BRT v Children's Guardian

NCAT Administrative and Equal Opportunity|2015-09-23

oms (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving and Land Management Pty Ltd (No 7) [2014] NSWSC 1188 Roberts v Balancio (1987) 8 NSWLR 436 SS v Department of Human Services (NSW) [2010] NSWDC 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 T v H and Ors [1985] NSWSC, Unreported 19/12/1985 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: BRT (Applicant) Children's Guardian (Respondent) Representation: Counsel: L Andelman (Applicant) G Mahony (Respondent)

Introduction

The applicant, known as "BRT" in these proceedings, on 25 February 2015 filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 ("the Act") concerning a decision of the Children's Guardian, made on 15 January 2015 to refuse him a Working with Children check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.
The Act came into force on 15 June 2013.
The applicant applied for a working with children check clearance on 23 August 2013.
The applicant and his wife had a niece of the applicant living in their home as her kinship foster carers since Easter 2012. The applicant wishes to continue to provide foster care for that niece. In order to do so, a working with children check clearance is required.
On 19 June 2014 the Children's Guardian forwarded a notice of interim bar in accordance with section 17 of the Act.
In a letter from the Children's Guardian to the applicant dated 30 October 2014 the applicant was informed that the Children's Guardian decided that he poses a risk to children. In other words, the applicant was refused a Working with Children Clearance preventing him from working in "child-related work": section 6(2)(j) and section 8 of the Act; clause 13 of the Child Protection (Working with Children) Regulation 2013.
The applicant was charged with an offence specified in schedule 2 of the Act but was acquitted of those charges in 2002. That is accepted by the applicant in written submissions on his behalf (Exhibit A5) as sufficient for a trigger to conduct a risk assessment pursuant to section 14 of the Act. The offence was "Aggravated indecent assault on a victim under the age of 16 years" (2 counts).
The applicant was represented by Counsel, Ms L Andelman and the respondent was represented by Counsel Ms G Mahony. The application for review was heard by the Tribunal on 23 September 2015.
An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any children, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without the leave of the Tribunal.
The Tribunal has been assisted by the oral and written submissions of the parties.
The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

The evidence relied upon in the hearing

The applicant relied upon the following documentary material: 1. Affidavit of the applicant BRT filed 3 August 2015- Exhibit A1; 2. Affidavit of the applicant's wife filed 23 September 2015-Exhibit A 2; 3. Affidavit of the solicitor for the applicant filed 19 August 2015, annexing a report by Dr Lennings dated 10 August 2015-Exhibit A3; 4. Application of the applicant filed 25 February 2015 annexing the letters from the Children's Guardian regarding the interim bar in the final decision-Exhibit A4; 5. Submissions on behalf of the applicant filed 23 September 2015-Exhibit A5; 6. Psychological Report by Mr Grainger dated 11 May 2015-Exhibit A6.
The respondent relied upon the following documentary material: 1. Documents filed pursuant to section 58 Administrative Decisions Review Act 1997 (NSW) on 7 April 2015 - Exhibit R1; 2. Statement of Reasons file pursuant to directions of Principal Member Higgins - Exhibit R2; 3. Further Documents filed by the respondent on 25 August 2015 - Exhibit R3; 4. Additional Documents filed 4 September 2015 - Exhibit R4; 5. Outline of Submissions on Behalf of the Children's Guardian dated 9 September 2015 - Exhibit R5.
It was agreed that the documents in Exhibit R1 are evidence of complaint about what was said to have occurred rather than evidence of the truth of what occurred. The applicant disputes the accuracy of certain allegations. The applicant elaborated in written submissions at [22] that an intelligence report provided by the Australian Crime Commission and a police report relating to an incident on an XPT train in 2007 fall into the category of evidence which the applicant is not able to rebut by cross examination of the complainants or otherwise sufficiently deal with in accordance with the dictates of natural justice: Exhibit A5. The applicant also disputes the record of interview of the alleged victim in relation to the 2002 allegations of aggravated indecent assault and submits that it would be unsafe to rely upon that primarily because the charges were dismissed. It was also submitted that the documents and allegations could be put to the applicant and his evidence considered by the Tribunal, but any weight given to the material would be highly prejudicial.
The applicant gave oral evidence and was cross-examined on 23 September 2015. Dr Lennings was also cross-examined on that date.
The Tribunal has previously identified the relevant legal principles to be applied in an application under section 27 of the Act: BPA v Children's Guardian [2015] NSWCATAD 36, at [13]-[33], [39]-[42]; BKV v Children's Guardian [2015] NSWCATAD 65, at [14]-[43], [122]-[127]; BHY v Children's Guardian [2015] NSWCATAD 91, at [21]-[56]; BPX v Children's Guardian [2015] NSWCATAD 114, at [17]-[53]. The discussion which follows is thus repetitive of those matters, but is set out in order to provide the parties with a reasoned and legislative basis for the decision.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons.
The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997."
The paragraph from the decision in BJB v NSW Office of the Children's Guardian (No 2) is a considered statement of the relevant principles to be applied in a review under section 27 of the Act, based upon High Court authority, and those principles shall be applied in this decision. Further binding support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]: "Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct."
The effect of the Act and the 'practical onus' which falls on a party notwithstanding the principles referred to in the previous two paragraphs of these reasons is as the Act states in section 27(4): "An applicant must fully disclose to the Tribunal any matters relevant to the application."
The practical or forensic onus but not the legal onus is thus carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened." (Citations omitted)
The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal, as set out earlier in these reasons, and are not currently controversial. The applicable provisions are again referred to now and necessarily involve repetition of previous statements in those earlier decisions.
The Act was amended with effect from 28 September 2015. The amendments do not purport to affect the specific provisions applicable to this application since it was made prior to the date the amendments take effect: see Schedule 3, clauses [9]-[22] of the Act. The amendments do not purport to affect any proceeding in relation to the rights, privileges, obligations or liabilities accrued prior to the hearing of this appeal for the benefit of the parties to this review except as provided in Schedule 3 to the Act: sections 5(2) and 30(1)(b),(c) and (e) of the Interpretation Act 1987; see Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving and Land Management Pty Ltd (No 7) [2014] NSWSC 1188, at [199]-[200], per Price J (as he then was); ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18, at [11], [12], and [27] per French CJ, Crennan, Kiefel and Keane JJ, and at [49]-[52] per Gageler J.
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows: "Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units."
The objects of the Act are set out in section 3 which provides: "Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
Pursuant to section 14 of the Act there is a requirement to conduct an assessment of the applicant. The section provides as follows: "14 Assessment requirements A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person."
The matter referred to under Schedule 1 of the Act which triggered a risk assessment by the Children's Guardian is the matter referred to in clause 1(6) which is as follows: "(6) A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children."
The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130].
The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children's Guardian [2015] NSWSC 523.
The Tribunal is guided by the decision in the Supreme Court BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order: "However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
The same approach to risk issues is relevant to this application, bearing in mind that there is no presumption of risk in this application as there would be in an application for an enabling order under section 28 of the Act: cf. section 28(7) of the Act.
The Tribunal has previously determined that it is not permissible for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children's Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children's Guardian at [33]. It is useful to set out the reasoning behind the Tribunal's determination in this decision.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.
The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.
The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.
In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.
The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following: "All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."
In the following paragraph the Minister stated: "While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."
As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and with approval in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.
In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states: "Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."
If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.
The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 provide that persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. The applicant is not treated as a disqualified person, but is subject to risk assessment under the current Act due to the provisions of schedule 1. It is the Tribunal's assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight are not determinative of the current assessment of risk on the whole of the information before the Tribunal.
The applicant was granted a children's check clearance from the Commission for Children and Young People on 23 April 2013. The applicant was approved as a kinship carer by the Department of Family and Community Services on 13 June 2013. The Act came into force on 15 June 2013. The applicant submits that the change to the legislation, not any change in the risk factors pertaining to the applicant, resulted in the subsequent refusal of a clearance under the Act: Exhibit A5, [6].

The Issue

As previously referred to, the primary issue before the Tribunal in this application is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.
There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33] .
The Tribunal itself may also be a source of evidence: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481. It is not necessary in this matter to utilise these functions and powers of the Tribunal.

Considerations and the Evidence

The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than is section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language.
Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections.
Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.
Section 15 of the Act provides as follows: 15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. (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 total criminal record 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, (j) any information given in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (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.
Section 30 of the Act provides as follows: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's 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.
The evidence will be considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings within the required considerations under the Act reflecting the subsections of section 30(1) of the Act.

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

The applicant was accused of two counts of aggravated indecent assault of a female victim under the age of 16 years contrary to section 61M (1) of the Crimes Act 1900 (NSW). It was alleged that on 23 July 2002 the applicant who was then aged 28 years, indecently assaulted the victim then aged 14, years by touching her right breast and then later placing both hands on her breasts and playing with her nipples on the outside of her clothing. The applicant was employed at the time as a teacher's aide through the Department of Education and Communities and the victim was a student at the school where he worked. The charges were dismissed in the Local Court on 22 August 2003. An apprehended violence order was granted for a period of 2 years with standard conditions protecting the student from the applicant: see Exhibit R1 at pages 17, 19-21, 260-263, 265-272.
The applicant concedes that the charges he faced concerning indecent assault were very serious, but submits that the offence was not proven to the criminal standard.
The Magistrate in his reasons for decision said that he had "concerns in relation to the reliability of the [alleged victim's] evidence." Exhibit R1 page 262. On the same page the Magistrate said he had "some concerns in relation to the reliability of the evidence of the [applicant]."
The Magistrate then said that he had "further evidence in relation to the attempted suicide by the alleged victim on the following Saturday... and evidence of her distress. It does therefore appear to me that something probably did happen involving the [applicant] and [the alleged victim] but I am not satisfied on her evidence to the required standard that the [applicant] touched her on the breast in the...room or in the garden shed or just outside the garden shed [where she had alleged the touching occurred]." Exhibit R1 page 263. When read as a whole, the reasons of the Magistrate show that he did not accept that the location where the alleged touching occurred was accurately given in evidence by the alleged victim, but that he was satisfied, to a lower standard than the criminal standard of beyond reasonable doubt, that some indecent touching occurred.
An Apprehended Violence Order was made on the same day by the Magistrate for a period of 2 years: Exhibit R1 page 267. This order was not stated to have been made by consent. There was no appeal in relation to this order. The order expired on 22 August 2005. The civil standard of proof, on the balance of probabilities, applies to the making of those orders. The Magistrate therefore found on the civil onus that there was a sufficient evidentiary basis for making those orders. The Magistrate was satisfied on the balance of probabilities that it was necessary to make orders for the protection of the alleged victim. The same civil onus applies to these proceedings in the Tribunal.
The allegations in the complaint for the Apprehended Violence Order are that the applicant approached the student on more than 3 occasions since May 2002 requesting sexual favours: Exhibit R1 page 269. It is recorded in the summons that the student refused the applicant's advances which included requests for "oral and penis/vaginal sex". The allegation continues that on 23 July 2002 the indecent touching of her breasts by the applicant occurred on the school grounds during that day. The behaviour which is referred to in the summons for the apprehended violence order is sexually explicit conversation and overtly sexual behaviours with a schoolchild. The behaviour encourages inappropriate physical contact even when it is not overtly sexual, and refers to sexual topics in conversation.
The alleged offences are serious. The dismissal of those offences is deemed by the legislature to be sufficiently serious to trigger a risk assessment under the Act. The fact that these were child related and sexual allegations makes them serious.
The determination of the matter by dismissal utilising the criminal standard does not mean that the matter could not be established on the civil standard of proof. The rules of evidence do not apply to these proceedings and therefore the circumstances surrounding the making of the Apprehended Violence Orders are able to be utilised by the Tribunal in the assessment of risk and arriving at the correct and preferable decision.

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

The alleged offences ("those matters") occurred on 23 July 2002. That is, over 13 years ago.
The applicant's criminal history is contained in Exhibit R1, pages 249-250.
Since the time of the alleged offences and the making of the Apprehended Violence Orders against the applicant in August 2003 the applicant was charged with common assault and assault occasioning actual bodily harm arising out of events which occurred on or about Wednesday, 26 April 2006. The applicant was convicted of common assault on 10 August 2006 and sentenced to a Bond pursuant to section 9 Crimes (Administration of Sentences) Act 1999 (NSW) with supervision by the New South Wales Probation and Parole Service for a period of 12 months and Court costs of $67.
The applicant was convicted on 10 August 2006 of assault occasioning actual bodily harm and sentenced to imprisonment for a period of 12 months with a non-parole period of 4 months, suspended upon him entering into a Bond pursuant to section 12 Crimes (Administration of Sentences) Act supervised by the Probation and Parole Service for a period of 12 months.
The conviction for common assault on 10 August 2006 resulted from an incident involving the woman who is now the applicant's wife. The conviction for assault occasioning actual bodily harm resulted from an incident involving a man who the applicant accused of infidelity with his then girlfriend, now his wife. The applicant was arrested by the police when he turned up to Court on 22 June 2006 in relation to an AVO application on behalf of his then girlfriend, now his wife. Upon his arrest the applicant refused to participate in an interview after receiving legal advice. The police record that the applicant said: "I do not remember doing it because I was sick, under the influence of prescribed drugs." Exhibit R1 page 278.
The applicant says that he was in a drug induced psychosis that stemmed from a medicine which was wrongly prescribed by a doctor at the regional hospital. Nevertheless, the applicant pleaded guilty to the offences.
The police have produced material contained in Exhibit R1 pages 173-175 which records the incidents which led to the charges and convictions. In those records it is recorded that in March 2006 the applicant's wife left the family home with their 4 children and went to the Women's Refuge in a regional centre. The applicant then moved to a different regional town located a significant distance away from where his wife was located with their children.
On 26 April 2006 the applicant's wife was sleeping in her bedroom at her sister's house when the applicant came into the room and kept her awake by poking her. The applicant accused her of sleeping with other men including the husband of her cousin. The applicant by lying on top of her prevented her from moving and initially did not allow her from leaving the bed to go to the toilet. The applicant then permitted her to go to the toilet but said he would go with her so she could not jump out of the window and run away. The applicant stood outside the toilet near the window. The applicant kept arguing with his wife while she was trying to sleep. The applicant followed her into her daughter's bedroom where she got into the bed to sleep. The applicant lay on the bed behind his wife and began to dig his elbows into her back. He whispered into her ear: "If you do not get up I'm going to drag you by the head of the hair out of this room."(sic) The applicant grabbed her hair and pulled it trying to pull her off the bed. The daughter was woken up because her mother had put her arms around her. The daughter told the applicant to leave her mother alone. The applicant let his wife go and punched her at least 3 times in the lower back. The applicant walked out of the room and for the rest of the night walked in and out of the house yelling and abusing his wife. Their daughter was present. The following morning the applicant was asked to leave but he refused. The applicant lay down in his wife's vehicle in order to prevent her leaving. Eventually the applicant got out of the vehicle and she drove off.
On Friday 28 April 2006 the applicant rang his wife requesting that she bring him some clothes to her sister's house where he was staying: which she did. The applicant was observed by her at that time to be calm and acted as though nothing had happened.
Also on 28 April 2006 the applicant went to visit the husband of his wife's cousin and proceeded to assault him. As soon as the door was opened the applicant kicked him in the stomach causing him to fall over onto the ground. The applicant then repeatedly kicked him in the head and back. The victim lay on his stomach on the ground to protect his head as he was being kicked. The applicant knelt down over the victim and grabbed his hair. The applicant pulled his head back and asked him to apologise. The victim heard the applicant say something about an accusation that the victim was sleeping with the applicant's wife and touching the applicant's children. The applicant smashed the victim's head into the ground and the victim passed out. When the victim woke up he heard the applicant threaten him further as he was walking away. The victim sustained bruising to his right eye and mouth area and had grazes on his elbows, and suffered severe back and neck pain.
Earlier in the same year, on 7 February 2006 into the early hours of 8 February 2006, the applicant stated to police that he had been taking a large amount of drugs: Exhibit R3 page 5. It is recorded by the police that the drug referred to is cannabis also known as "pot", marijuana, and by its active compound "THC". At about 5am the applicant reportedly became irrational towards his partner and ran naked up and down the street. The applicant made a number of threats to kill himself, his partner and the children. The police spoke with the applicant who told them that he had been smoking "pot" (marijuana) since he was 12 years old. The applicant also said that he was on medication but that he had not been taking it. It was reported that he thought if he just used "pot" his problems would be solved. The police wanted to take him to hospital, but he refused. The police record that the applicant showed an unbelievable amount of strength in resisting the 2 police officers who had to use capsicum spray and handcuffs in order to attempt to subdue him. Eventually the police officers took him in their police truck to a hospital for assessment. The police note that the applicant spoke irrationally and also stated that he was sorry.
The applicant was admitted to hospital on 8 February 2006 with the reason for referral as "marked behavioural disinhibition [secondary] to substance intoxication-THC": Exhibit R4 page 2. The applicant was admitted because he "had been running naked following ingestion large amount of THC related to back pain and cessation of opiate analgesic": ibid. The diagnosis was a drug induced psychosis. The applicant told the hospital that he had started eating marijuana. The applicant was discharged into the care of his mother.
The applicant says in his affidavit that he had a bad reaction to Endone (an opiate pain relief): Exhibit A1 [66]. This assertion is not supported by the medical evidence. The drug induced psychosis was caused by marijuana intoxication according to the medical records: Exhibit R4 page 2. The applicant has referred to this matter in his Statutory Declaration and elsewhere in the material tendered in support of this review.
On 14 June 2013 the applicant and his wife were notified that they had been authorised as relative kinship carers for the applicant's niece by the Department of Family and Community Services: Exhibit R3 page 66. Previously, the applicant's mother had cared for the niece. It is recorded elsewhere in the documents produced by the Department of Family and Community Services that the niece's mother has issues with (presumably illicit) drug use and unsafe behaviour. The child is under the parental responsibility of the Minister. A letter was sent from the Commission for Children and Young People on 23 April 2013 to the Department of Family and Community Services which stated that there were "some risks" which had been found in relation to the applicant's relevant records: Exhibit R3 page 90. The letter further states: "This means that you will need to consider your capacity for supervising and supporting this applicant and managing risk in your organisation and within the job itself when you make your employment decision. Actions to manage risks to children in your workplace include: -increasing supervision and monitoring for this role and documenting required behaviours; -increasing the education and training of supervisors and co-workers; -reviewing and documenting the way you support vulnerable children; and -reviewing and documenting the way you support high risk activities involving emotional or physical closeness; -reviewing the venue where this work is undertaken so it is more visible to other adults."
It is anticipated by that letter that there may be some supervision and monitoring of the applicant, and other mitigating factors, in order to ameliorate the risks identified.
It is also notified in that letter that a new regime for working with children check clearances will be commencing. That is a reference to the provisions under the current legislation in the Act applicable to this review.
In an interview conducted on 26 November 2012 for the purposes of the carers' assessment report for the Department of Family and Community Services, it is reported that the parties married earlier in 2012 and that the applicant's wife would not marry him before she did "because of his drug use and domestic violence. When asked how they now deal with conflict both [the applicant] and [his wife] stated they do argue but [the applicant] is much milder now that he no longer takes drugs." Exhibit R3 page 101. When this was put to the applicant's wife she attempted to say that this was misreported, saying instead that she was young and she was not ready. The applicant's wife, it was submitted by the respondent, in this hearing minimised the level of domestic violence and drug use and the impact it had upon her and the children. The applicant in his oral evidence also minimised the extent of domestic violence present in the relationship. The Tribunal finds that the report by the Department of Family and Community Services in 2012, whose conclusions are relied upon by the applicant to say that there is no risk, is more likely to be an accurate reflection of what was said by the applicant's wife than the present recollection given in oral evidence.
The applicant also informed the assessor for the Department of Family and Community Services that he did not get along with his stepfather who used to hit him until he was aged 14, at which age the applicant then hit his stepfather: Exhibit R3 page 102.
There has been no adverse report received in relation to the applicant's care of his niece.

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

The applicant was 28 years of age at the time of the alleged offences.

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

The alleged victim was 14 years of age at the time of the alleged conduct. She was vulnerable due to her age.
The alleged victim was a vulnerable female child exposed to the applicant who was in a position of authority as a teacher's aide. The applicant exerted power over the victim and if he engaged in the conduct which was alleged he abused the trust reposed in him by the community.

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

The alleged victim was approximately 14 years younger than the applicant at the time of the alleged offence.

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

The applicant does not dispute that he knew that the alleged victim was a child. The applicant would have reasonably known that she was a child because she was a school student and he was employed at school.

The person's present age

The applicant is currently 42 years old. The applicant is the father of 6 children. Of those children four reside with the applicant and his wife in their home and range in age from 16 to 2 years old.

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

The applicant's criminal history is referred to previously in these reasons. The applicant concedes that the 2002 and 2006 offences are serious and appears to suggest the 2006 offences were related to drug induced or due to mental health issues that spanned over the course of that year. The applicant submits that the offences are historic.
The conduct of the applicant since the allegations which triggered the assessment is not beyond reproach. The applicant was convicted of physical assaults and further AVO restrictions were put in place to protect his wife and another adult male person.

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

The applicant relies upon the assessments by Dr Lennings and the relative carer assessment by the child welfare authority, the Department of Family and Community Services: Exhibit A3, Annexure B; Exhibit R3 page 66. The applicant submits that he does not pose a real and appreciable risk to children.
The risk assessment conducted by the Children's Guardian did not have the benefit of an expert assessment.
The impact on the alleged victim of the 2002 allegations was significant and apparently resulted in a suicide attempt due to her distress. Whether that distress was as a result of the allegations, or as a result of involvement in the Court process, or a combination of these factors, the impact was significantly adverse to her psychological health and well-being. The impact may then be characterised as abusive to the child.
The applicant relies upon a report from Mr Grainger, psychologist dated 11 May 2015: Exhibit A6. The Children's Guardian did not have the benefit of this report for assessment of risk. The applicant told Mr Grainger that the AVO taken out by his wife and an AVO taken out by "his friend" were due to actions while using cannabis and Oxycodone. It can be seen from the police involvement and the medical records that this is not an accurate statement. The psychotic episode arising from cannabis intoxication preceded the assaults. The applicant had ceased using Oxycodone prior to the assaults according to the police records. The applicant told Mr Grainger that he then ceased using Oxycodone and he has also ceased using cannabis. This also is not an entirely accurate statement. The psychological testing undertaken by Mr Grainger indicated that the applicant is an individual who may have experienced adverse consequences as a result of drug use. Although the applicant's score on the "Aggression" scale for the Personality Assessment Inventory psychological test was elevated and suggestive of "an individual who may be seen as impatient, irritable, and quick tempered", the psychologist did not consider it was significant. Otherwise, the report of Mr Grainger repeats much of the same material that the applicant puts forward to the Tribunal.
The report of Dr Lennings is dated 10 August 2015. The applicant saw him on 3 August 2015. Dr Lennings is a highly respected and well qualified psychologist. The applicant told Dr Lennings that the common assault and assault occasioning actual bodily harm offences with which the applicant was charged and convicted arose as a result of side-effects to medication on which he had been placed: Exhibit A3, Annexure B [7]. Dr Lennings accepts that statement at face value. The court which convicted him obviously did not accept that explanation (if it was proffered) because he was convicted. The applicant told Dr Lennings that when he was younger "he thinks he got on pretty well with" his stepdad, and reported "observing domestic violence in the family including physical fights": Exhibit A3, Annexure B [25]. Those statements are accepted by Dr Lennings at face value. The applicant had informed the assessor for the Department of Family and Community Services that he did not get along with his stepfather who used to hit him until he was aged 14, at which age the applicant then hit his stepfather: Exhibit R3 page 102.
The applicant reported that there had "been some friction with his wife's family who see him quite negatively": Exhibit A3, Annexure B [32].
Dr Lennings hypothesizes that the convictions for assault against the applicant's wife and the other victim which occurred in April 2006, arose possibly from a brief psychotic state as a result of medication which he later ceased: Exhibit A3, Annexure B [35]. This reflects what Dr Lennings was told by the applicant who has no medical training. The applicant was observed by his wife at the time of one assault on 28 April 2006 to be calm and acted as though nothing had previously happened with her two days earlier. The applicant told the police in early February 2006 that he was on medication but that he had not been taking it. The drug induced psychosis in February 2006 was caused by marijuana intoxication according to the medical records: Exhibit R4 page 2. There is no objective evidence provided to the Tribunal which supports the hypothesis adopted by Dr Lennings. The medical evidence and the police reports contradict that hypothesis.
The applicant informed Dr Lennings that he drinks alcohol and he drinks 750 ml bottles of beer. The oral evidence given by the applicant was that he drank three of those bottles of beer in a month. The applicant said that in the past he could drink alcohol and get aggressive: Exhibit A3, Annexure B [37], [38].
Dr Lennings advocates caution with respect to the practice of risk assessment. Dr Lennings stated in Exhibit A3, Annexure B at [49]: "Although useful in guiding decisions about risk in the management thereof, the practice of risk assessment is subject to several important limitations. Specifically, given the base rate of sexual offender recidivism is low; the prediction of such an uncommon behaviour is difficult. Secondly, actuarial risk assessments provide information that pertains to the risk posed by groups of individuals that were studied in the creation of the instruments and it is always unclear how any one individual will perform relative to the group that were studied. In the civil risk area there are no validated actuarial sexual violence risk instruments. Further, risk assessments are by their nature limited to the data available and are bound by time. In civil assessments the quality of information is typically quite poor, with the balance of probabilities as opposed to the beyond reasonable doubt rule creating uncertainty. Risk assessments can change as new information becomes available, and all risk assessments have an appreciable level of error built into them. Although research typically highlights the superiority of structured risk assessment over unstructured clinical judgment, 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 datum (for a more detailed discussions see Mullen & Ogloff, 2009 and for risk assessment dilemmas in the civil and arena Chu & Ogloff, 2012). (References omitted)
The fact that the applicant has been found not guilty of sexual offences, but has been found guilty of violence offences, plus the imposition of AVO restrictions based upon the civil onus is a matrix which creates some difficulty for formal psychological risk assessment. Since assessment of sexual offending risk using actuarial measures requires a minimum criterion of a conviction for a sexual offence, or an assumption that such an offence took place, the applicability of such an assessment is tenuous where it is assumed the lack of a conviction means there was no sexual offending behaviour.
Dr Lennings utilised the Risk for Sexual Violence Protocol (RSVP) (Hart et al, 2003) to arrive at a conclusion that the applicant's overall risk of either a sexual offence or any other antisocial behaviour remains low: Exhibit A3, Annexure B [53], [58]. Again the risk factors are dependent upon findings as to the existence of sexual violence, coercion, attitudes that support those behaviours, problems with stress or coping, problems with self-awareness, personality disorder, mental health issues, substance abuse issues, problems with intimate and non-intimate relationships, nonsexual criminality, problems with planning, and problems with treatment or supervision. Some of those risk factors exist for the applicant and others are dependent upon disputed findings concerning past behaviour.
Dr Lennings observes that there was a separation between the applicant and his wife for about 12 months around 2006 during which the applicant formed a new relationship for about 3 months: Exhibit A3, Annexure B [22]. The applicant married his wife in 2012 and the applicant's wife said she would not marry him before she did "because of his drug use and domestic violence. When asked how they now deal with conflict both [the applicant] and [his wife] stated they do argue but [the applicant] is much milder now that he no longer takes drugs." Exhibit R3 page 101.
Dr Lennings did not have the benefit of an interview with the wife of the applicant, nor did he interview any of the wife's family to ascertain why it was that he does not get on with them and they view him negatively.
There has been no reported repetition of the conduct which led to the charges of indecent assault.
The cautionary note sounded by Dr Lennings in his report and previously quoted, identifies that risk assessments are only as good as the information on which they are based, can change depending on new information or a conclusion based upon existing information, and there is an appreciable level of error built into them. To that extent, the use of these tools is flawed by circular logic. The assessment tools do not validate whether the events actually occurred as alleged, a task which the Tribunal must perform based on the evidence before the Tribunal weighed in the scales using the balance of probabilities formulation.
The likelihood of any repetition of the conduct is assessed by Dr Lennings as low or "no appreciable risk of harm": Exhibit A3 Annexure B [53], [58]. The Tribunal has to form its own opinion about the likelihood or risk of recurrence of the alleged offence independent of any expert opinion. An indicator of future behaviour is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves.
The likelihood of a repetition of the conduct which led to the charges of indecent assault is more remote because the applicant is not employed in the same position and does not have access to children of that age at this time. If the applicant is granted a working with children check clearance he may work with children of any age and in unsupervised environments. In those circumstances, the likelihood of a repetition of the conduct which led to the charges of indecent assault is rendered more probable, assuming that the conduct of indecent assault actually occurred.

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

The applicant has provided some information including two references, and a statutory declaration dated 14 February 2014. The applicant also gave oral evidence and was cross-examined.
The reference provided by one employer was unable to be verified by the Children's Guardian. That reference identified that the applicant had been known to the referee over a 3 year period in a volunteers program. The referee states that he is confident the applicant is "more than capable of working with children to highest level": Exhibit R1 page 182-184.
The second referee was able to be verified by the Children's Guardian. The applicant had assisted as a bus driver and in other roles as a volunteer and in a paid capacity. The referee had supervised the applicant for a period of one year. The referee makes no mention of the allegations from 2002 or the convictions of the applicant. The referee says he has known the applicant for approximately 20 years through the local community: Exhibit R1 page 186.
The Tribunal is of the view that significant weight could be placed on referees who are aware of the circumstances of the offences and allegations made about the applicant. Where the referees are not familiar with and do not refer, in particular, to the latest incident(s) of alleged aggressive conduct, the references should be given little weight.

Any other matters that the Children's Guardian considers necessary

The Children's Guardian made submissions addressing those other matters which the Children's Guardian considers necessary.
The respondent refers to the investigation by the Department of Education and Training, Conduct Directorate and the material provided to the Children's Guardian which was collected during that assessment: Exhibit R1 pages 62-77. The investigation related to the allegations which led to the criminal proceedings. As stated previously in these reasons those proceedings were dismissed. The investigation by the applicant's employer at the time of the allegations was unable to sustain the 9 allegations which were separately recorded in their material. Some of those 9 allegations were not matters with which the applicant was charged. All of the allegations were concerning inappropriate sexualised behaviour and comments of a sexual nature. The student who was the alleged victim refused to speak with the investigators because of her distress. The decision was finally made that the applicant's name was not to be placed on the "Not to Be Employed" (NTBE) list by the Department in its records. However, during the course of the investigation it was discovered that there were comments in the police brief that there were at least 3 other complainants whose allegations did not go to trial, because of their desire for anonymity: Exhibit R1 page 73. No further information was provided about any other complainants. There is no further information about any of those complaints. It is therefore not possible to place any weight upon those alleged complaints.
The findings by the applicant's former employer were that there was insufficient evidence to support the allegations, however, it was considered that his employment constituted an "unacceptable risk" which could be ameliorated and "suitably managed by the usual supervisory processes available to principals": Exhibit R1 pages 72, 75. Since the applicant was only ever eligible for casual employment, and had not sought employment since 2002, the matter was dealt with by a referral to the Ombudsman, and a report to the Commission for Children and Young People as a category one report requiring risk assessment by the Commission if the applicant applies for future child related employment: Exhibit R1 page 71.
It was agreed that in this review application the New South Wales Police intelligence reports, an alleged incident on an XPT train in 1997 and information from the Australian Crime Commission where the informants have not been identified would not be relied upon. That information was utilised by the Children's Guardian in formulating the risk assessment which led to the refusal of the working with children check clearance. The Tribunal has disregarded that hearsay material and has given that no weight in this determination.

Consideration and determination

The applicant has been convicted of common assault and assault occasioning actual bodily harm in the context of a dispute with his now wife and, at least in relation to the assault upon his wife, was conducted in the presence of his daughter.
The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms. The behaviour exhibited a significant lack of self control and incapacity to implement any avoidance strategies. It would appear that the behaviour of the applicant is susceptible to repetition in the absence of steps taken to address any of the causative factors.
The behaviour, if repeated, would do significant harm to the victims. The paramount principle under the Act includes protection of children from abuse and 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.
The applicant has matured with age and is committed to his family which are factors in his favour. The applicant has engaged in some prosocial behaviours and is engaged with his community. These are also factors in his favour.
There is a lack of evidence of mitigating factors. There is little evidence of genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk and without more than an expression of such sentiment, is an inadequate response to an existing behaviour.
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.

Conclusion

There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
In Director General of Department of Community Services; Re "Sophie" [2008] NSWCA 250, per Sackville AJA (in the plurality) at par [67] and [68], the Court of Appeal stated: "[67] The reasoning process I have outlined involves an error of law. The primary Judge, although stating the principles governing the burden of proof correctly did not apply them correctly. It was appropriate to take into account the gravity of the allegation of sexual misconduct made against the father, as required by s 140(2) of the Evidence Act. It was not appropriate to find that the Director-General had failed to satisfy the burden of proof on the balance of probabilities simply because his Honour could not exclude a hypothesis that, although consistent with innocence, was highly improbable. To approach the fact-finding task in that way was to apply a standard of proof higher than the balance of probabilities, even taking into account the gravity of the allegation made against the father. [68] As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly. In the end, however, as Ipp JA observed in Dolman v Palmer at [47], the enquiry is simply whether the allegation has been proved on the balance of probabilities."(Citations omitted).
In that case, Re "Sophie", it was alleged that the father had sexually abused his daughter because she contracted gonorrhoea. The most probable explanation for transmission of that infection was through sexual contact. The alternative hypotheses, however, could not be totally excluded.
Although the consequences of making a finding in this matter that the allegations made by the victim concerning the aggravated indecent assault are established on the balance probabilities are serious and will affect the applicant adversely, a finding should be made if the evidence satisfies the standard of proof.
The Magistrate in August 2003 was satisfied, to a lower standard than the criminal standard of beyond reasonable doubt that some indecent touching occurred. An Apprehended Violence Order was made by the Magistrate for a period of 2 years: Exhibit R1 page 267. This order was not stated to have been made by consent. There was no appeal in relation to this order. The order expired on 22 August 2005. The civil standard of proof, on the balance of probabilities, applies to the making of those orders. The Magistrate therefore found on the civil onus that there was a sufficient evidentiary basis for making those orders. The Magistrate was satisfied on the balance of probabilities that it was necessary to make orders for the protection of the alleged victim. The same civil onus applies to these proceedings in the Tribunal.
The allegations in the complaint for the Apprehended Violence Order are that the applicant approached the student on more than 3 occasions since May 2002 requesting sexual favours: Exhibit R1 page 269. It is recorded in the summons that the student refused the applicant's advances which included requests for "oral and penis/vaginal sex". The allegation continues that on 23 July 2002 the indecent touching of her breasts by the applicant occurred on the school grounds during that day. The behaviour which is referred to in the summons for the apprehended violence order is sexually explicit conversation and overtly sexual behaviours with a schoolchild. The behaviour encourages inappropriate physical contact even when it is not overtly sexual, and refers to sexual topics in conversation.
On the balance of probabilities, and taking into account the gravity of the allegations of misconduct, the Tribunal finds that the evidence before the Tribunal is sufficient to make a finding that the applicant has engaged in aggravated indecent assault with the victim when she was a vulnerable child. The Tribunal is comfortably satisfied that the evidence establishes on the civil standard that the applicant indecently assaulted the victim.
The behaviour of the applicant involved indecently assaulting a student while he was in a position of authority. The applicant has not acknowledged his wrongdoing and shows little insight into the effect of his behaviour upon the victim's life. Instead, the applicant has concentrated upon the effect upon his own life.
It the Tribunal is in error in concluding that the indecent assaults occurred on the balance of probabilities, it is concluded on the balance of probabilities that the circumstances surrounding the alleged incidents and the subsequent course of conduct by the applicant means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.
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. 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.
The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance.
The order of the Tribunal therefore is: 1. The decision of the Children's Guardian dated 15 January 2015 to refuse to grant the applicant a Working with Children Check clearance is affirmed. 2. The application for review of the decision of the Children's Guardian filed 25 February 2015 is otherwise refused and dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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: 24 December 2015

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Judgment (21 paragraphs)

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Legislation Cited (9)

Cases Cited (33)