CGR v Children's Guardian

Background

1. The applicant is an aboriginal woman living in a country town within New South Wales. She has cared for children in one capacity or another since she was 15 years of age. The applicant is now 37 years of age.
2. The applicant's father died when she was 15. With the help of Community Services the applicant began to care for her young sister and her two brothers when she was 15. Her brothers returned to live with her mother, but she continued to look after her sister. She has had care of her sister from the time she was 4 years of age until she turned 18 years of age. The applicant's sister now has a child of her own.
3. Some 18 years ago the applicant's youngest brother, child YBA, was born and the applicant has cared for him since that time. The applicant has also cared for many of her nieces and nephews.
4. In December 2004, when the applicant was 25 years of age, Community Services visited the applicant at her home after receiving a report from a Correctional Centre about potential child abuse. The report related to a telephone conversation between the applicant and her brother who was in prison at that time. In that conversation, on being asked about a particular child (not a child relevant to these proceedings), the applicant was heard to say "the kids were messing around with his private" and "I was that wild, [name of person] won't even hit them or anything."
5. In February 2005, the applicant attended the offices of Community Services to report that one of her nephews (not a child relevant to these proceedings) had been taken to hospital as he had two black eyes and was bleeding from the anus.
6. In 2006, Community Services placed child GNA, a great nephew, into the care of the applicant. Child GNA was only a few weeks old and he remained with the applicant for one to two years. In November 2011, Community Services returned child GNA to the applicant's care. Child GNB, the brother of child GNA, was born in early 2011 and in late 2012, Community Services placed child GNB into the applicant's care.
7. In December 2012, the three children of another brother of the applicant came to stay with her. The children were two boys (child NA and child NB) and a girl (child NC). At the time of their visit with the applicant, child NA was seven years old and child NB was six years old. In her evidence, the applicant explained that her brother (the children's father) had been incarcerated in October 2011 and after he was incarcerated, the mother of the children abandoned them. The applicant said she had requested the children be placed in her care. However, they were placed into the care of their maternal relatives, who lived in another country town some distance away. The children came to stay with the applicant for about a week during the second half of December. During this time the applicant had to work and her mother looked after the children together with child GNA and child GNC. The applicant's youngest brother, child YBA, was also in her care at that time. He was 14 years of age and child GNA was six years old.
8. In the month prior to the visit of child NA, child NB and child NC (i.e. November 2012), the applicant had attended the offices of Community Services to report that child NA had told her that an older boy was "being dirty" to him.
9. In December 2012/January 2013, after child NA, child NB and child NC had returned to their carer, the applicant made a report to the Community Services Help Line that while child NB was in her care he exhibited obsessive/compulsive behaviour with a constant desire to clean things up.
10. In January 2013, child NA and child NB were interviewed by officers of Community Services. During the interview with child NA, he disclosed that child YBA was "dirty" with him while he was staying at the applicant's home. He also said that his brother, child NB, and child GNA were in the room with him when this happened. Child NB gave a similar account of what had happened when he was interviewed. He also said the applicant was outside watering the garden when this happened and that he went outside and told her that child YBA was being "dirty" with child NA.
11. On 12 January 2013, officers from Community Services Joint Investigation Response Team (JIRT) attended the home of the applicant to remove child GNA from the applicant's care. When child GNA became upset and refused to leave without the applicant, the officers decided child GNA could stay on the condition the applicant's youngest brother, child YBA, ceased to reside with her. It has been the applicant's case that it was not until this day, when the JIRT officers came to remove child GNA from her care that she was first made aware of the allegations. That is, she has at all times denied that child NB had spoken to her on the day of the alleged sexual assault as he had asserted during his interview with the officers of Community Services.
12. In May 2013, Community Services informed the applicant that child GNA and child GNB would be removed from her care. They were subsequently removed from her care, in July 2013. At the time of the removal of the boys from the applicant's care, Community Services determined to cancel her authorisation as an out-of-home authorised carer. However, she was not formally informed of this until September 2015.
13. In the meantime, child YBA was charged in regard to the alleged sexual assault. The applicant explained in her evidence that child YBA was remanded in custody for almost a year. In June 2014, the Director of Public Prosecutions withdrew the charge just before child YBA was due to stand trial.
14. The applicant has, at all times, expressed her strong belief that her younger brother (child YBA) was innocent and would never have engaged in such conduct. It was her belief her nephews, child NA and child NB, had been coached by their carer to make up the allegations.
15. In April 2014, the applicant was informed by Community Services that she was not able to care for child GNA and child GNB because she was recorded as "a person associated with causing harm" (PACH) due to her failure to respond appropriately when informed about an alleged incident of sexual abuse of a child in her care. The applicant lodged a complaint with the Ombudsman in regard to Community Services having declared her to be a PACH.
16. In September 2014, the Community Services RCU completed its investigation report in regard to the allegation that, in 2012, the applicant had neglected child NA, NB and YBA by failing to respond to information strongly indicating actual or potential serious abuse by "failing to take action after being informed by [child NB] that [child YBA] and [child NA] were engaging in sexual behaviour with each other." The investigation found that the allegation was "not sustained" and on this basis it was noted: "a notification to the OCG [Office of the Children's Guardian] is not required. The report concluded with the following statement under the heading "Risk Assessment": "The carer has been deauthorised (sic) so risk of further allegations of this nature is minimal."
17. In December 2014, the respondent issued the applicant with a clearance under the WWC Act.
18. As we have noted, in September 2015, Community Services formally notified the applicant that her authorisation had been cancelled. The applicant sought internal review of that decision, which was affirmed on review.
19. On 2 October 2015, pursuant to Chapter 16A of the Children and Young Persons (Care and Protection) Act, the Office of the NSW Ombudsman sent a workplace notification to the respondent in respect of the same allegation investigated by the Community Services RCU. It was this notification that triggered the respondent's risk assessment of the applicant under s 15 of the WWC Act.

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: (a) the person holds the relevant working with children check clearance, or (b) 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. 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].
8. Section 18 prescribes how the respondent is to determine an application for a clearance.
9. Where a clearance has been granted, that clearance ceases to have effect 5 years after it was granted, unless it is sooner cancelled or suspended: WWC Act, s 22(1).
10. Where a clearance has been refused, or cancelled, s 13A of the WWC Act creates an embargo on making a further application for a clearance for 5 years, unless the matters in s 13(2) arise.
11. Section 23 of the WWC Act sets out the respondent's power to cancel a person's clearance. That section relevantly provides as follows: "23 Cancellation of clearances (1) The Children's Guardian must cancel the working with children check clearance of a person if the Children's Guardian becomes aware that the person is a disqualified person or the Children's Guardian is satisfied that the person poses a risk to the safety of children."
12. Subsection 18(1) of the WWC Act defines a "disqualified person" to be a person who has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in Sch. 2 of the WWC Act, or who has been charged with such an offence and the proceedings in regard thereto are pending. The applicant, CGR, is not a disqualified person.
13. Section 15(1) of the WWC Act provides that the respondent is to conduct a "risk" assessment where an applicant for a clearance, or the holder of a clearance is or becomes subject to a s 14 assessment requirement trigger as prescribed in Sch 1 of that Act.
14. The relevant assessment requirement trigger in the applicant's case is cl 2A of Sch 1, which is in the following terms: "2A Notification by Ombudsman (1) A person has been the subject of a notification of concern to the Children's Guardian by the Ombudsman that, on a risk assessment by the Children's Guardian, the Children's Guardian may be satisfied that the person poses a risk to the safety of children. (2) A notification of concern is a notification made by the Ombudsman as a result of concerns arising from the receipt of information by the Ombudsman in the course of exercising the Ombudsman's functions."
15. 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."
16. Section 15 of the WWC Act sets out the matters the respondent may have regard to when conducting a risk assessment. The matters in s 15 are similar in terms to what the Tribunal is to have regard to when considering a review application: see WWC Act, s 30.
17. A person who has his/her clearance cancelled under s 23 of the WWC Act has a right to seek external review of that decision by the Tribunal under s 27(2) 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.
18. As mentioned above, s 30 of the WWC Act sets out the matters the Tribunal must consider in determining an application for external review. At the time the respondent determined to cancel the applicant's clearance that section was in the following terms:
19. Section 30(1) and (1A) provide 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. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order."
20. While s 30(1)(a) only makes reference to "matters" that caused a "refusal" of a clearance and does not include a reference to the "cancellation" of a clearance, in our opinion it should be construed to include such a reference. That is, having regard to the purpose of the section, the other provisions in Part 4, the terms of s 15(1) and the entirety of the legislative scheme, Parliament intended the matters specified in s 30 were to equally apply in circumstances where a clearance had been cancelled.
21. Section 30 was amended, in November 2015, by the insertion of an additional cl 30(1A): see Child Protection Legislation Amendment Act 2015 (NSW), Sch 2, cl 31. As the respondent's decision to cancel the applicant's clearance was made after the coming into force of this subsection, it applies to this application: see CHB v Children's Guardian [2016] NSWCADTAD 214, at [124].
22. In CTM v Children's Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered by the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267, where it was held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.

Evidence before the Tribunal

1. In support of her application the applicant relied on an affidavit sworn by her on 10 June 2016, and a psychological risk assessment report of Ms Caroline Hare (dated 12 July 2016) together with an Addendum to that report (dated 8 September 2016).
2. The applicant and Ms Hare also gave oral evidence at the hearing and were cross-examined by counsel for the respondent.
3. The respondent relied on a large tender bundle of documents and a smaller bundle of further documents. The documents included in the bundles were copies of:

• the applicant's criminal history,
• relevant police Computer Operational Police System (COPS) event reports dated March 2013, October 2013, May 2014 and June 2016,
• the RCU Investigation Report dated 24 September 2014, relevant assessment and contact records of Community Services and the 2013 ERISP transcripts of the interviews with child NA, child NB, child GNA and child YBA concerning the December 2012 incident that is alleged to have occurred at the applicant's home,
• statements the applicant made in 2014 in regard to the allegations made against her youngest brother, child YBA, and
• the applicant's Apprehended Violence Order History.

1. Counsel for the applicant and the respondent also provided detailed written submissions.

Consideration

1. We note the jurisdiction of the Tribunal in matters under the WWC Act 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 person for past acts, or alleged 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 the cancellation of the applicant's application for a clearance

1. As we have noted, the matter that triggered the respondent's risk assessment of the applicant was the workplace notification from the NSW Ombudsman's Office. In the letter of cancellation, the respondent said the following in regard to this trigger event: "…[This] record is serious in that it was alleged you failed to report sexual abuse of a child in your care. The victim was your 7 year old nephew. The accused was your 14 year old brother. There was also an allegation that you encouraged the victim not to tell others what had happened by offering to buy him a motorbike. You were de-authorised as a kinship carer on 24 July 2013 due to the JIRT substantiating the sexual assault allegations. The Department of Family and Community Services recorded you as a "person associated with causing risk"."
2. As we have noted in the background above, the applicant has at all times denied the allegation that she failed to report sexual abuse of child NA while he was in her care. The Community Services RCU also found that the allegation that child NB had informed her, on the day in question, of the alleged sexual abuse had not been established on the material before it. Hence, the RCU found that the failure to report the alleged sexual abuse when child NA was in her care had not been established. We accept these findings, as there is no evidence before us to indicate otherwise.
3. However, in our view, the circumstances giving rise to the alleged sexual abuse and the applicant's conduct subsequent to being informed of the allegation do raise questions about the applicant's level of understanding about issues of child protection when one is engaged in child-related work.
4. First, there is the applicant's strong belief her younger brother, child YBA, was innocent and would never have engaged in such conduct. At no time did the applicant acknowledge a possibility, even if that possibility was remote, that the alleged sexual abuse had, in fact, occurred. She was adamant, and remains adamant, that the alleged abuse did not occur. In her oral evidence the applicant said she believes everyone is innocent unless proven guilty. In her affidavit the applicant said she wanted child YBA's trial to proceed as this would have demonstrated his innocence.
5. The applicant is correct that a person charged with a criminal offence is not criminally liable until a court finds that person guilty of the offence charged. However, this does not mean that until a court has found a person guilty of the offence charged, potential risk of harm to others is ignored. This is especially so in the context of child-related work where the safety, welfare and well-being of children is at all times paramount, even where a charge is subsequently withdrawn or dismissed: see WWC Act, s 4, Sch 1 cl 1(2) and BKE (supra), at [33].
6. The applicant also held a strong belief that her nephews, child NA and child NB, had been coached to make the allegations by their carer. Again she continues to hold that belief as of today. In a statement made on 18 February 2013, the applicant said she believed that the allegations were a personal attack against her and her family because of what her mother had said to the carers on New Years Day that year (i.e. 2013). The applicant explained that her mother had told the family that when she was young, the father of the children's female carer had tried to rape her on a number of occasions, but an older person had saved her.
7. In our opinion, while the female carer was present when the children, child NA and child NB, were interviewed by Community Services this does not mean the children were coerced to say what they said. Had this been the case, one would expect the interviewing officers and those who dealt with the case subsequently would have questioned more closely the disclosures that were made. What is evident from the material before us is that there was some friction between the applicant and the family of her brother who was in prison at that time.
8. It is also evident from the material before us that there was a history of sexual abuse of children within the applicant's extended family and there were ongoing concerns about sexualised behaviour of some children within that extended family. The applicant was clearly aware of this history and the ongoing concerns, having been abused as a child herself and through her care of her own siblings. With this awareness it is difficult to understand why the applicant's beliefs were, and continue to be, so polarised and strong, especially where her role as an authorised carer was primarily to protect the children in her care from harm. We accept the applicant took steps to ensure the children were safe when she was present and we are not critical of her in this regard. However, on her own admissions she was not always present when the children were together. Yet she adamantly rejected any possibility that the alleged abuse may have occurred.
9. Also of concern is the applicant's engagement with child NA after her brother, child YBA, had been charged and was awaiting trial. For example, in her statement made on 5 March 2014, for the purpose of the criminal proceedings against child YBA, the applicant said that at the end of December 2013 child NA told her his carer had made him and his brother say what they had said about their uncle, child YBA. The applicant asserted this was not the only time child NA had told her this is what happened.
10. It is unclear why the applicant was meeting with child NA while the allegations were being investigated and the criminal proceedings were pending and how she allowed a discussion to occur with NA in regard to the allegations. In her oral evidence the applicant said she had not been informed that she was not allowed to be around the children while the investigation was pending. She also said she at no time sought to influence NA as to the evidence he should give.
11. The records produced by NSW Police suggest the contrary. The records state that, in May 2014, when police interviewed child NA, he said he had been at the applicant's home sometime the previous year when the applicant told him not to tell what his uncle, child YBA, had done to him or his uncle would go back to jail again. The child is also alleged to have said that the applicant told him that she would buy him a motorbike for doing this. In this regard the police event report notes that the children had been attending the applicant's house for dinner in "December 2013, January 2013 and March 2013". Having regard to the police record as a whole, it would appear the January and March visits should be 2014 and not 2013.
12. The police records also state that later in May 2014 police officers spent a number of hours with the "victim", child NA, where he displayed: "… [anxiety] and nervousness about going to court the following week. He would not watch his interview he had participated in…the previous year which the Crown would be relying upon during the trial. He would not talk about the allegations only to say that they were true. When the interview DVD was playing VIC (i.e. child NA) ….got onto the carpet from his seat placed his face into the floor and commenced to kick his legs and wiggle. …said he didn't want to go to court, he was worried about who was going to be there and who was going to see this interview…asked if there is someone in particular who he worries about seeing the interview? VIC….said uncle…[the applicant] and…."
13. We note the police record states child YBA's criminal trial did not proceed due to the fragile mental state of child NA, who was 8 years of age at that time. We also note that police subsequently spoke to the applicant about an allegation she had sought to influence a court witness, child NA. She was offered the opportunity to be interviewed about the allegation but she declined the opportunity.
14. We make no finding that the applicant did, in fact, intentionally seek to influence child NA and the evidence he would give. However, given the circumstance and the applicant's strong beliefs, we nevertheless find the applicant had little, if any, understanding of her role as a person authorised to provide out-of-home care for vulnerable children. That lack of understanding, in our opinion, demonstrates a serious lack of the protective qualities necessary for persons engaged in child related work and thereby posing a risk to the safety of children. We accept the applicant did not intend to place the children in her care at risk, or deliberately neglect them. However, it is evident from the material before us that the applicant's understanding of child protection issues was clouded by her strong loyalty to her immediate family and a general lack understanding about issues concerning the protection of vulnerable children in care. Of concern to us is that in her oral evidence the applicant said she would not do anything different today.

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

1. It is almost five years since the alleged incident occurred. Since that time the applicant has not had any further children in her care, nor has she worked in any other child related work.

(c) The age of the person at the time the matters occurred

1. The applicant was 33 years of age at the time of the alleged December 2012 incident.

(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

1. At the relevant time the alleged victim, child NA, was 7 years of age. The other boys who are alleged to have witnessed what occurred were 6 years of age. The boys were particularly vulnerable given their young ages, and the fact that they had been removed from their parents and placed into out-of-home care.

(e) 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 the biological aunt of child NA and she was 25 years older than him. She was the sister of child YBA and approximately 17 years older than him.

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

1. The applicant knew the victim and the other children in her care were children.

(g) The person's present age

1. The applicant is now 37 years of age.

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

1. The applicant has been charged with a number of offences, including offences of violence.
2. In October 2002 she was convicted of common assault and destroy/damage property for which she was fined $1000 and $400, respectively. In her oral evidence the applicant acknowledged the victim of the assault was 16 year-old boy. She said the offending conduct was in retribution for the boy having allegedly stolen her property. The applicant said she now realises her conduct was inappropriate and she would not do that now.
3. In February 2004, she was found guilty, without a conviction being recorded, of the offence of using offensive language in/near a public place/school. In February 2009, the applicant was found guilty of affray. That conviction was subsequently quashed on appeal.
4. The most recent charge was for an offence of assault in February 2010. The victim of that offence was the applicant's sister. The charge was subsequently dismissed, however, the basis for dismissal is not clear from the material filed.
5. The respondent concedes the applicant's offending conduct and alleged offending are at the lower end of seriousness for such conduct. The offending conduct, it was noted, arose within the context of the applicant having consumed alcohol. While the applicant's offending and alleged offending did not involve a child, some of the offending and alleged offending occurred when children were present.
6. The respondent also concedes that the applicant's criminal history of itself is not such that it alone would be a basis on which to refuse a working with children check clearance. However, it was submitted, and we accept, that this history is relevant in determining whether the applicant has sufficient insight into her conduct and how it can impact on children, particularly when she has consumed alcohol.
7. The applicant has also been the subject of a number of Apprehended Violence Orders since 2002. The most recent order was an interim order made in March 2014.
8. The records produced by Community Services state that in 2012 the applicant had hit child YBA and child NA. The applicant denied she had hit the boys on that occasion. While she acknowledged that she had previously hit the children she said that she had ceased doing so.

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

1. In issue in this application is, given the circumstances surrounding the 2012 incident and the applicant's conduct thereafter, whether there is a likelihood that the applicant would again conduct herself in a manner which is not protective of children in her care.
2. In this regard the applicant relies upon the 2014 Community Service RCU report, which assessed the applicant as being protective. However, as we have noted above, that Report also noted that there were no issues in regard to risk as the applicant's authorisation had been cancelled and she had no children in her care.
3. In her initial risk assessment report of July 2016, Ms Hare (psychologist) said, in her opinion, the applicant presents with strengths and weaknesses as a carer. In regard to her strengths Ms Hare said: "…[She] evidences a sound understanding of warning signs that children in her care could be experiencing harm, and she was able to outline actions that she would take in response to concerns that such warning signs were present. She also evidences extraordinary devotion to caring for siblings and relatives since her adolescence, and seemingly at the expense of forming serious intimate unions, or pursuing a career. She is generally pro-social, despite some minor criminal history, and some episodes of unwise alcohol use, but she has otherwise seemingly provided a high standard of care to children when placed with her."
4. In her subsequent report of September 2016, after receiving some additional material, Ms Hare revised her opinion that the applicant had provided a high standard of care. Her revised opinion was the applicant provided a largely adequate standard of care.
5. In her July 2016 report, Ms Hare said the following in regard to the weaknesses in the applicant's conduct as a carer: "…[the] concern is that [the applicant] disbelieved the allegation [of sexual abuse], and in relation to certain aspects, behaved in accordance with her opinion, rather than allowing the investigation to take its course and engaging in appropriate protective behaviours. Positively, [the applicant] seemingly complied with requirements to physically maintain [child GNA's] safety by not allowing [child YBA] to reside in the home with child GNA. However, negatively, [the applicant] allowed [child NA] and [child NB] into her home whilst the matter was still ongoing, exposing them to risk of psychological harm, and allegedly negatively influencing [whether directly or indirectly] [child NA's] willingness to continue with the criminal process. Worryingly, [the applicant] continues to lack insight into how her actions could have impacted [child NB] and [child NA]'s psychological wellbeing, although the weight that is afforded to this concern depends largely on whether the alleged behaviours, with regards [the sexual abuse] occurred."
6. Ms Hare concluded her July report by saying: "I believe that the critical issue in this case is that if the allegations are to be believed, [the applicant] was presented with a test of loyalty - either to protect her sibling or the other children in her care. If the allegations are true, she was unable to prioritise the safety of the other children over her need to protect her siblings, and to that extent, she revealed a lack of protectiveness that raises doubt about her ability to act protectively in the future should a similar situation unfold. In such a situation, I believe that [the applicant] poses a real and appreciable risk to the safety of children in her care as it is possibly that she would not act protectively to all children. I acknowledge, however, that the risk being discussed pertains to a highly specific set of circumstances that are relatively unlikely to be replicated. The type of risk that [the applicant] poses in such a situation would in my opinion amount to emotional/psychological risk associated with a failure to protect, rather than her posing a risk of direct physical or sexual harm. Specifically quantifying the level of risk posed by [the applicant] in such a scenario is highly subjective, as there are no structured psychological risk assessment tools developed to measure such a risk. Further, a limitation of this conclusion is that it relies to some extent upon a finding of fact that the abuse in the original matter did occur, as alleged. This is obviously a limitation, as no finding of fact, per se, has been established. Were it to be concluded that the abuse allegedly committed by [child YBA] likely did not occur, then my above conclusion regarding [the applicant's] lack of ability to respond protectively in that situation, (and potential future similar situations) would be nullified. Outside of the highly situational circumstances described above, I am of the opinion that [the applicant] evidences awareness of child safety issues, and an ability to respond to these appropriately..."
7. In her subsequent report, Ms Hare said that even though she had been provided with some additional material and made some amendments to her original report, her assessment of the applicant's risk of harm to children had not substantially changed.
8. In her oral evidence, Ms Hare again expressed concern about the applicant's unwillingness to accept her youngest brother, child YBA, may have sexually assaulted child NA. In this regard Ms Hare said the applicant was blinded by her own experiences and this showed a lack of insight into conduct of this kind. Nevertheless, Ms Hare did not resile from her ultimate conclusion.
9. While Ms Hare formed the view that the situation the applicant found herself in during 2013 was unlikely to arise again, we are not persuaded to the same view. We are not so persuaded because the applicant continues to hold her very strong beliefs, she has not had any children in her care since that time and it is her evidence that if she were to be granted a clearance she would seek to have her grand nephews, child GNA and GNB, placed into her care.

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

1. In her affidavit the applicant said that she would, one day, love to care for children again, especially child GNA and child GNB, as they are currently placed with strangers. She went on to say that the events of the past few years have had a devastating effect on her and her family. She said she still feels traumatised by the actions of the police and Community Services following the allegations made against her younger brother, child YBA. She reiterated that her whole life, since she was 15, has been dedicated to caring for children. She said the events, the subject of this application and the removal of the children from her care have left her feeling helpless and without a purpose in life anymore. She said she has been left battling depression, anxiety, sleepless nights and weight loss, amongst other things. She said she felt that people in positions of power, who are supposed to protect her and her family have destroyed them.
2. In her affidavit, the applicant explained that not only was she sexually assaulted as a child, she was neglected and also suffered from psychological, verbal and physical abuse. She said she has not spoken about these matters until very recently and she was currently on a waiting list to give evidence before the current Royal Commission into Institutional Responses to Child Sexual Abuse. These experiences, she asserts, have given her an insight into such behaviours and what to do in order to protect children from such abuse.
3. In her oral evidence the applicant said she just loves helping people. She also and there is nothing she would do differently now to what she did in 2012-2014.

(k) Any other matters that the Children's Guardian considers necessary

1. The respondent contends, on the material before the Tribunal, the correct and preferable decision is to cancel the applicant's clearance on a number of grounds, including the applicant's demonstrated lack of insight and poor protective qualities for a child in her care.

Conclusions

1. We reiterate, our role is to determine the correct and preferable decision having regard to the material before us, and the applicable law. In this regard, the ultimate issue for us to determine is whether, in the circumstances, having regard to the paramount consideration in section 4 of the WWC Act and having considered the matters in subsection 30(1) of that Act, we can be satisfied the applicant today poses a real and appreciable risk to the safety of children. If we are so satisfied, we must find that the decision of the respondent is the correct and preferable decision. If we are not so satisfied, we must consider the matters set out in s 30(1A) of the WWC Act before we can make an order setting aside the decision of the respondent to cancel the applicant's clearance.
2. We accept the applicant has been caring for children for a long time. The children she has been caring for have all been family members, primarily immediate family members. We also accept that the removal of child GNA and child GNB from the applicant's care was stressful for her, as was the cancellation of her authorisation. We also accept the applicant was upset about the allegations that were made against her youngest brother, child YBA. We also found the applicant to be a kind and caring person and a valued member of her community. However, these are not matters relevant to the primary issue we are required to determine, namely whether the applicant poses a real and appreciable risk to the safety of children today if her working with children check clearance were to be restored to her.
3. There is no evidence of the applicant having physically harmed the children in her care. We also accept the applicant did not at any time intend to place at risk the children in her care, or deliberately neglect them.
4. For the reasons set out above, however, we found the applicant's understanding of child protection issues in the situation she was in during 2012 to 2014 to be clouded by a strong loyalty to her immediate family and a general lack of understanding about issues concerning the protection of vulnerable children in care. Hence, her understanding of her role as a person authorised to provide out-of-home care for vulnerable children was lacking. We found this lack of understanding to be indicative of a lack of the protective qualities necessary for persons engaged in child-related work and hence she posed a risk to the safety of the children placed in her care. The question is whether she continues to pose a risk to the safety of children today if her clearance were restored to her. She says she does not pose a risk and Ms Hare, in her assessment of the applicant, has expressed a similar view.
5. After considering all relevant matters, we have found the applicant continues to pose that risk today. We have made that finding primarily because the applicant continues to hold the very strong views that she has always held and has failed demonstrate that she has reflected on her conduct in any way, especially in her dealings with child NA after her brother was charged. Hence, we are not persuaded that a similar situation, to that which applied in 2012 to 2014, would not re-occur if the applicant's clearance were to be restored to her. In these circumstances, we must find that the decision of the respondent to cancel the applicant's clearance is the correct and preferable decision and should be affirmed.
6. Our finding does not mean that with appropriate counselling and additional training, specifically directed to child protection issues for vulnerable children, the applicant is prevented from re-applying for a clearance at some time in the future if she is able to establish there are changed circumstances to her understanding and insight into child protection issues: see WWC Act, s 13A.
7. On the basis of our finding that the applicant poses a real and appreciable risk to the safety of children, it is unnecessary for us to consider the matters in s 30(1A) of the WWC Act.
8. Finally, we order: The decision of the respondent, made on 7 March 2016, to cancel the applicant's working with children check clearance is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2017