CGB v Children's Guardian

The WWC legislative scheme

1. The WWC Act came into force on 15 June 2013. The objects of the Act are set out in s 3 as follows: "3 Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
2. Section 4 of the Act provides that the "safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration" in the operation of the Act.
3. The word "children" is defined in s 5(1) to mean persons under the age of 18 years. Consequently, the word "child" has the same meaning.
4. The term "child abuse" is not defined in the WWC Act and should be given its ordinary meaning. In this regard, the Tribunal has referred to s 227 of the Children and Young Persons (Care and Protection) Act which creates an offence of "child abuse", which is in the following terms: "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."
5. Subsection 8(1) of the WWC Act prohibits a person from engaging in "child-related work", unless: 1. the person holds the relevant working with children check clearance; or 2. there is a current application, by the person, to the respondent for the relevant working with children check clearance (i.e. a clearance). This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.
6. Subsection 9(1) contains a similar prohibition on an employer from employing, or continuing to employ a person, in child related work where the employer knows, or has reasonable cause to believe, that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.
7. Sections 6 and 7 define what is meant by "child-related work." In this regard, the role of an authorised carer is listed as "child-related work" in s 6(3)(c) of the WWC Act.
8. A clearance is not granted for specific child-related work, as once it is granted it is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].
9. Section 18 prescribes how the respondent is to determine an application for a clearance. That section relevantly provides: "18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) … (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. (3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3".
10. The offences of which the applicant was charged are "disqualifying offences": see WWC Act, Sch 2, cl 1(1)(e). However, as he was not convicted or found guilty of these offences he is not a "disqualified person". However, by reason of the 1999 and 2001 charges laid against him, he was subject to an "assessment requirement": WWC Act, s 14. The respondent carried out that assessment pursuant to s 15 of the WWC Act and was satisfied that the applicant posed a risk to the safety of children. Being so satisfied, s 18(2) required the respondent to refuse his application for a clearance.
11. The Tribunal has accepted the word "risk", in the context of the WWC Act, should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949, at [42]. That meaning was in the following terms: "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."
12. A person who has his/her application for a clearance refused under s 18(2) of the WWC Act has a right to seek external review of that decision by the Tribunal under s 27(1) of the WWC Act. Subsection 27(4), provides that in review proceedings an applicant must fully disclose to the Tribunal any matters relevant to his/her application.
13. Section 30 of the WWC Act sets out the matters the Tribunal must consider in determining an application for external review. These matters are similar in terms to those matters the respondent is to consider when conducting a risk assessment under s 15.
14. As the applicant made his application for a clearance prior to the coming into force of the amending provisions of Sch 2 of the Child Protection Legislation Amendment Act 2015, s 30(1) as it applied prior to those amendments applies in this application. That section 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 … any matters that caused a refusal of a clearance …, (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 … 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 … 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."

History of proceedings before the Tribunal

1. The applicant lodged his application for review in early November 2015. His application was listed for a directions hearing on 16 November 2015. By consent, at the directions hearing, the Tribunal made orders in respect to a stay application the applicant had made, a non-publication order and a date for further directions. The non-publication order was in the following terms: "Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal."
2. The applicant's stay application was heard on 26 November 2015. The Tribunal, constituted by Senior Member J McAteer, refused the applicant's stay application.
3. On, 21 January 2016, at the second directions hearing, the applicant's substantive review application was set down for hearing, on 6 April 2016.
4. On 4 April 2016, the solicitor for the respondent wrote to the Tribunal requesting that the hearing date be vacated and another date be set. The applicant's solicitor did not oppose the request. By consent a new hearing date was set for Sydney, on 4 May 2016.
5. On 4 May 2016, on the application of the respondent, the Tribunal, constituted by Senior Member J Anderson and General Member Professor P J E Foreman, granted an adjournment of the hearing of the applicant's application to a date to be fixed by the Registry of the Division, in consultation with the parties. At the commencement of that hearing, counsel for the applicant raised a procedural issue about the weight that could be given to the recorded allegations of child A and child B, in the absence of them being available to be cross-examined. After obtaining instructions, counsel for the respondent made an application for an adjournment so that summonses could be issued requiring child A and child B to attend for cross-examination. Counsel for the applicant opposed the adjournment, but added that if an adjournment were to be granted a stay of the decision of the respondent should also be made so that the applicant could return to the family home. Counsel for the respondent opposed the stay, however, the Tribunal granted an adjournment and made the following stay order: "1. Pursuant to s 30(2) of the Child Protection (Working with Children) Act 2013, the decision of the Respondent is stayed during the period of the adjournment, on the following conditions: (a) The Applicant does not undertake any child-related employment; (b) The Applicant does not undertake any volunteer work where children are present or likely to be present; (c) The Applicant does not have sole overnight care of any children; (d) The Applicant complies with any directions of the Department of Family and Community Services with respect to the care of the child who is residing in the Applicant's home."
6. On 1 June 2016, the Registrar of the Division wrote to the parties to advise that the applicant's application had been listed for hearing at a Court House close to where the applicant resided, on 11 and 12 October 2016. After the applicant informed the Registrar that his expert witness was not available on these dates, the matter was set down for further directions on 16 June 2016. At this directions hearing, by consent, new hearing dates of 19 and 20 October 2016 were set down. These hearing dates were subsequently vacated and a new hearing date of 19 December 2016 was agreed upon. The adjournment was due to the unavailability of a Tribunal Member on the October dates.
7. We heard the applicant's application, at a Court House close to where the applicant resides, on 19 December 2016. At the conclusion of the hearing we reserved our decision and by consent made an order extending the stay order made on 4 May 2016 pending the determination of the applicant's application.

Evidence

1. At the hearing of this application, the applicant relied on the following material: 1. an affidavit sworn by him on 17 December 2016; 2. an affidavit sworn by AB, in early December 2016; and 3. a report of Dr Christopher J Lennings, Forensic Psychologist, dated 5 February 2016.
2. The respondent relied on three bundles of documents and a letter from the Office of the NSW Director of Public Prosecutions, dated 2 June 2016. Included in the bundles of documents were copies of the following: 1. the applicant's criminal history, the respondent's risk assessment, the applicant's response to the respondent in the course of her risk assessment and documents provided to the respondent in the course of inquiries made with the NSW Local Court, the NSW District Court and the Department of Family and Community Services. Included in these records are copies of the charges laid against the applicant in 1989, 1990, 1996, 1999 and 2001, statements prepared in regard to the charges concerning child A, the transcript of a police interview with the applicant in January 2000 concerning the allegations made by child A, and a transcript of the committal hearing in regard to the charges concerning child A; 2. the Police Facts Sheet in regard to the 2003 charge laid against the applicant, the applicant's Apprehended Violence Order (AVO) history, the transcript of the police interview with child A in June 1999, the Police Fact Sheet in regard to the charge laid against the applicant in January 2001 concerning child B, the transcript of the police interview with child B and the subsequent interview with AB in January 2001, and two statements of the older brother of child B who was 16 years of age at that time; and 3. material provided from the Joint Investigation Team following the allegations made by child B and recent risk assessments following the respondent's refusal of the applicant's clearance.
3. The respondent also tendered a copy of the transcript of the hearing before the Tribunal on 4 May 2016.
4. The applicant and AB gave oral evidence at the hearing and they were cross-examined by counsel for the respondent. We have dealt with their evidence below.
5. At the commencement of the hearing, the solicitor for the respondent again raised the issue as to the admissibility of the statements and records of interview of child A, child B and the older brother of child B. This issue was raised as the respondent had again failed to make these persons available for cross-examination. We accepted the material into evidence, on the basis they evidenced the allegations that were made and not as to the truth of their content: see Civil and Administrative Tribunal Act 2013, s 38(2), Children's Guardian v BRL [2016] NSWSC 1206 and BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 and BKE (supra).

Background

1. Before setting out our consideration of the matters we are required to take into account, it is convenient to briefly set out the undisputed background to the applicant's application.
2. The applicant is 62 years of age. He receives a Disability Support pension and also works casually as a labourer.
3. The applicant and AB have been in a relationship for about 26 years. They have four children together, born between January 1989 and October 1994.
4. AB is 56 years of age and has another nine children from previous relationships. AB's children have also lived with her and the applicant at one time or another. The applicant and AB have 23 grandchildren between them.
5. In February 1989, the applicant was charged with an offence of assault. The victim of the offence was AB. In March 1989, the applicant was convicted of the assault offence and was discharged upon him entering a recognizance to be of good behaviour for four years.
6. In November 1989, the applicant was again charged with an offence of having assaulted AB. The applicant was convicted of this offence in January 1990. He was fined $300 and again discharged upon him entering a recognizance to be of good behaviour for three years.
7. In December 1995, the applicant was charged with an offence of having assaulted the brother of AB. That charge was dismissed in February 1996.
8. In June 1999, the Joint Investigation Team (JIT) of the former Department of Community Services (now Family and Community Services) received a notification in regard to child A and child B, who resided with the applicant and AB. Child A and child B are sisters and the daughters of AB from a previous relationship and were aged 16 and 13 years of age at that time. The caller making the notification stated child A had fled the home a couple of weeks ago and had made a disclosure alleging the applicant had sexually assaulted her, in mid 1998. Child A had fled the home and was living with the parents of her then boyfriend.
9. During a subsequent interview with child A she made a further disclosure of having been sexually assaulted by the applicant during the previous month. Child A was 15 years of age at the time of the 1998 alleged offending.
10. When spoken to by JIT, child B did not make any disclosures of sexual abuse. AB told the JIT Officers that what child A had said was not true - she is recorded as having said she spoke to the applicant about the allegations and that he had denied them. The applicant and AB endeavoured to get child A to return home.
11. Later in June 1999, the applicant was charged with two offences of aggravated sexual assault contrary to s 61J of the Crimes Act 1990. The applicant has at all times denied the charges.
12. At the time of being charged, the Local Court made an Interim Apprehended Violence Order (AVO) against the applicant for the protection of child A. That AVO was in force for a period of two years.
13. In August 2000, after a short hearing in which child A gave oral evidence and was cross-examined by counsel for the applicant, the Local Court committed the applicant for trial, in the District Court, on each charge involving child A.
14. In early December 2000, child B's older brother, child OB, attended the local police station with child A and reported that six months ago he had seen the applicant have sex with child B. Child OB was 16 years of age at the time. He alleged the incident he saw occur in the laundry of their home. Subsequently, child B made a disclosure to police alleging that six month ago, the applicant had asked her to go into the laundry where he forced her to lay face down on a chair, pulled her pants down and moved his erect penis between her upper thighs. She alleged the applicant stopped when he saw her older brother, child OB, and said it had only happened once. At the time of the disclosure, child B was residing with child A, however she was subsequently placed into the care of her oldest sister, who was an adult at that time.
15. In January 2001, the applicant was charged with an offence of aggravated indecent assault of child B, contrary to s 61M of the Crimes Act. Child B was 14 years of age at the time of the alleged offence. The applicant has at all times denied the charge.
16. In April 2001, a Jury found the applicant not guilty of the offences of which he was charged in regard to child A.
17. In July 2001, the NSW Director of Public Prosecutions (DPP) withdrew the charge relating to child B. In the letter of 2 June 2016, the Office of the DPP said the matter did not proceed "due to the complainant not wanting to continue with the matter. Without the complainant's evidence there was no reasonable prospect of a conviction".
18. In April 2003, the applicant was charged with an offence of common assault. The victim of the offence is AB. The applicant pleaded guilty to the charge later that month. The Local Court convicted the applicant of the offence and he was discharged upon him entering a recognizance to be of good behaviour for 12 months. At the same time, an AVO was made against the applicant for 12 months and the protected person the subject of that order was AB.
19. In June 2012, child GA was born. Child GA is the son of the second eldest son of the applicant and AB.
20. In December 2013, the Children's Court of NSW made final orders, under s 79 of the Children and Young Persons (Care and Protection) Act 1998, that: 1. child GA is placed under the parental responsibility of his father and his paternal grandmother (AB) jointly until he reaches 18 years of age; and 2. AB is allocated the sole parental responsibility for the residence of child GA.
21. At the time of hearing this application, child GA's father was almost 27 years of age.
22. In August 2014, the applicant made his application to the respondent for a clearance. As we have already noted, the respondent refused that application in October 2015.

Applicable Legal Principles

1. As the applicant is not a "disqualified person" there is no statutory presumption that he poses a risk to the safety of children, unless he proves the contrary: see WWC Act, s 28(7). Hence the general principle of administrative review applies in that neither party bears a burden of proof in establishing that the decision was, or was not, "the correct and preferable" decision: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]-[40]; BSR v Office of the Children's Guardian [2015] NSWCADTAD 264 at [17] and BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]. However, as noted by the Administrative Appeals Tribunal of Australia in Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 at [18]: "… [when] either party to such an application [i.e. a review application] raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge."
2. It is also accepted that where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at p362: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [33]. That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 at [15] per Dean J; BSR (supra) at [18]; BJB (supra) at [32] and Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 at [23].
3. In BKE (supra) at [30], His Honour Justice Beech-Jones said, where there are allegations of sexual abuse by an applicant for a clearance, significant guidance as to the approach to be adopted when considering the allegation and risk can be derived from the High Court's decision in M v M [1988] HCA 68; (1988) 166 CLR 69. His Honour went on to say at [33]: "... [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."
4. Finally, the jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.

(a) Seriousness of the matters that caused a refusal of the applicant's application for a clearance

1. It is the sexual offences of which the applicant was charged in 1999 and 2000 that were the trigger events requiring the respondent to conduct a risk assessment. The alleged offending was very serious in that, it involved a child (i.e. the applicant's step daughters child A and child B) and carried a maximum penalty of 20 years imprisonment and seven years imprisonment respectively: see Crimes Act, s 61J and s 61M as they applied at the time of offending.
2. Child A's allegations were the most serious. She alleged the applicant had been forcing her to have sexual intercourse with him over a period of 11 months, however, he was only charged with two offences. One offence is alleged to have occurred in June 1998 and the other offence is alleged to have occurred in May 1999. Child B's allegation was relatively less serious and an isolated incident.
3. No conviction or finding of guilt has been recorded against the applicant in regard to these offences. A jury found the applicant not guilty of the alleged offences involving child A. That is, the jury found that on the evidence before it, the prosecution had failed to prove, beyond reasonable doubt, that the acts and omission the subject of the two charges laid against the applicant concerning child A. A copy of the transcript of the trial was not before us. We note the respondent sought a copy of the transcript of the trial, but was informed that no transcript could be found.
4. The allegations of child B have at no time been tested at a hearing before a court.
5. The fact that there has been a finding of not guilty by a jury in respect of the charges involving child A does not mean the events as alleged did not occur. Similarly, in the absence of a finding of guilt in respect of the charge involving child B does not mean that the events as alleged by child B did not occur. However, for us to make a finding that the events alleged by child A and child B did occur we would need to be satisfied, on the material before us, that it is more probable than not that the events as alleged by child A and child B in their respective records of interview did occur.
6. In our opinion, in the absence of child A, child B and child OB being available for cross-examination on their respective accounts of the alleged events, we make no finding that it is more probable than not that the alleged events did occur: see Children's Guardian v BRL [2016] NSWSC 1206 at [31], [45] and [49]. At the same time, for the reasons that follow, we are not satisfied that the events as alleged by child A, child B and child OB are a fabrication should be discarded.
7. As we have already noted, the applicant has at all times denied the allegations of his stepdaughters. In his evidence before us, the applicant reiterated that the allegations were untrue. He said he believed child A: "made up the allegations against me to justify her moving out at such a young age and continue her relationship with [name of new boyfriend]."
8. In his submissions to the respondent in the course of her risk assessment, the applicant said child A was sexually active from the age of 15. He explained that prior to child A making the allegations against him, he and AB were constantly fighting with her about her relationship with her new boyfriend. He explained that he and AB did not approve of that relationship and hence their relationship with child A had become very strained. He noted that child A's allegations were made at about the same time she decided, without his knowledge or approval, to suddenly leave the family home and live with her boyfriend.
9. The applicant went on to say that since the criminal proceedings had ended in 2001, he and child A had been able to rebuild a good relationship. He said about a year after the 2001 trial, child A and her boyfriend came back to live with him and AB and they continued to do so for about 2 years. He said child A and her boyfriend then split up and while child A moved out of their home, her boyfriend continued to live with them a little longer and still comes to visit them regularly. He said after one of these visits, AB told him that child A's boyfriend had told her that child A had "made up the whole thing".
10. The applicant's evidence is that he and child A do not talk much about "that period" of their lives now. He said they have tried to put the events surrounding the allegations and his trial behind them - they don't like dragging up the past. He said they had "moved on" with their lives and that child A now has four children of her own and they regularly spend time with him.
11. In his oral evidence at the hearing, the applicant said he had not seen child A for 6-7 months.
12. The evidence of the applicant is that he does not know why child B and her brother, child OB, made the allegations against him in 2000. He said he had a pretty good relationship with the "kids" and it "completely shocked" him when the allegations were made. He said child B was "pretty close" with child A and he surmised she may have made-up the allegations "to try to add weight to [child A's] allegations." He again denied the allegations that were made against him and said, "There is no truth or factual basis to the accusations" that he assaulted child B or was sexually inappropriate with her. He went on to say, like child A, child B also returned to live with him and AB at different points in time and that they have put the allegations behind them and moved on with their lives.
13. As we have already noted, AB has at all times said she believed the allegations made by her daughters, child A and chid B, were untrue. She said the applicant had denied the allegations and when asked, following the allegations made by child A, child B told her that she knew nothing about the applicant having allegedly harmed child A.
14. In her affidavit filed in these proceedings, AB gave a description of the evidence she said she gave at the applicant's trial in 2001. This evidence related to the layout of the home where they lived at the time of the alleged offending involving child A. She also explained her usual evening routine at that time. She explained she went to bed early and what she could see from her bed, as she did not close the door. The essence of her evidence was that, had the events occurred as alleged by child A, she would have noticed or seen what is alleged to have occurred.
15. AB also gave evidence about the strained relationship she and the applicant had with child A prior to her making the allegations. AB's account of events is consistent with that of the applicant. They are also consistent with her earlier statements and record of interview at the time the allegations were made. AB also gave an explanation about the efforts she and the applicant made in trying to get child A to return home when they discovered she had left to be with her boyfriend. We note from statements made by the mother of child A's boyfriend that they viewed these steps as being a form of harassment and intimidation. We make no finding in this regard other than to note an interim AVO was issued against the applicant for the protection of child A at that time.
16. In her affidavit, AB gave a more detailed account of her relationship with child A following the applicant's District Court trial. She explained that after the trial they moved to another home and child A began to visit her when the applicant was at work. She said they never spoke about the criminal proceedings. She said that after some 8-9 months after the trial, child A began speak with the applicant again. AB went on to explain that, some three years after the applicant's trial, child A and her boyfriend came to live with her and the applicant. Child A, she said, was 21 years of age at that time.
17. AB also said child A and her boyfriend were with them for about a year before child A moved out as she had obtained employment in another country town. However, child A's boyfriend stayed for a short time longer. After he left, child A's boyfriend continued to visit and on one such occasion AB asserts he said to her words to the effect: "I have something to tell you…it wasn't true about [name of the applicant]."
18. AB explained that child A gave birth to her first child in 2009 and that, "until a few months ago, when I told [child A] that she might have to come to Court, we continued to have a good relationship."
19. In her interview with police in early 2001, AB explained that her daughter, child B, had left home about a month previously and she was staying with her older sister. She said she became aware of the alleged incident involving child B, about a week after Easter 2000. She said she became aware of the alleged incident at a party. She said she came home from the party and confronted everyone. She asked the applicant if it was true and he responded "No". She said she asked child B if it was true and that she went on to say that if it was true she would take her up to the hospital and have her examined. She said child B started crying and said that it wasn't true. She said child B told her that child OB had made her say it. She said she also asked child OB as to whether it was true and he said it was true.
20. AB went on to say that a week after this child OB was at a party and had been drinking when he broke down and cried and said that he was mistaken and he asked the applicant to forgive him. She went on to say that nothing more was said about it until child OB and child A went up and stayed with their sister. She said they were only supposed to go for a week when "this all came out again and I kept asking [child B] was it true and [child B] said 'No' ". AB went on to state that when she questioned child OB, he again told her it did not happen.
21. In her evidence in this application, AB said that until recently, she and the applicant had a good relationship with child B. Again, her evidence was that when she told child B that she may need to attend "Court" she has not contacted her further.
22. As can be seen from the evidence of the applicant and AB, they have both sought to "move on" from what had occurred. They do not speak about it and have not raised it with child A, or child B. For them it is as though nothing happened and the allegations were indeed a fabrication. Child A having been motivated to make the allegations so that she could live with her boyfriend and child B being motivated to support her sister, child A.
23. While we accept the applicant's evidence and that of AB that child A and child B came back to live with them, in our opinion, this does not mean that the allegations were a fabrication. In this regard, we note, there is no reliable evidence of child A or child B having said to the applicant, AB, or any other person that they fabricated the allegations. They each participated in a lengthy interview with police. Child A gave oral evidence at the committal hearing and was cross-examined. She did not retract her allegation during this hearing. She went on to give evidence at the applicant's trial, which occurred almost two years after the allegations had been made. There is no evidence to suggest she retracted the allegations during that trial. In the absence of any contemporaneous record of AB's conversation with child A's boyfriend or any direct evidence from him for the purpose of this application, we are unable to place any weight on this aspect of AB's evidence.
24. While child B's allegations were made several months after the applicant was committed to stand trial. Why she would make an allegation of this kind to support her sister, child A, is not explained. Child B's allegations were also corroborated in a statement child OB made to police. In his statement, child OB said that later in the day on which the disclosure was made concerning the allegations involving child B, AB said to him, in the presence of the applicant, "[OB], that's it, no more said, we have sorted everything out. I don't want to go through this again."
25. He went on to say that nothing more was said about the incident and everything seemed to go back to normal. However, he went on to say that many times, when AB and the applicant were drinking grog, AB would say "stuff" like "Why did you say that about [child B] and [the applicant]?" He said he would respond by saying words to the effect, "I don't know. It's not true." He said the reason why he said this was because he knew that's what AB wanted him to say. He said it` wasn't the truth but he thought it would be easier for AB and child B if they pretended that he hadn't seen the applicant and child B in the laundry. He reiterated that he did see what he said he saw.
26. We reiterate, we make no finding that the events as alleged by child A, child B and child OB did in fact occur. However, we are nevertheless satisfied on the material before us that the fact that allegations of the kind made by child A, child B and child OB is a relevant factor to be taken into account for the purpose of assessing whether the applicant poses a real and appreciable risk to the safety of children as we are not satisfied with the explanations of the applicant and AB, that the allegations are a fabrication.

(b) the period of time since those matters occurred and the conduct of the applicant since that time,

1. The allegations made by child A were made 17 years ago. The allegations made by child B were made 16 years ago.
2. Since those offences are alleged to have occurred, in 2003, the applicant was again convicted of common assault of AB. The assault occurred at a time the applicant was intoxicated. He assaulted AB by punching her in the right side of her neck. As we have noted the applicant pleaded guilty to the offence and also consented to an AVO being made to protect AB for a period of 12 months.
3. It is the evidence of the applicant and AB that since that time they have reduced the amount of alcohol that they consume. The applicant's reduction in alcohol consumption they say is due to the applicant's emphysema and chronic back pain.
4. There has been no further report of the applicant behaving violently towards AB or any other person since April 2003.

(c) the age of the applicant at the time the matters were alleged to have occurred and any matters relating to the vulnerability of the victims,

1. The applicant was aged 43 and 44 at the time the offences are alleged to have been committed on child A and child B.

(d) the age of the victim at the time the matters occurred and any matters relating to vulnerability of the victim

1. As we have already noted child A was aged 15 and 16 years at the time of the alleged offences and child B was aged 14 years. The vulnerability of child A and child B was that they were children and the applicant was their stepfather, who they believed they could trust.

(e) the difference in age between the victims and the applicant

1. There was a 28 and 30 year difference in age between the applicant and child A and child B.

(f) whether the person knew the victim was a child

1. There is no dispute that the applicant knew at the time the alleged offences are alleged to have occurred that his stepdaughters were children.

(g) the applicant's present age,

1. The applicant is now 62 years of age.

(h) the seriousness of the applicant's total criminal record,

1. As pointed out in the background above, the applicant has prior convictions for violence, which include a number of assaults committed on AB in 1989, and 1990. The first offence occurred shortly after the birth of the applicant's eldest son. The records state that the assault involved the applicant pushing AB and forcing her to strike her head on a brick wall of a shop. The record states that AB hit the back of her head against the wall and fell onto the ground and that the applicant walked off. AB was taken to the local hospital and required three stitches to the wound to her head.
2. The second assault occurred later that year when AB was pregnant with their second child. The offending conduct occurred in the family home on the night in question. AB is recorded as having informed police that the applicant had punched her in the face causing her nose to bleed and that he later kicked her in the lower back and in the stomach. It is also alleged the applicant threw a number of items of glassware at AB her causing two deep lacerations which required her to attend the local hospital. As noted above, the applicant pleaded guilty to both assaults. However, in these proceedings the applicant denies he assaulted AB in the manner recorded by police. He admits that he slapped her with an open hand and that he did so to make her stop throwing glass at him as she was intoxicated. In these proceedings, AB also denied that the applicant had kicked her.
3. As noted in the background above, the applicant was also convicted of having assaulted the brother of AB in late 1995 and a further offence of assaulting AB in 2003.
4. The applicant in his submissions accepted that any offence of violence is serious, but went on to say that there is a graduating scale of seriousness of such offences. We understand the applicant to submit that his assaults of AB were not at the serious end of the scale for such offending. It is also submitted that the applicant's alcohol abuse was a significant factor in his offending. As there have been no further offences since 2003, it was argued that this was consistent with the applicant's significant reduction in the amount of alcohol he consumes. It was the applicant's evidence that he used to drink "quite heavily", but he has not done so for the last eight years. He said he now drinks "about once a week" when he and AB catch up with family and then he only has a couple of drinks.

(i) 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 submits that there is no likelihood of him committing further offences of violence given his reduction in alcohol consumption and no further offending for 13 years. He also submits that on the basis of the alleged unlawful sexual intercourse and indecent assault offences having not been proven, there is no likelihood of an offence of this kind occurring in the future.
2. Finally, the applicant relies on the opinions expressed by Dr Lennings in his report.
3. In his report, Dr Lennings undertook a risk assessment using the Risk for Sexual Violence Protocol (RSVP), developed by Hart, Kropp, Laws, Klaver, Logan and Watt (2003). In using this risk assessment tool, Dr Lennings noted that he was unable to utilise actuarial measures in regard to the alleged sexual offending because no criminal findings of guilt had been made. Hence, he based his findings on the assault offences for which the applicant was convicted.
4. Dr Lennings explained the RSVP is a structured clinical judgment tool that assesses both static and dynamic factors that have been related to risk across the sexual offending, psychosocial adjustment, future plans and any other relevant domains. He said risk factors are coded as historical or contemporary (present in the last 12 months). Dr Lennings assessment of the applicant's current risk on the RSVP assessment were described as follows: "45. …[the applicant] has a number of low and moderate risk factors associated with his history. The risk factors include his previous history of drug and alcohol use although his current binge pattern maintain some concern about alcohol abuse, and past criminality, especially his previous difficulties in his relationship with [AB] and the allegations of domestic violence. Such risk factors are not current. Protected features for [the applicant] relate to the recovery he appears to have gone through in regard to psychological functioning and parenting functioning, in particular associated with the reduction in both his and [AB's] alcohol use. Nonetheless some concerns remain about his capacity to parent generally as opposed to any specific risk that might be entailed in the sexual abuse allegations. However, there is no obvious risk of sexually violent or violent behaviour targeted towards children. 46. Another issue for risk assessment is the risk of violent behaviour. [The applicant's] risk of violent behaviour is constrained to domestically violent situations with his wife. That risk is almost certainly taken up by two factors. The first is the mutual volatility in their relationship and the second is the heavy level of intoxication that appears to have accompanied each aggressive outburst. Given that the relationship for the past 8 to 9 years has been characterised by minimal intoxication and better levels of communication, the risk of future violence appears to have largely evaporated. In addition, the function of age and also illness has reduced the energy with which [the applicant] approaches life and can be expected to minimise risk even further."
5. In response to specific questions asked of him, Dr Lennings made a number of observations.
6. In regard to the question - "Does the applicant pose a risk to children?" - Dr Lennings said it appeared to him that the applicant did not pose an appreciable risk to the harm of children; namely that his risk was low. In this regard he said he did not believe the allegations in regard to sexual assault bore much in the way of scrutiny. He said it appeared to him that the behaviour of child A and child B can be explained by factors such as the children objecting to the capricious and authoritarian approach both parents were seemingly taking to parenting at the time. He said it was his belief that the way the applicant and AB treated the children prior to 2005 was dysfunctional as a result of their frequent intoxication.
7. He went on to say that it is difficult to believe that child A and child B would relocate to the parental home if they genuinely had been abused in the way they described.
8. As to whether the applicant may manifest risk of harm to children based on his previous violent behaviour, in particular alcohol fuelled behaviour, Dr Lennings noted a sufficient period of time had elapsed since that offending to suggest that a substantial change had taken place in the applicant's behaviour and that he is unlikely to repeat them because of his moderated alcohol consumption.
9. In regard to risk of harm more generally, Dr Lennings said, because of poor parenting practices, had the assessment been conducted 10 years earlier there is no doubt that the applicant's family would have scored in the high range of risk for child abuse because of the very dysfunctional relationship between the applicant and AB. He said that risk appears to have moderated over time, with the reduction of alcohol consumption and the maturing of the applicant and AB. Dr Lennings went on to say it was notable that the Department of Family and Community Services had assessed the family as being safe to care for their grandson.
10. In regard to the question - "If the applicant poses any risk how would you describe that level of risk?" - Dr Lennings said that in the event the applicant continues to drink it is possible that an intemperate moment could occur between he and AB. He said it was also possible that a return of poor parenting practices may re-occur, although on the basis of the information he had been given and the sustained change that appears to have taken place in both AB and the applicant's behaviour he suspected that this was not the case. Therefore, he currently characterised the any risk as low.
11. In regard to the question - "To the extent that they are relevant how do the circumstances set out in S 30 of the Act affect the assessment of risk?"- Dr Lennings said historical risks exert little weight in considering the current behaviour of the applicant, although some caution is required in considering his general parenting role. However, he concluded there is no evidence that he currently represents an appreciable risk of harm to children.
12. In regard to the question "Other circumstances that might materially affect the assessment of that risk? If so how do these circumstances affect your assessment?", Dr Lennings said he believed that any residual child protection risk to parenting practice can be managed by the continuation of oversight in the applicant and his family by the Department of Family and Community Services.
13. In his oral evidence at the hearing, Dr Lennings said that where there is no finding of fault, the RSVP risk assessment nevertheless requires him to place some weight/judgment on the allegations. In this regard, his evidence was that in his opinion child B's allegations were more strategic in that she wanted to support her sister child A. Dr Lennings accepted that risk of violence was a general child protection issue especially where the violence is associated with alcohol consumption. He said on the material he was given, both AB and the applicant were drinking excessively and as a result they were emotionally deregulated and probably neglectful of their parenting responsibilities. He noted the applicant had said they were no longer drinking excessively, but he thought it would be wise for the applicant to abstain given his long-term violence.
14. Dr Lennings also agreed children witnessing domestic violence is a child protection issue. He said exposure to domestic violence creates anxiety in a child and can also teach a child that violence is acceptable behaviour to solve problems in the future.
15. We accept that the likelihood of the applicant behaving violently or otherwise abusing his grandson is low. However, this is not the question we must ask in this application, as we must consider the likelihood of reoffending in the context of the applicant working in any child related activity.

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

1. In support of his application the applicant relied on two references. These were provided to the respondent for the purposes of her assessment. Each witness states that they have known the applicant for many years. The female referee states that she has always found the applicant to be respectful, friendly and trustworthy and in her opinion he is very family oriented and his children and grandchildren mean the world to him. The other referee states that he has had a long association with the applicant and his family and it has been his pleasure to have watched and learned valuable family lessons and life lessons from him.
2. Neither referee makes any reference to the applicant's convictions or the allegations that were made against him. In our opinion we can give them very little weight.

(k) any other matters that the respondent considers necessary.

1. The respondent contends that, on the material before us, we can be satisfied that the applicant poses a real and appreciable risk to the safety of children.

Conclusion and Orders

1. We reiterate, the principal issue for us to determine in this application is whether the applicant poses a real and appreciable risk to the safety of the children today. There is no presumption that he does pose a real and appreciable risk to children. However, in making our determination we must have regard to the paramount consideration in the operation of the WWC Act, which is the safety, welfare and wellbeing of children in protecting them from child abuse.
2. The matters of concern in regard to risk in this application are the 1999 and 2001 allegations of sexual abuse made against him by his step daughters, child A and child B, his history of assaulting AB and his excessive alcohol consumption. The allegations made by child A, child B and child OB are serious, if true. While we make no finding that the allegations are true, for the reasons stated above, we find that they are nevertheless relevant to the issue as to whether the applicant poses a real and appreciable risk to children.
3. There are four incidents of the applicant having assaulted AB a number of times between 1989 and 2003. This offending, the applicant acknowledges, occurred at a time he was intoxicated, as was AB. It would appear that some of this offending occurred at their home. There is no record of the children having witnessed these assaults. However, they must have seen the injuries sustained by AB.
4. In our view, these assaults on AB are of concern.
5. The allegations made by child A, child B and child OB were made 16 and 15 years ago and since that time there is no evidence of any further allegations of this kind having been made. Furthermore, it has been 13 years since there has been any report of the applicant having acted violently towards AB. It is the evidence of the applicant and AB that this is due to them having reduced their alcohol consumption. These are all factors in favour of the applicant and we accept that the likelihood of applicant offending again in the manner he has acknowledged to have offended in the past is low if indeed he has lessened his alcohol consumption as asserted. While we accept the applicant may have reduced his alcohol consumption, we are not persuaded that the applicant is unlikely to return to his old habits of drinking excessively. It is not altogether clear what made him reduce his alcohol consumption. Nor has he acknowledged any insight into the affect his excessive alcohol consumption may have had on his children and stepchildren. As noted by Dr Lennings, given his previous violent conduct it would be advisable for the applicant to abstain form any alcohol consumption.
6. We note the allegations made by child A, child B and child OB were also made during the period where the applicant drank excessively.
7. While we make no finding that the allegations made by child A, child B and child OB are true, for the reasons we have given above, we are concerned about the applicant's ongoing response to the allegations. In our opinion, this causes us some concern about the applicant's insight into child protection issues that may arise in a child-related working environment.
8. Hence, on balance, having regard to the paramount consideration in s 4 of the WWC Act, we are satisfied on the information before us at the hearing of the applicant's application, that the applicant poses a real and appreciable risk to the safety of children.
9. While we agree with the evidence of Dr Lennings that any concerns about risk of harm to the applicant's grandson could be adequately addressed through the supervision of the Department of Family and Community Services, this would require the applicant being given a clearance that was either conditional or limited to the specific child-related work for which he has sought a clearance. The WWC Act does not vest the respondent with the power to issue a clearance with conditions or for a limited purpose. Hence, on administrative review the Tribunal equally has no power to do so.
10. Accordingly, we find the decision of the respondent is the correct and preferable decision and should be affirmed.

Order The decision of the respondent, made on 13 October 2015, to refuse the applicant's application for 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: 09 June 2017