BRF v Children's Guardian [2015] NSWCATAD 169 | Case summary

NCAT Administrative and Equal Opportunity|2015-07-16

The applicant's present age

At the time of the Tribunal hearing, the applicant was 56 years of age.

The seriousness of the applicant's total criminal record and the conduct of the applicant since the matters occurred

The applicant has no criminal record. Although the NSW Police were notified of the sexual misconduct allegations, criminal charges have not been laid as the victim has not wished to provide a statement for the purposes of criminal proceedings.
As indicated previously, the applicant was investigated by EPAC for another matter, namely, a conflict of interest in relation to his employment of his son at the school of which he was the principal. That allegation was sustained by the Director.
Apart from the matter which led to the refusal of the applicant's application for a working with children check clearance, there is no evidence of any other sexual misconduct and/or grooming behaviour committed by the applicant.
Since the matters occurred, the applicant has held senior roles in education, including as deputy principal, principal, and relieving school education director. He has been awarded for his work in education and has been involved in a number of volunteer and community roles.

The likelihood of any repetition by the applicant of the conduct and the impact on children of any such repetition

In regard to the likelihood of any repetition of sexual re-offending, the applicant relied on the report and evidence of Mr Craig Baker, Psychologist, dated 11 May 2015.
Mr Baker is the applicant's current treating psychologist. The applicant was referred to Mr Baker by his general practitioner, Dr C. At the time of the Tribunal hearing, Mr Baker had seen the applicant on a number of occasions, including in the last several months. For the purposes of his assessment of the applicant, Mr Baker had various documents available to him, including the EPAC allegations and other documents produced by the respondent.
Mr Baker, who stated the applicant was very communicative and forthright during assessment, conducted psychological testing of the applicant using the Depression Anxiety and Stress Scale (DASS-21), Personality Assessment Inventory (PAI), and the Static-2002R. On the basis of those assessments, taken together with the applicant's clinical history and presentation, Mr Baker opines the applicant has a diagnosis of Major Depressive Disorder (Recurrent, Mild) and Adjustment Disorder, With Anxious Distress.
In relation to the DASS-21 assessment, Mr Baker states the applicant's self-report of current levels of depression and anxiety fell within the normal range and the applicant's current level of stress fell within the mild range. However, Mr Baker said that the applicant's self-report was "somewhat at variance" with Mr Baker's direct clinical observation of the applicant, which may suggest the applicant is seeking to downplay his current levels of depression, anxiety and stress.
The results of the PAI indicated the applicant was considerably defensive, in that he sought to deny common shortcomings about which most people will be honest, and appeared somewhat reluctant to recognise faults or problems within himself. Mr Baker stated that despite the applicant's level of defensiveness, the applicant described problems of greater intensity than is typical of defensive respondents in the areas of thoughts of death and suicide, poor interpersonal rapport, physical symptomology of depression, tension and apprehension. Mr Baker states the results of the PAI do not indicate the presence of clinical psychopathology, but that "some denial or defensiveness is likely to be responsible for the generally trouble-free picture that he (the applicant) is reporting".
Mr Baker stated the applicant reported experiencing periodic thoughts of self-harm, and his clinical history includes episodes of major depression, with high levels of suicidal ideation. Mr Baker states that such issues will need to be therapeutically addressed in order to mitigate the potential risk of self-harm. Mr Baker states the applicant has a below average motivation and interest in treatment which suggests he is satisfied with himself as he is, and that he is not experiencing marked distress. Mr Baker noted that, as a result, the applicant does not see the need for changes in his behaviour.
Although the applicant has not been charged or convicted of any criminal offence, in his assessment of the applicant Mr Baker utilised the Static-2002R assessment, which is a measure of relative forensic risk for sexual offence recidivism. It considers the nature and category of the sexual offence, the offender's prior offending history, the offender's relationship to the victim, the offender's age and the typology of victim. A score of -2 to 2 indicates low risk, 3 to 4 indicates low-moderate risk, 5 to 6 indicates moderate risk, 7 to 8 indicates moderate-high risk, and 9+ indicates high risk. Using this tool, Mr Baker assessed the applicant as being within the lowest category of risk, with his risk of sexually reoffending being 1.6%.
Mr Baker opines that the applicant's mental health conditions are amenable to treatment, and that "considerable focus in treatment will need to be around ensuring that (the applicant) is able to articulate, understand and resist any impulses relating to his suicidal ideation". Mr Baker opines that with treatment the applicant's psychological issues should remit within a reasonable time frame.
In cross-examination, Mr Baker was questioned about the applicant's scores on the DAAS and PAI assessments. Mr Baker maintained his view that the applicant was forthright during assessment and does not necessarily accept that the applicant was deliberately misleading him during testing, but suggested that that the key question was whether the applicant was being honest with himself. Mr Baker also acknowledged that the applicant had quite strong depressive traits, and noted that the applicant frequently became emotional during assessment.
In cross-examination, Mr Baker conceded that the applicant does have current psychopathology in that he has a diagnosis of Major Depression and an Adjustment Disorder, and has at various times been suicidal. However, Mr Baker opined that the applicant is in remission because of treatment, and further stated that the applicant has not seen the need for referral to a psychiatrist (and as a result is not being regularly reviewed by a psychiatrist).
Mr Baker agreed that the applicant's results from the Static-2002R assessment cannot be used to suggest the applicant is an extremely low risk (i.e. -2), and Mr Baker further agreed that that this form of testing (the Static 2002R) measures only the risk of sexual re-offending. It does not measure the risk of the reoccurrence of other types of conduct, for example, misconduct and the violation of teacher/student boundaries.
Counsel for the respondent submitted that Mr Baker's evidence is not that of an independent expert as he is the applicant's current treating psychologist. Counsel for the respondent also submitted that it is not accurate for Mr Baker to claim the applicant has no current psychopathology, whereas in fact the applicant suffers from Major Depressive Disorder, a permanent mental health condition. Counsel for the respondent submitted that the psychological evidence is deficient in that it does not comprehensively address all of the applicant's psychological, social and personal history, including the period where the applicant was in simultaneous relationships with both the victim and his former wife, and further suggested that it was given on the basis of an acceptance of the applicant's denial of the misconduct matters, and therefore does not provide an independent and accurate assessment of the applicant's risk.
With due respect to Mr Baker, the Tribunal considered that his evidence did not address or further assist the Tribunal in assessing the applicant's overall risk. In particular, whilst the psychological testing provided an assessment of risk of sexual re-offending, it failed to address the applicant's insight and understanding of the teacher-student relationship, the risk of violating the boundaries of that relationship, and the significance of child protection generally. Accordingly and in the circumstances, the Tribunal determined that the evidence of Mr Baker should be accorded only limited weight.

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

The applicant disputes the EPAC findings and denies that he was ever in a sexual or inappropriate relationship with the victim when she was a student. The applicant provided a written response to the EPAC allegations which was received on 28 October 2013. However, the primary source record of the applicant's response was not made available by DEC and therefore was not produced to the respondent or the Tribunal. As a result, the only evidence of the applicant's formal response to the EPAC allegations is that provided by way of summary by the investigators in the EPAC Investigation Report dated 10 February 2014.
Although the applicant denied that he had a sexual relationship with the victim, the EPAC Investigation Report discloses that the applicant did make a number of relevant admissions in his response to the allegations, namely:

That he did form a close friendship with the victim;
That he regularly spoke to the victim about many things;
That he drove the victim home from school on occasions;
That he took the victim for driving lessons in his car after school;
That while parked in his car with the victim, he engaged in personal discussions with her;
That he had picked the victim up in his car, driven her to and from a train station and to his home on one occasion;
That he did speak to the victim on her home telephone on several occasions;
That he did give the victim a card and gift for her 17th birthday;
That he did write a couple of letters to the victim when their friendship had resulted in them talking about many things;
That he did tell the victim to destroy the letters and card he had given her, and that he realised he had gone into dangerous territory; and
That it was possible that the victim and others may have visited his room on a volleyball trip to Canberra.

In addition to the response he provided to the EPAC investigators, the applicant made a statutory declaration dated 23 May 2014 for the purposes of the risk assessment conducted by the respondent. In his statutory declaration the applicant states he spent a lot of time together with the victim over a two year period due to the victim's extensive involvement in the sport which he coached. He described their relationship as "friendly". He stated that they often talked about many things while driving to and from sporting events, but he does not remember talking to the victim about his personal life. The applicant stated there was no touching, kissing or actions of a sexual nature, and he stated that he did not give the victim any letters, cards or gifts, except for a card for her 17th birthday. He stated the victim's father expressed concern about the card, but that "there seemed nothing more of that card or event".
The applicant's oral evidence and submissions at the Tribunal hearing were quite extensive. He maintained his denial of any sexual or inappropriate relationship with the victim. He said that he gave only one card to the victim and probably gave a gift, and that he probably did tell the victim to get rid of the card "…..if it's causing a problem". He also said he did "put a couple of things in writing" to the victim but they were about volleyball or training only, and questioned how the author of letter discovered by the victim's mother could be proved.
In his evidence the applicant admitted to taking the victim for driving lessons (and was aware the victim's father would not or could not take the victim himself) but said the victim "hounded" him to do so, and that he "bowed to her pressure.
The applicant admitted to pulling over in his car on one occasion only, but said that this was due to an issue with the car's gears. The applicant admitted driving the victim to his house on one occasion, but states that it was in the context of transportation to a sporting event. He denied that the victim spent the night of her Year 10 formal in his home, and that a bath and intercourse took place, claiming that it could not have occurred as recollected by the victim as his young son was still using a cot at that time and there was no single bed in the room.
The applicant denied that he engaged in inappropriate conduct with the victim during sporting tournaments outside of NSW, but stated that there was every chance she and others did visit his room.
The applicant denied being smitten or infatuated with the victim, and in response to the events surrounding the discovery of the card, said that he was upset about damaging his friendship with the victim.
The applicant denied that he continued to have contact with the victim after he left the school. However, he admits he tutored the victim (and another student) because the victim asked him to, and he had only agreed to on condition that other people were around.
The applicant said that in 2005-2006 he was going through a difficult personal situation and had attempted to commit suicide. Around this time, he received email contact from the victim, and they subsequently met up and developed a relationship, culminating with him moving in with the victim in 2010. Their relationship ended in 2011, about six months after they moved in together.
In relation to the victim's statement to EPAC investigators that she was "sick to her stomach with the relationship occurring", the applicant stated that if that were the case, he queries why the victim pursued and followed him 14 years later.
The applicant submits that there is a lack of evidence corroborating the victim's account, and notes that the teaching colleagues interviewed by EPAC during its investigation did not observe any inappropriate physical contact between him and the victim. He submits that the allegations were not properly tested and have never gone further than EPAC.
The applicant told the Tribunal that no one can understand the impact the allegations and findings have had on him and his professional career. He said his teaching colleagues were (instructed) to have no contact with him and his farewell from the school, and he has been cut off from every person with whom he had worked for 18 years.
The applicant is in a relationship with a current partner and works as a nursery hand. Prior to the EPAC investigation, the applicant had been a teacher since 1982, and had held the positions of deputy principal and principal. At the time the allegations became known to EPAC, he had been the principal of a high school since 2007 and the deputy principal since 2001. He had also been the Relieving School Education Director for the district. The applicant had been awarded for his work in education, including a Minister's Award for Excellence in 2001 and a Rotary Fellowship for contribution to Education and Community.
The applicant had also been involved in tutoring and sports coaching for many years, and had been part of various school committees and community organisations. The applicant is a member of a Christian church, whose pastor provided a reference in support of the applicant's application, and was present to support the applicant during the Tribunal hearing.
The applicant provided a number of references in support of his application. They include references completed specifically for the purposes of the respondent's risk assessment process, as well as past employment and character references dating from 1988. They include references from persons with whom the applicant has worked in education for many years, including principals and deputy principals. The authors of the references completed for the risk assessment process indicate they have not observed any inappropriate conduct of the applicant towards students, but rather, write positively about the applicant's contribution to his students and the school community.
The applicant also included in his application cards and letters from some former students thanking him for his contribution and support, as well as a reference the victim's father had provided for him in 1992.
The applicant submits that he is not, and never has been, a risk to the safety of children. The applicant said that as a teacher of 30 years, he is very familiar with boundaries, and when the victim's father was very upset, he worked hard to change his entire set of practices. He also said that in his teaching career he had worked with students at risk, and had made many notifications to the Department. The applicant said that he seeks a working with children check clearance to clear his name and to enable him to continue to work with children and young people.

Any other matters that the Children's Guardian considers necessary

The respondent contends that the decision the subject of review is the correct and preferred decision and should be affirmed. The respondent submits, inter alia, that because the Tribunal is protective and because the paramount principle is the safety, welfare and well-being of children and, and in particular, protecting them from child abuse, the assessment should err on the side of caution if there is a deficiency in information or if there is any doubt created by the available material: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [119].
Counsel for the respondent submitted that the applicant has not been truthful and has failed to discharge his duty to be fully frank with the Tribunal. Counsel pointed to a number of inconsistencies in the applicant's responses to the EPAC allegations, his statutory declaration, and his oral evidence before the Tribunal.
Furthermore, the respondent suggests the applicant's reliance on a reference by the victim's father in circumstances in which the victim's father was ignorant of the nature of the relationship between the applicant and his daughter further highlights the applicant's lack of insight and understanding about what is appropriate.
Counsel for the respondent submits the applicant shows no insight into the crossing of boundaries in relation to a student / teacher relationship, and the effect of his conduct on the victim. Taken together with the comprehensive nature of the EPAC investigation, the applicant's lack of truthfulness and his lack of insight which is multi-faceted, counsel for the respondent submits that the applicant is a danger in that there is a risk he will become infatuated with another student, and as such Tribunal could not be satisfied that the applicant does not pose a risk to the safety of children.

Conclusions and orders

In this matter, the role of the Tribunal is to review the decision of the Children's Guardian to refuse the applicant a working with children check clearance, and to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable law.
The applicable law includes the Child Protection (Working with Children) Act, which provides the safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration. Importantly, the jurisdiction of the Tribunal is protective and not punitive in nature. In this matter, the Tribunal is tasked with determining whether, on the balance of probabilities, the applicant poses a risk to the safety of children.
The Tribunal recognises that there is no evidence that the applicant has engaged in any further sexual misconduct, grooming behaviour, or inappropriate conduct with a student other than the matters that formed part of the EPAC investigation and the Director's findings. Furthermore, the Tribunal takes into account that these matters have not led to any criminal charges being laid against the applicant. However, in this regard the Tribunal understands that this is due to the reluctance of the victim to give evidence for the purposes of a criminal prosecution. There is an absence of any evidence to support the applicant's suggestion that the victim and his former wife conspired either separately or together to bring the allegations to light. Furthermore, the Tribunal finds that the EPAC investigation was comprehensive, involving interviews with a significant number of relevant persons, and made specific reference to the victim (and others) as presenting as honest and credible witnesses.
In any event, the Tribunal is not tasked with determining the guilt or otherwise of the applicant in relation to allegations and findings of sexual misconduct. It can be satisfied on the basis that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child, or that the existence of a risk has not been disproven. In this regard, the Tribunal, on all of the evidence before it, is so satisfied.
The Tribunal takes into account that the applicant's conduct occurred 23 years ago, and therefore is not recent conduct. He has no criminal history and there is no evidence he has previously been the subject of disciplinary proceedings in relation to his employment. The applicant has been a teacher for 30 years and has undertaken a number of voluntary and community roles. He has been held in high regard for his teaching abilities and his dedication to his students and school communities. He has been assessed by his treating psychologist as posing a low risk of sexual re-offending.
It is evident the applicant feels very much aggrieved by the allegations and the processes employed by EPAC, and perceives that a lack of fairness and justice has been afforded to him. He considers that he has been persecuted and unsupported by his former employer. The applicant exhibits considerable defensiveness, and this was apparent in his self-report to his psychologist, the results of psychological testing, his statutory declaration, and his evidence before the Tribunal. The applicant was emotional at times while giving evidence and spoke of his history of mental ill-ease. He admitted trying to commit suicide in the past, and he has a recorded history of suicidal ideation. Whilst the applicant's mental illness is apparently being treated, in light of its history and severity, it is of concern that the applicant does not see the need for current psychiatric intervention.
In addition, the applicant's focus on his perceived unjust treatment and the impact on him of the Director's findings tends to demonstrate the applicant's lack of insight into the seriousness of the concerns held by those tasked with investigating, prosecuting and implementing measures in the context of child protection.
Furthermore, in neither his oral or written evidence does the applicant make reference to the psychological or emotional harm that the victim may have experienced as a result of the relationship that existed between her and the applicant while she was a student. Rather, the applicant displays a notable lack of insight into the inappropriateness of their relationship and his conduct during the relevant period. Throughout the Tribunal hearing, the applicant referred repeatedly to his relationship with the victim as a "friendship", comparing it at one point to his friendship with his pastor, who is an adult male. Significantly, he did not once specifically refer to his relationship with the victim as being that of a teacher and student, and one in which he was in a position of trust and authority.
The reality was that as a teacher, the applicant had a duty to take reasonable care for the safety and welfare of the victim, who was a student in his charge. That duty included the duty to take all reasonable actions to protect the victim from the risks of harm, including psychological harm. The duty encompassed not only risks from known hazards but from foreseeable risk situations against which preventative measures could have been taken.
That the applicant, as a teacher of 30 years, including a number of years as a school principal, is unable to see that his actions, including the actions to which he admits, were clear boundary violations of the student/teacher relationship, is troubling. Despite his recent (and limited) assertion of regret, the applicant demonstrates that he saw, and continues to see, nothing inappropriate about his actions with respect to the victim. This includes taking the victim for driving lessons covertly without the knowledge of the victim's parents. The applicant further demonstrates a lack of insight when he insists he only did so after being "hounded" by the victim and after "bowing to pressure" applied by the victim, and in the context of the victim's father being unwilling or unable to do so himself. In this regard, the applicant fails to recognise that as a teacher, this was inappropriate in a number of important respects; not only in his engagement in such actions in the circumstances, but also by the very fact that he allowed himself to be placed in situations whereby such actions were able to occur. Indeed, the applicant's tendency to place the blame on the victim (who at the relevant times was a child), his consistent claim that he merely succumbed to her persistent requests, and his lack of recognition of a clear power imbalance in their relationship, is in itself troubling.
The Tribunal accepts the submission of the respondent that the applicant lacks insight. Indeed, the applicant when directly addressing this submission, said that these matters have had a significant impact on him. However, his response further demonstrates his inability to view the situation outside of the impact on himself.
The applicant has sought to minimise his conduct and actions, and his oral evidence was in part inconsistent with his responses to the EPAC investigation and his statutory declaration. For example, in his response to the EPAC allegations, the applicant initially admitted that he and the victim talked about "many things". In his statutory declaration, however, he denied discussing personal matters. His oral evidence was also contradictory; at one point making admissions only to talking to the victim about sport and training matters, yet at another time admitting that he and the victim talked about their likes and dislikes, the teachers the victim liked or disliked, where he would like to go and what the victim could do in the future. The applicant further admitted that they probably talked about his new job (following his departure from the school), which was in contrast to his earlier evidence denying contact with the victim after he left the school.
Similarly, the applicant in his response to the EPAC allegations admitted to sending the victim letters and cards. However, in his statutory declaration he indicated he sent the victim no letters, whilst in his oral evidence, he said he put a couple of things in writing, but they were only about the victim's sports or training.
The applicant was also inconsistent in his view of the significance of the birthday card he gave the victim for her 17th birthday. In his evidence, he sought to downplay its significance, referring to it merely as a "fun card between friends". Similarly, in his statutory declaration, he stated that after the card's discovery, there "seemed nothing more of that card or event". Yet, the applicant also said in oral evidence that the card is "burnt" in his memory, changed entirely his practices, and together with the driving lessons, was one of things "he would undo". Not only do the applicant's responses on this topic highlight his minimisation of his conduct and the inconsistency of his evidence, but also reinforce his inability to recognise the inappropriateness of his actions and statements. Moreover, the applicant's assertions that the card was merely 'fun' and relatively insignificant is not credible in light of the level of concern the card generated generally, warranting intervention by the victim's parents and the school, and prompting the applicant to give instruction to the victim for its destruction.
The applicant was also inconsistent in his evidence in respect of other allegations. In his response to EPAC, the applicant admitted to pulling over by the side of the road on a couple of occasions during driving lessons with the victim during which discussions occurred about a "few things", including, it appeared, the difficulties the victim was having with her father. However, in his oral evidence the applicant admitted to pulling over on one occasion only, and it was related to an issue with the car's gears, and not personal matters.
The Tribunal finds that the applicant was not a frank and forthcoming witness. Such a finding is of particular significance in the context of section 27(4) of the Act, which imposes a positive obligation on the applicant to fully disclose to the Tribunal any matters relevant to the application. It is clear that the applicant wishes to portray himself in a favourable light, which in itself is not unusual. However, the matters reflecting adversely on the applicant's credit and his tendency to minimise his conduct together persuade the Tribunal that it could not have confidence that the applicant would have disclosed anything adverse or anything else that he was obliged to disclose under the Act unless it would support his application.
Furthermore, the Tribunal notes the applicant continues to deny that any misconduct occurred. Whilst the applicant has participated in psychological assessment and review which is to be commended, it appears to have been instigated by his general practitioner in the context of the applicant's underlying mental health concerns, rather than as a result of the findings in relation to his conduct. There is therefore little, if any, evidence upon which it could be said that the applicant has developed any insight into his offending conduct, its effect on children, and the measures he needs to adopt to ensure it does not re-occur.
Taking into account all of the evidence before it, the Tribunal could not be satisfied that the applicant, if working with children, would be capable of behaving appropriately if the same or similar circumstances were to occur. The Tribunal could also not be satisfied that the applicant would be able to properly understand and recognise the boundaries of relationships with children, and respond and act appropriately in situations where there are signs and indicators of an inappropriate relationship between an adult and child, grooming behaviour, or circumstances which would warrant the intervention of the relevant authorities. Furthermore, the Tribunal could not be satisfied that if working with children, the applicant would be able to dispassionately and objectively manage situations and take appropriate protective measures in circumstances where a child is at risk.
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. The evidence presented to the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children. The safety, welfare and wellbeing of children and in particular protecting them from child abuse is the paramount consideration.
Taking into account all of the evidence, both oral and documentary, the submissions of the parties, the objects and principles of the relevant Acts, and having regard to the factors set out in section 30(1) of the Act, the Tribunal finds on the balance of probabilities that the correct and preferable decision is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance.

Order: The decision of the Children's Guardian dated 8 January 2015 to refuse to grant the applicant a Working with Children Check clearance is affirmed. 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: 18 August 2015

Role of the Tribunal

Section 27 of the Act makes provision for administrative review, by the Tribunal, of a number of decisions of the respondent, including a decision to refuse a working with children check clearance. That section relevantly provides: 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (2) … (3) … (4) An applicant must fully disclose to the Tribunal any matters relevant to the application. (5), (6) (Repealed) (7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.
Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Children's Guardian. Administrative Decisions Review Act 1997, s 63.
That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing. YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].
The jurisdiction of the Tribunal under section 27 of the Act is 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]
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act. Civil and Administrative Tribunal Act 2013, s 36.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67.
Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balencio (1987) 8 NSWLR 436.
At [29], in BKE, Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an applicant had sexually abused a child in circumstances where the applicant had not been convicted of doing so.
At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal's fact finding task as follows: "33 … [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."
In determining this application, the Tribunal has power to make the following orders: 63 Determination of administrative review by Tribunal (1) … (2) … (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.
Subsection 30 (1) sets out the factors the Tribunal must consider in determining a review application: 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) …
The meaning of the word 'risk' was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "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.""
These remarks have been accepted to equally apply to the word "risk" as it appears in the 2012 Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE), at [26].
In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area."

Burden of proof

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].
Although the applicant has no legal burden he does have a practical or forensic onus: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53, and the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act.
An application pursuant to section 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.
The applicant has a duty to disclose all relevant material pursuant to section 27(4) of the Act.

BRF v Children's Guardian

At a glance

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Decision date

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Judgment (7 paragraphs)

Parties

Cases Cited (13)