CDE v Children's Guardian

Role of the Tribunal

1. 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 (5), (6) (Repealed) (7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.
2. 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.
3. 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].
4. 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]
5. 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.
6. 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.
7. 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.
8. At [29], in BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (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.
9. 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."

Administrative Decisions Review Act 1997

1. Pursuant to section 63 of the Administrative Decisions Review Act 1997, the Tribunal has power to make the following orders: 1. to affirm the decision of the Respondent, or 2. to vary the decision, or 3. to set aside the decision and make a decision in substitution for the decision it set aside, or 4. to set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal.
2. At any stage of proceedings, the Tribunal may remit the decision to the Respondent for reconsideration. Administrative Decisions Review Act 1997, s 65.

Child Protection (Working with Children) Act 2012

1. Subsection 30 (1) of the Act sets out the factors the Tribunal must consider in determining a review application under section 27 of the Act. (These replicate the factors set out in s15(4) to which the Respondent may have regard when conducting its risk assessment) : 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.""
3. 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 at [26].
4. 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

1. 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].
2. 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. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.
3. Where a matter requires proof it should be proved to the civil standard, on the balance of probabilities: Minister for Immigration and Ethnic Affairs v Pochi(1980) 4 ALD 139; BJB No. 2 at [32].
4. However, the ultimate issue is not whether a particular allegation has been proved or not proved. This is subservient and ancillary to the ultimate issue: whether in all the circumstances the applicant poses a real and appreciable risk to the safety of children.
5. 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.
6. The Applicant has a duty to disclose all relevant material pursuant to section 27(4) of the Act.

Evidence before the Tribunal

1. The Respondent tendered into evidence it's correspondence with the applicant, the Respondent's risk assessment report, and various documents provided by government departments and agencies, including the NSW Police, the courts, and the Department of Youth and Community Services (now known as Family and Community Services).
2. The Applicant relied on his application, his statement dated 5 August 2015 and two references.
3. The Applicant did not give oral evidence at the hearing. He was represented by a Solicitor who provided written and oral submissions to the Tribunal.
4. The evidence is now considered under each of the subheadings of sections 15(4) and 30(1) of the Act.

The seriousness of any matters that caused a refusal of a clearance to be given to CDE

1. The matters that caused a refusal of a clearance to be given to CDE were criminal charges arising out of conduct alleged to have been committed by the applicant against A, his step daughter, (Complainant 1), B, his biological daughter (Complainant 2) and C, his other step daughter (Complainant 3). The conduct alleged is said to have occurred between 25 November 1977 and July 1980. It is relevant to note that complete copies of the prosecution brief of evidence and transcripts of the relevant criminal proceedings were not in evidence before the Tribunal. Counsel for the Respondent said copies of the Director of Public Prosecution's (DPP) file in relation to the applicant had been sought. In evidence was an e-mail dated 3 April 2014 from the DPP to the requesting officer at the Office of the Children's Guardian which confirmed that the DPP does not hold any records in relation to the applicant. Similarly, an e-mail dated 27 June 2014 from NSW Department of Police and Justice to the Office of the Children's Guardian states that despite a thorough search of both current and archived records the police brief of evidence and documentation of the Attorney-General's decision not to proceed with charges in relation to indecent assault charges against the applicant, could not be located.
2. This meant the Tribunal did not have the benefit of the statements to Police which were presumably made by the three complainants or the transcript of any evidence they gave in the criminal proceedings. Further, the Tribunal did not have in evidence before it any record of interview or statements made by the applicant to the Police or the transcript of any evidence he gave in the criminal proceedings.
3. Details of the criminal charges against the applicant are contained in a report of a Legal Officer from the DPP and in the Certificate of Acquittal dated 28 October 2014 relating to the applicant's acquittal on 30 July 1981 following a Supreme Court trial.

Complainant 1

1. The criminal charges regarding Complainant 1 concerned the following alleged instances of offending: i. Indecent assault upon Complainant 1 between 25 November 1977 and 25 November 1978
2. Complainant 1 alleged that shortly after the applicant married Complainant 1's mother, the applicant "would enter the bathroom whilst the complainant was showering. He would rub his hands over her body particularly on her breasts and vagina. When she got out of the shower he would dry her and continue to fondle her. He would then insert his fingers into her vagina, as well as his tongue." ii. Indecent assault upon Complainant 1 between 1 January 1979 and 31 December 1979
3. No particulars of this count were in evidence before the Tribunal. iii. Indecent assault upon Complainant 1 between 1 January 1978 and 2 March 1978
4. No particulars of this count were in evidence before the Tribunal. iv. Rape, indecent assault and assault on Complainant 1 about July 1980
5. Complainant 1 alleged that she had been left at home by her mother with the applicant and her sister and step-sister.
6. Complainant 1 alleges that the applicant called out to her when she was in the kitchen and asked her to come to one of the bedrooms of the house. She went to the bedroom and knocked on the door and the accused asked her to come in and close the door which she did.
7. At the time she was wearing a nightie and dressing gown with no undergarments on. She sat on the bed with the accused seated next to her on a chair. The accused said to her words to the effect of "I think it is my duty as a father to teach you how to perform properly. You have now been going with AB [Complainant 1's boyfriend] for five months." Complainant 1 said "No. What about Mum and AB?" The applicant said "It is my duty as a father."
8. Complainant 1 began to cry. They began to argue about the applicant's suggestion. The applicant, who had hold of Complainant 1's arm let go causing complainant one to fall back onto the bed. The applicant stood up, took his belt off and undressed from the waist down. He then took his shirt off. Complainant 1 alleged that the applicant grabbed her by the arm and pulled her up off the bed before he took her dressing gown off her.
9. It was further alleged that the applicant pushed Complainant 1 down into a kneeling position and said to her "Play with me. I will teach you how to have oral sex". He then pushed her head towards his penis, which was erect, forcing it into her mouth. This continued for a few minutes.
10. Complainant 1 alleged she struggled to get away by attempting to stand up but was pushed back on the bed by the applicant. The applicant forced Complainant 1's knees to her stomach and he had sexual intercourse with her. Throughout this episode Complainant 1 is said to have continued to cry.
11. After the intercourse was complete, the applicant told complainant one to have a shower and said "I'm sorry I didn't last too long, it will be better next time." Complainant 1 showered and a short time later her mother returned home.
12. About two months later Complainant 1 informed the applicant that she had missed her period. The applicant made arrangements for her to see a doctor which she did. The pregnancy test came back negative.
13. At the end of August 1980, Complainant 1, in a telephone conversation with her boyfriend, informed him of the above incident.
14. On 14 September 1980, the applicant was charged with indecent assault of a female under 16 and common assault. It was alleged by NSW Police that the applicant unlawfully assaulted Complainant 1 between 1 January 1979 and 31 December 1979.
15. On 1 October 1980 the applicant was committed to stand trial at the Sydney District Court in respect of six charges of indecent assault, one charge of assault and one charge of rape.

Complainant 2 i. Indecent assault upon Complainant 2 between 25 November 1977 and 25 November 1978

1. There are three separate incidents described within this alleged assault: 1. After November 1977, the applicant was in the bath with Complainant 2 and was "accused of washing her all over" including in her "private parts." 2. Following the incident described at paragraph (a) one Sunday morning Complainant 2 woke her parents up in their bed and her parents tickled her. Complainant 2 reported that during this the applicant "may have touched me …in the bottom private part." 3. On a further date during this period Complainant 2 alleged that the applicant touched her on the vagina when she was dressing herself in the lounge room in front of the fire.

Complainant 3 i. Indecent assault upon Complainant 3 between 25 November 1977 and 25 November 1978

1. There are two separate incidents described within this alleged assault: 1. Between November 1977 and November 1978 on one occasion Complainant 3 was bathing and the applicant began to wash Complainant 3 "all over" including the "vagina and the boobs." It was reported it was "just a quick wash." 2. About two months later, with her step-sister, Complainant 3 woke her parents up in their bed and the parents tickled her and during this the applicant "touched the complainant on the boobs."
2. The allegations involving Complainant 2 and 3 were not pursued. The report of a Legal Officer of the DPP which was in evidence, which was undated, noted that "I have no doubt that each of the complainants are truthfull (sic), however legally there is little evidence to support the findings of bills in the terms outlined. There is no evidence of complaint or corroboration in any of the counts. As such I feel that the trial judge would be justified in not leaving the matters for determination of the jury. I thus recommend that bills not be found against the accused."
3. On 18 September 1981, the applicant was informed by letter that the Attorney General had decided not to prosecute the four charges of indecent assault relating to Complainant 2 and 3.
4. On 30 July 1981 following a jury trial in the Supreme Court, the applicant was found not guilty on two counts of assault with an act of indecency and one count of rape, which related to the allegations involving Complainant 1.
5. The matters that caused the refusal of the working with children check clearance are very clearly serious. They involved a serious breach of trust and the repeated nature of the conduct elevates its seriousness.

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

1. The alleged matters occurred between 36 and 39 years ago.
2. Since then the applicant has had no known criminal offences and there is no evidence before the Tribunal of any conduct which could be considered 'adverse' to the applicant since the last alleged offence in 1980.
3. The evidence of the applicant contained in his unsworn statement of 5 August 2015, is that he and his wife at the time of the relevant events divorced sometime after his criminal trial and he remarried in 1984. He and his wife are still married. He says he has three children from this marriage, who are now adults. One of these children has Down Syndrome and lives at home with the applicant and his wife. The applicant states that he volunteered for a number of years with a respite centre and a disability service provider doing maintenance work. He said he requires the working with children check in order to do volunteer work at the disability service provider however he no longer volunteers at the respite centre as he ceased volunteer work there after his wife, who also used to work there, retired about a year ago.

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

1. The applicant was aged between 34 and 37 years old at the time the alleged offences have been said to occur.

The age of the victim at the time of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

1. Between 1977 and 1980 when the alleged matters are said to have occurred, Complainant 1 was between 13 and 16 years old, Complainant 2 was between 9 and 12 years old and Complainant 3 was between 8 and 11 years old.
2. The children were vulnerable in their relationship with the applicant because of his greater age, experience and maturity, and also because of his position and authority as their father and step-father.

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

1. The applicant was aged between 34 and 37 years old in 1977 to 1980. There was an age difference of between 21 and 26 years between the applicant and the three complainants.

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

1. The applicant was the father and step-father of the three complainants and by virtue of his relationship with them was aware they were children.

The person's present age

1. The applicant is now 73 years old.

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

1. The applicant has no criminal record. There is no evidence of any adverse conduct on the part of the applicant since the relevant events of nearly 36 years ago. The applicant has three children from his relationship with his current partner. His second child from his current relationship, who is an adult, has Down Syndrome. There are no records or other evidence before the Tribunal that the applicant's family from his current relationship is known to the Department of Family and Community Services.

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

1. The applicant did not provide any risk assessment report for the purpose of these proceedings. At the commencement of the hearing the Tribunal asked the applicant's Solicitor if consideration had been given to obtaining such a report or any report from an appropriately qualified health professional such as a Psychologist or Psychiatrist. His Solicitor told the Tribunal that the view that was taken was that this was not necessary as there was nothing that had happened apart from the trigger events of over 35 years ago which would be of concern to the Tribunal. As the applicant was acquitted on all charges his Solicitor said it was not proposed to call the applicant to give evidence before the Tribunal and that his acquittal "speaks for itself".
2. The Tribunal notes there are a number of alleged incidents which involve a potential pattern of conduct involving sexually based allegations relating to vulnerable victims with whom there was an established relationship of trust between the alleged victims and the applicant. Clearly, if such conduct was to occur in the future, the impact would be significant on a victim, either a child or adult.
3. The applicant is now 73 years of age. His child and step-children who were the victims of the alleged offences are now adults. There have been no reported incidences of inappropriate conduct or other offences since the last of the alleged incidents is said to have occurred in July 1980 which is now nearly 36 years ago. The Tribunal considers these factors may support that it is unlikely there will be a repetition of the alleged acts against children.

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

1. The applicant's position, as stated by his Solicitor, was that he did not intend to give evidence because he had been acquitted of the criminal charges which gave rise to the risk assessment by the Office of the Children's Guardian, he maintains his innocence and therefore he has no case to answer.
2. As the applicant declined to give evidence the Tribunal did not have the benefit of a direct account from the applicant of the various matters raised in the material tendered by the respondent. Further, the written evidence of the applicant tendered to the Tribunal was not tested in cross-examination as he did not give evidence before the Tribunal.
3. As a result, the Tribunal was limited in it's consideration of the matters asserted by the applicant in his unsworn statement in support of his application and through the submissions of his Solicitor.
4. The applicant, in his Solicitor's submission, says that the only basis upon which the respondent could rely upon to base a refusal of the clearance was the trigger event of which he was charged and acquitted. The applicant also acknowledges that he did not engage in communication with the respondent when first given the opportunity to do so but says he was under no obligation to do so and his "reaction to the invitation was reasonable and understandable." The applicant asserts that the allegations made by Complainant 1 were maliciously made as he had supported her mother's decision not to allow her to move out of home with her boyfriend at the time. There is no motive suggested by the applicant for the allegations of Complainant 2 and 3.
5. The applicant has provided two references in support of his application from the President and Manager respectively of two organisations at which the applicant has been a volunteer, in one case for thirteen years and in the other, two years officially, but on an unofficial basis for a number of years. The referees speak highly of the applicant's work with their organisations, one of which is a disability services provider. However the referees do not state they are aware of the criminal proceedings against the applicant and do not address matters relevant to the risk, if any, the applicant poses to children. These references are of significance primarily because they indicate the referees have no knowledge of any adverse conduct by the applicant since the relevant events.

Any other matters that the Children's Guardian considers necessary

1. The respondent contends that the likelihood of repetition is not known, pointing out that the applicant has not obtained any psychological evidence or a risk assessment and has not provided any material which shows how he relates to other children, including his grandchildren.
2. The respondent notes that the applicant, who is a veteran, has disclosed in his statement in support of his application that he was hospitalised in 1997 as a result of post-traumatic stress disorder (PTSD). Further, the applicant says that prior to this he "had problems that I did not know how to handle. My doctor advised me to see a Psychiatrist who advised me to go and see [a Veteran's Association]" The applicant does not disclose the nature of the problems that he had and has not provided a report from the Psychiatrist he went to see. During his hospitalisation for treatment for PTSD the applicant says he applied for and was granted a Total and Permanent Incapacity Pension (TPI) from Veteran's Affairs. The respondent says that there is no information from the applicant's treating doctors or other specialists involved in the applicant's care and that such information would have been of assistance in assessing the risk to children and how his mental health impacts, if at all, on how he interacts with children.
3. The applicant has not obtained any psychological or other expert reports. As set out earlier in these reasons his case is that he does not need to prove that there is no likelihood of repetition because there was nothing to repeat.
4. The respondent also says the applicant has not addressed the reports recorded in the Department of Youth and Community Affairs notes in that there was alleged inappropriate crossing of boundaries by the applicant, including taking baths with the children and inappropriate touching. It is not clear on the face of these brief notes whether some or all of the conduct referred to is the same conduct which formed the basis of the criminal prosecution of the applicant. The circumstances in which these notes were created, the dates on which they were created and the author/s of the reports and notes are not identified. However, the conduct alleged in each of these notes is of a similar nature. Through his Solicitor's oral submissions at the hearing there was a denial of any inappropriate conduct with his daughter and step-daughters. The applicant's Solicitor's submission on this issue was to the effect that there was nothing inappropriate about bathing with children per se, that it was not uncommon at the time and "everyone" did it however, the applicant would not do so now. This alleged conduct of bathing with his children and touching them while bathing with them raises the question of the applicant's attitude to sexualized behaviour and is of serious concern, particularly as he is proposing to work in a facility for where disabled, extremely vulnerable young people attend.
5. The respondent says that the applicant seeks to undermine the seriousness of the facts and undermines the trial. In his letter to the Children's Guardian dated 27 May 2015 the applicant states "When you stop laughing after reading the trial documents I would appreciate the issue of a children's check." It was apparent from his communications with the Children's Guardian that the applicant felt aggrieved by the allegations and the processes that arose from them. This indicates limited insight into the seriousness of the concerns held by those tasked with investigating, prosecuting and implementing measures in the context of child protection.

Conclusion

1. The behaviour and conduct which triggered this assessment are serious matters. 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 consideration under the Act is the "safety welfare and well-being of children and, in particular, protecting them from child abuse."
2. The applicant submits that the decision not to prosecute charges in relation to the allegations by Complainants 2 and 3 and his acquittal of the charges in relation to Complainant 1 are determinative of the issue about whether he sexually abused his daughter and step-daughters. However, the criminal proceedings and the Tribunal proceedings are materially different. In criminal proceedings, the jury is tasked with finding whether the elements of the criminal offences with which the applicant was charged were proved beyond reasonable doubt. In this case the jury was not so satisfied and returned verdicts of not guilty.
3. The evidence submitted at the hearing is insufficient to enable the Tribunal to make a positive finding that the conduct which formed the basis of the criminal prosecutions occurred. That is the Tribunal could not, on the available evidence, make a finding of fact on the balance of probabilities that the incidents between 1977 and 1980 occurred as alleged in the material relied upon by the Respondent. Therefore, whether those matters occurred, or did not occur, remains open. However the role of the Tribunal is not to determine whether the applicant is guilty or not guilty of the offences with which he has been charged. Rather, it 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 applicable law.
4. The Tribunal has taken into account that there is no evidence of any adverse conduct or allegations of adverse conduct by the applicant after his criminal trial in 1981. The last of the alleged conduct which lead to the refusal of the working with children clearance occurred nearly 36 years ago. These factors weigh in the applicant's favour.
5. However, on balance and taking into account the gravity of the allegations, the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety of children.
6. The reports of each of the Complainants recorded in the YACS file notes, indicate there was a possibility of inappropriate crossing of boundaries by the applicant, including taking baths with the complainants and touching them while bathing. The applicant's decision not to give sworn evidence before the Tribunal meant the applicant has not addressed these matters apart from through the submissions of his solicitor which were to deny any inappropriate conduct on the part of the applicant.
7. The applicant has provided no risk assessment report for the purposes of these proceedings. There are no reports in evidence from his treating doctors in relation to his treatment for PTSD. The absence of such evidence was raised with the applicant's solicitor during the hearing and it was the applicant's position that it was not intended to obtain this evidence as he maintained his innocence of the conduct alleged. The nature of the allegations against the applicant are most serious and include allegations of sexual assault and inappropriate sexualised behaviours. There is no information available to the Tribunal which would assist in determining the impact, if any, of the applicant's mental health on his interactions with children.
8. It is insufficient for the applicant to contend that some charges were not pursued and he was found not guilty in relation to the others and therefore does not pose a risk to children. Whilst there can be an absence of a positive finding in respect of various allegations, the nature of the allegations may be indicative of a pattern of behaviour.
9. The Tribunal accepts that there are similarities between the allegations made by the three complainants in that they involve the applicant bathing or showering with the complainants and touching them on the genitals and breasts. The evidence before the Tribunal indicates that a magistrate was satisfied at the committal proceedings involving the allegations by Complainant 1, that the charges should be sent to a jury.
10. In considering whether the applicant poses a real and appreciable risk to children, the Tribunal is mindful of the findings by Beech-Jones J in BKE v Office of the Children's Guardian & Anor (supra) that even where the Tribunal cannot be satisfied that an allegation of abuse has been made, it may 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.
11. In this matter the Tribunal was satisfied having regard to all of the material before the Tribunal, including the number, nature and similarity of the allegations, that the existence of real and appreciable risk has not been disproven.
12. If the applicant is granted a working with children check clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. The applicant wants to volunteer to work at a facility catering to the needs of disabled people including young persons who would be very vulnerable in the event that the applicant transgressed appropriate boundaries in his conduct towards them.
13. The evidence and material referred to in these reasons establishes that the applicant poses a real and appreciable risk to the safety of children.
14. The evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety and wellbeing of children.
15. For these reasons the Tribunal has decided that the correct and preferable decision is to affirm the decision dated 13 July 2015 to refuse to grant the applicant a working with children check clearance.

Orders Accordingly, the Orders of the Tribunal are as follows: The decision of the Children's Guardian dated 13 July 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: 01 June 2016