantasy, urge or behaviour consistent with exhibitionism, voyeurism, frotteurism, toucherism, fetishism, transvestism, masochism or sadism. The applicant denied any current or past history of sexual interest in children. The applicant denied any fantasies related to pubescent or prepubescent girls or boys. The applicant stated he has a healthy sexual relationship in his marriage and that he has been faithful to his wife throughout their 30 years of marriage.
8. Dr Cocks stated that the "assessment of risk of future sexual offending is imprecise". Furthermore, "[i]t is not possible to accurately predict whether an individual will or [will] not reoffend with a sexual offence within timeframes.": Exhibit A2 page 5.
9. Another respected expert in her field, Dr Collins, places a similar cautionary note in her assessments. This was referred to with approval by the Tribunal in BGW v NSW Office of the Children's Guardian [2014] NSWCATAD 179 at [67] and referred to again with approval in BKV v Children's Guardian [2015] NSWCATAD 65, at [99]. It is as follows: "Dr Collins draws attention to the caution which should be exercised in respect of the practice of risk assessment. Relevantly, Dr Collins states in Exhibit A3 at [39]: 'Whilst risk assessment can be beneficial in providing important information about risk management, the practice in and of itself has limitations. Firstly, the base rate of sexual offender recidivism is low, which hence renders the prediction of such an uncommon behaviour as difficult. Secondly, risk assessment actuarial tools are normed upon groups of individuals and hence it is always unclear how any one individual will perform relative to the group that was studied. Furthermore, risk assessments are time-limited and only as good as the information on which they are based. They can change as new information becomes available, and all risk assessments have an appreciable level of error built into them. Risk assessments help to remove less clinical factors such as "gut feeling" and prejudice that can influence judgment. Although research typically highlights the superiority of structured risk assessment over unstructured clinical judgment as aforementioned, the evidence supporting such assessments is moderately valid only. Hence, decisions about risk are best made with multiple sources of data available, in which a formal risk assessment is only one such source of data (for a more detailed discussion see Mullen & Ogloff, 2009).' (References omitted)"
10. Dr Cocks utilised the Risk of Sexual Violence Protocol - RSVP (Hart et al 2003) in order "to formulate risk as opposed to predicting the risk of future sexual offending": Exhibit A2 page 5. Based upon the applicant's history there was physical and psychological coercion present during the commission of the offence. The applicant is not a chronic sexual offender. The applicant does not show diversity in his offending and the offending has not escalated. The applicant does not suffer from any sexual deviance. There are no recorded mental health issues including no evidence of any psychopathic personality disorder. According to Dr Cocks' assessment the applicant would be regarded as a low risk of repeat sexual offending. Dr Cocks states that he does not believe that the applicant "presents a risk to children that is greater than the risk of any adult preying on a child." Exhibit A2 page 6.
11. In his oral evidence on 21 May 2015 Dr Cocks, in summary, elaborated that the dynamic risk factors presented by the applicant are the assault convictions. The applicant had not engaged in psychological work around that offending behaviour. In order to minimise the potential for reoffending behaviour some psychological work particularly around anger management would be advisable: Transcript 21/5/15, page 56. That psychological work would "explore his behaviour and to improve his relationships with his wife and his children and his broader social community.": Ibid. Balanced against that omission there are some pro-social factors such as the maintenance of stable employment, no reoffending, no substance abuse, no mental health issues, no reported presenting with any mental health vulnerabilities to professionals.
12. The applicant sought an adjournment on 21 May 2015 for the purpose of undertaking some further psychological work as recommended by Dr Cocks. That adjournment was granted and the matter continued on 6 October 2015. At that time the applicant provided a letter he had written on 30 September 2015: Exhibit A5. In that letter the applicant identified that he had attended the Making Choices Program with Interrelate in June/July 2015. The topics covered were anger, responsibility and communication. The applicant recorded in that letter that he found that he had "grown" and considered that he was "now able to deal with difficult situations in a more calm and peaceful way".
13. The applicant also provided a certificate from Interrelate dated 7 July 2015: Exhibit A4. It is commendable that the applicant has undertaken this personal development. That type of assistance would have most probably benefited the applicant prior to and after the assaults upon his daughters.
14. As referred to earlier in these reasons, the Magistrate who heard charges against the applicant and ultimately determined his guilt in relation to the indecent assault offence considered that his evidence was "fabricated".
15. In answer to a series of questions from the Tribunal on 21 May 2015, the applicant responded in a way which tended to undermine the expression of remorse. Those questions and answers recorded at Transcript 21 May 2015 page 60, are as follows: "Senior Member: You're a father of daughters. If that happened to your daughter in a taxi, how would you feel? BQK: Very bad. Very... Senior Member: Angry? BQK: Very angry, very upset. You're right. Senior Member: And why would you feel angry? BQK: Because the taxi driver is not responsible properly. He is not responsible. He is not, he is not doing his responsibility. No. Like I said I was in the wrong but in the same time I'm not defending myself, I am wrong 100 percent. I should not have done what I have done. At the same time the womans should not be under alcohol influence and walking down in the street. Men and women: not only women. Any person he should not be in that situation but that does not mean I'm defending myself, I'm right. I'm wrong, 100 percent wrong, and am very sorry and I... Senior Member: Okay. Thanks." (sic)
16. The applicant through his counsel in final written submissions sought to rely upon that exchange to show the applicant's deep and genuine remorse for his actions. Whilst there is an expression of remorse, there is a repetition of some victim blaming present in the transcript of evidence of the applicant in 1996 from the Local Court contained in Exhibit R1.
17. The applicant has tended to minimise his conduct and its effect upon his victim in relation to the indecent assault offence, despite the expressions of remorse. The applicant also tended to minimise the effect upon his daughters of the domestic violence perpetrated against them. There is some doubt that he shows sufficient insight into his offending behaviours to be satisfied that they will not re-occur. The realisation about the necessity for further assistance with the applicant's psychological development and current status only came about after hearing the oral evidence of Dr Cocks. Whilst that is commendable action on the part of the applicant, the motivation for doing so occurred to the applicant only recently and in the middle of these Tribunal proceedings.
18. There has been no reported repetition of concerning conduct since 2010.

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

1. The applicant has provided some information including references, and a sworn affidavit: Exhibit A1. The applicant also gave oral evidence and was cross-examined.
2. The applicant expressed some remorse for the actions leading to his convictions in 1996, 2009 and 2010. The applicant has been married for approximately 30 years to the same woman.
3. The applicant has provided supportive and positive references from his employer and his dentist: Exhibit A1 Annexures 1 and 2. The weight to be attached to those references is diminished because of their failure to refer to the offence of indecent assault, and the failure to refer to the common assaults committed by the applicant. It is not known what effect knowledge of those criminal offences would have upon the referees' assessments of the applicant.
4. The applicant has completed the Interrelate course as evidenced by the certificate which became an exhibit.

Any other matters that the Children's Guardian considers necessary

1. The Children's Guardian made submissions addressing those other matters which the Children's Guardian considers necessary.
2. In particular reference was made to the evidence of the applicant before this Tribunal that he expressed regret for the offence particularly its effect upon him and his family, rather than giving sufficient thought to its effect on the victim.
3. The respondent submits that the applicant has not discharged the onus to prove that he does not pose a risk to the safety of children.

Consideration and determination

1. The applicant is a relatively mature man. It may thus be difficult for him to change his way of looking at the world without significant assistance.
2. The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms. The behaviour in relation to the indecent assault was unplanned and opportunistic and exhibited a lack of self control and incapacity to implement any ameliorating strategies. It would appear from the criminal history that the behaviour of the applicant is characterised by a lack of empathy particularly for female victims leading to the criminal events. The applicant has not been able to show that he has the capacity to prevent repetition of these threats to vulnerable girls or women.
3. The behaviour, if repeated, would do significant harm to the victims. The paramount principle under the Act includes protection of children from suffering abuse.
4. There is a lack of evidence of mitigating factors such as examination of the reasons for the violent behaviours towards his daughters since the behaviours occurred. The Interrelate course was undertaken after the proceedings in this Tribunal had commenced and during an adjourned period of time specifically granted for that purpose. There has been a recurrence of criminal behaviours over an appreciable period. There is little evidence of genuine and sustained effort to remedy the conduct and past behaviour. There has been a commencement of that effort.
5. Remorse on its own is not considered to be a factor that mitigates risk and without more than an expression of such sentiment, is a hollow response to an existing behavioural reaction. The remorse expressed by the applicant was said by Dr Cocks to be remorse for the actual assault and for its impact on his children and his family, particularly his wife according to the applicant's oral evidence, but also remorse for the fact that he had an assault charge.
6. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. 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.
7. 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.
8. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed to children.
9. The applicant has not discharged the onus to prove that he does not pose a risk to the safety of children. The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children.

Conclusion

1. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act and having regard to the material before the Tribunal it is concluded that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance. It is presumed unless proven to the contrary that the applicant is such a risk. The evidence has not discharged the onus to prove that the applicant is not such a risk.
2. The order of the Tribunal is that: 1. The decision of the Children's Guardian dated 25 November 2014 to refuse to grant the applicant a Working with Children Check clearance is affirmed. 2. The application for appeal of the decision of the Children's Guardian and for an enabling order filed 23 December 2014 is otherwise refused and dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2015