CJQ v Children's Guardian

Introduction

1. The applicant is known by the pseudonym "CJQ" in these proceedings in order to protect the identity of the applicant and the victim.
2. The applicant applied for a working with children check clearance on 18 May 2015. On 1 December 2015 a notification letter was sent by the Children's Guardian to the applicant informing him that his application was refused.
3. On 24 December 2015 CJQ filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 ("the Act") concerning a decision of the Children's Guardian, made on 1 December 2015, to refuse him a Working with Children check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.
4. The Act came into force on 15 June 2013. The parties conducted the hearing and made submissions on the basis that the amendments introduced into the Act in 2015 do not apply to this particular matter: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22.
5. The applicant was the subject of a risk assessment pursuant to sections 14, 15 (1) and clause 1 (1) (b) of Schedule 1 of the Act. Proceedings were commenced against the applicant alleging that he indecently and physically assaulted his stepdaughter between the ages of 12 and 18. The applicant was committed for trial but before the trial could commence, the charges were withdrawn and dismissed. The applicant was not convicted of the offences with which he was initially charged. An interim bar was imposed on 19 June 2015. On 10 August 2015 the applicant was sent a notice pursuant to section 19 of the Act informing him that the Children's Guardian proposed to refuse his application, and inviting him to submit further information if the applicant chose to so do. Pursuant to section 18 (2) of the Act the Children's Guardian is satisfied that the applicant poses a risk to the safety of children. The notice of refusal, as previously stated, was sent to the applicant on 1 December 2015.
6. The applicant wishes and requires to obtain a working with children check clearance in order to work as a driving instructor and also as a driver on a shuttle bus. A clearance would permit him to work in any child-related employment even if he did not work in the areas he specified.
7. The applicant is without a Working with Children Clearance now, preventing him from working in "child-related work": section 6(2)(l) and section 8 of the Act; clause 15 of the Child Protection (Working with Children) Regulation 2013.
8. This is an application pursuant to section 27 of the Act. The application for review was heard by the Tribunal on 3 May 2016.
9. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
10. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
11. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.
12. There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.
13. In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998. It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.
14. It is doubtful that the Tribunal may lawfully attach conditions which would be permitted by the legislation effectively for the grant of a conditional clearance for this and the additional reasons set out in this decision.
15. An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.
16. The Tribunal has been assisted by the parties' legal representatives and written submissions on behalf of both parties.

The evidence relied upon in the hearing

1. The applicant relied upon the following documentary material: 1. Application filed 24 December 2015 attaching the letter of refusal and reasons dated 1 December 2015 - Exhibit A1; 2. Statement of a referee who has known the applicant for five years filed 18 March 2016 -Exhibit A2; 3. Statement of a professional acquaintance and friend for whom the applicant worked for a period of five years and who has known the applicant for 26 years filed 18 March 2016-Exhibit A3; 4. Statement of the accountant for the applicant for a period of 10 years filed 18 March 2016-Exhibit A4; 5. Statement of the applicant's current wife filed 18 March 2016 - Exhibit A5; 6. Document containing the applicant's National Police Certificate dated 22 January 2016 filed 18 March 2016-Exhibit A6; 7. Bundle of documents produced by the District Court - Exhibit A7; 8. Letter produced by the Registrar of the Mental Health Review Tribunal dated 18 April 2016-Exhibit A8; 9. Applicant's Outline of Submissions dated 15 April 2016 - Exhibit A9; 10. Extract from the DPP Policy in relation to Prosecutions - Exhibit A10; 11. Copy of Consent Orders in the Family Court at Parramatta between the applicant and his former wife dated 9 June 1992 - Exhibit A11.
2. The respondent relied upon the following documentary material: 1. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 25 February 2016, comprising 256 pages - Exhibit R1; 2. Submissions for the respondent filed 7 April 2016 - Exhibit R2.
3. The applicant gave oral evidence and was cross-examined on 3 May 2016.
4. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons.
5. The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997."
6. The paragraph from the decision in BJB v NSW Office of the Children's Guardian (No 2) is a considered statement of the relevant principles to be applied in a review under section 27 of the Act, based upon High Court authority, and those principles shall be applied in this decision. Further binding support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]: "Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct."
7. The Supreme Court has recently approved the approach taken in relation to the onus issue: CJT v Office of the Children's Guardian [2016] NSWSC 738, per Fullerton J at [34].
8. The effect of the Act and the 'practical onus' which falls on a party notwithstanding the principles referred to in the previous paragraphs of these reasons is as the Act states in section 27(4): "An applicant must fully disclose to the Tribunal any matters relevant to the application."
9. The practical or forensic onus but not the legal onus is thus carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened." (Citations omitted)
10. The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.
11. The applicant states in his application that "the decision-maker did not have sufficient material to make the correct decision": Exhibit A1.

Legislative Provisions relevant to the decision

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

The Issue

1. As previously referred to, the primary issue before the Tribunal in this application is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
2. There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.
3. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].
4. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

Considerations and the Evidence

1. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than is section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language.
2. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections.
3. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.
4. Section 15 of the Act provides as follows: 15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. (4) In making an assessment, the Children's Guardian may consider the following: (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (j) any information given in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.
5. Section 30 of the Act provides as follows: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.
6. The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings reciting the required considerations under the Act.
7. Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act.

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

1. The applicant is not a disqualified person. The offences with which the applicant was charged are serious offences. The applicant was charged in 1998 with four counts of sexual intercourse without consent, five counts of carnal knowledge of a female by stepfather, and two counts of assault occasioning actual bodily harm. It was alleged that the applicant between 1984 and 1991 indecently and physically assaulted his stepdaughter when she was aged between 12 and 18. Alleged conduct included oral sex, vaginal penetration and anal penetration the whole range of which occurred on at least nine occasions described by the complainant, as well as physical assault by punching on two occasions.
2. The onus of proof in a criminal trial is "beyond reasonable doubt", whereas in a civil matter and for the purposes of this risk assessment the civil onus "on the balance of probabilities" is the relevant standard as referred to in section 140(2) of the Evidence Act: see BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]
3. The allegations which were the basis of the charges identify a serious breach of a trusting and fiduciary relationship. The applicant was committed to be tried in the District Court because the Local Court Magistrate considered that there was a reasonable prospect of conviction. The trial did not proceed and the charges were withdrawn by the DPP.
4. The purpose of the risk assessment is protective of children and not punitive of the applicant, as stated earlier. The offences, however, were sufficiently serious to properly cause the risk assessment.
5. It is alleged that the applicant was strict with his stepdaughter. The applicant would rarely allow his stepdaughter to see her relatives from her deceased father's side of the family. The stepdaughter remembers being punished by the applicant by being placed in a cold bath, being hit with a belt or hands, and forced by the applicant to hold a telephone book in each hand until her arms hurt. The stepdaughter also recalls seeing the applicant assault her mother in front of her and her brothers. In evidence before the Tribunal the applicant admitted to striking his stepdaughter, despite previously denying any assault.
6. The stepdaughter in her statement to the Police recalls the first incident of sexual abuse occurring at the time she was about 12 years of age when her stepfather and she were lying down on a lounge watching TV in the lounge room. The stepdaughter says that the applicant told her words to the effect: "I just want to do something." The applicant then pulled down her shorts and underpants and started licking her vagina putting his tongue inside her vagina for about 20 minutes to half an hour. The applicant asked her: "Do you like it?" And she responded: "I don't know." She said it did not excite her and she accepted it because she felt controlled by the applicant. She did not question what he was doing because he was in authority over her and she believed she had to do what he wanted. The mother was at work and the other younger children were upstairs asleep. The applicant denies this incident. When interviewed by the police the applicant declined to answer any questions concerning this allegation.
7. The applicant obtained a contract cleaning job, cleaning an office and factory nearby. The stepdaughter was approximately 13 years of age and in year seven at High School. Sometimes the applicant took his stepdaughter and her mother to help him clean, and sometimes he also took the younger children. When the applicant took his stepdaughter to the factory and office to clean without her mother and the other children, the stepdaughter alleges that the applicant regularly sexually abused her on a brown coloured wool textured couch. The stepdaughter alleges that the applicant abused her by inserting his penis inside her vagina and thrusted it into her. After these events happened the stepdaughter said that she was on the applicant's "good side" and he would be pleasant to her. The stepdaughter said that if she asked for something he would give it to her and the sexual abuse was his "reward". If the stepdaughter allowed him to have sex with her she was able to do what she asked between the ages of 13 and when she left home at the age of 18: Exhibit R1 pages 152-153. The applicant denies in cross-examination that this sexual abuse occurred.
8. The applicant is also alleged to have sexually abused his stepdaughter when she wanted to join an extracurricular activity which required parental consent. The stepdaughter alleges that the applicant said: "If you do the right thing, I'll convince your mother you can join." Her mother was at work and her younger siblings were asleep at the time. The sexual activity occurred in the lounge room on the lounge. The applicant sat on the lounge with his pants off and told his stepdaughter to sit crouched on top of him and facing him. The stepdaughter alleges that he moved her body up and down with his hands so his penis was moving inside her vagina. The stepdaughter says that she felt guilty about this and wanted to block out what was happening. She recalled that he pulled his penis out and he ejaculated over himself. The stepdaughter says that she was still not allowed "to join" despite the sexual abuse occurring.
9. The stepdaughter recalls at another time being permitted to go out but having a curfew of midnight imposed by the applicant. The traffic was bad on return and she ended up being 40 minutes late. The applicant was waiting for her at home yelling at her abusively and punched her in the face with a closed fist. She fell on the tiles and "wet her pants". The stepdaughter alleges she received a black eye and a chipped tooth which had to be repaired by the dentist. The stepdaughter told her girlfriend at school what had happened. The dentist recalls repairing the tooth but was not told how the injury occurred. The stepdaughter's school friend recalls her having a black eye after this event. The school friend also recalls the stepdaughter having a chipped tooth and when confronted about this the stepdaughter told her that the applicant hits her. In her statement to the police, the applicant's former wife also confirms that this event occurred and the stepdaughter suffered a chipped front tooth from the assault.
10. The stepdaughter also recalls an incident which occurred when she was about 15 or 16 years old when her mother was at work. This was the first time she alleges that sex occurred in her mother's and stepfather's bed. The stepdaughter describes the incident and says that the applicant was annoyed because she "was just lying there". The stepdaughter alleges that the applicant said words to the effect of: "If you want to ever keep a boyfriend, you can't stay still, you have to move your bum up and down." The applicant is then alleged to have said words to the effect: "Move your bum up and down." The stepdaughter says she then did. The stepdaughter alleges that she was terrified of the applicant and his control over her. The stepdaughter says that if she did not have sex with the applicant she knew there would be repercussions. If she permitted him to have sex with her he would not punish her as much and allow her to do 'normal' teenage things.
11. The stepdaughter alleges that the applicant applied a dermatitis cream to her anus when she was between 15 and 16 years of age in the bedroom. The applicant knelt behind her and inserted his penis into her anus. The stepdaughter alleges that this was painful but she did not scream and she remembers him ejaculating. The stepdaughter says that she did not stop him because she was afraid he would get angry and she wanted to receive things from him such as clothing.
12. The stepdaughter alleges that the applicant made a point of repeatedly saying she always got the best of everything. The applicant also told the Tribunal that the stepdaughter "was very well looked after."
13. The stepdaughter alleges that when she was approximately 16 years of age and her mother was at work the applicant told her to go up to the parents' bedroom and take her clothes off. The applicant told her to lie on her back on the floor between the walk-in mirrored wardrobes. The applicant took his clothes off including his underwear and laid on top of her spreading her legs. The applicant inserted his penis into her vagina and thrusted it inside her. The applicant made groaning noises. The stepdaughter believes that he ejaculated and she got up quickly and dressed herself, walking out of the room as if nothing happened. The stepdaughter recalls this incident because it was the first time that it occurred in front of the mirrors. The stepdaughter alleges that sexual abuse occurred frequently in this way until she left home at 18 years of age.
14. The stepdaughter alleges that the applicant encouraged her to learn to drive a manual car. The stepdaughter alleges that he took her in her mother's white car for driving lessons so that she would share that car with her mother. The applicant took her to a quiet street or into new estates where there were no people. The stepdaughter alleges that the applicant drove her to an area where there was cleared land all around them. The applicant told her to wind down the front passenger seat so that it was horizontal and on this occasion he had penile vaginal intercourse which was over in a few minutes. The applicant then continued to teach her how to drive.
15. When the stepdaughter was approximately 17 years of age she remembers her mother leaving the house to go somewhere. The applicant approached her for sex and she refused. The applicant told her words to the effect: "Just do what you're told." The stepdaughter said she was frightened so she followed him into the bedroom and took off her pants and underwear as he requested. Before any intercourse occurred the stepdaughter heard a door closing, and thinking it was her mother returning, both of them jumped up off the floor. The applicant left the room and later came back. The stepdaughter said: "Mum knows, Mum knows, we can't do it." The applicant ignored the stepdaughter and penile vaginal sexual intercourse occurred. If the stepdaughter's allegations are believed, the applicant engaged in sexual intercourse without her consent on this occasion.
16. The stepdaughter later, with the assistance of her mother enrolled in a vocational course in her final year at high school, of which the applicant had specifically not approved. When the applicant found out because a letter was sent to the home he was angry. The stepdaughter was at school and she says she received a telephone call from the applicant abusing and threatening her with words to the effect: "You wait until you get home," and words to the effect, "how dare you disobey me. I got the letter from [the course college] you're not going there especially because of this." When the stepdaughter arrived at home the applicant struck her with a closed fist in her face and she fell to the tiled kitchen floor. The stepdaughter's mother was crying. The applicant said: "If you live under this roof, you have to live by my rules and if not, you leave. So if you are here by the time I get back …, you're going to do exactly what I say." The stepdaughter considered her options and decided to leave the home and went to stay with her paternal grandmother then her maternal aunt. The stepdaughter's school friend confirms in her statement to police, that after she and the stepdaughter enrolled in the vocational course, the stepdaughter had to leave home. Both the grandmother and the aunt also provided statements to the police which are supportive of the stepdaughter's account.
17. The applicant agreed in evidence before the Tribunal that he did 'slap' the stepdaughter on the last mentioned occasion because both the stepdaughter and his wife "lied" to him about the course. The applicant has previously denied the assault. The applicant did state in a telephone conversation recorded in a file note by the Children's Guardian that he "once slapped the alleged victim across the face for running away from home, but that was it. The applicant reiterated the allegations against him were malicious."
18. The stepdaughter described to the police some distinctive features of the applicant including some scarring on the cheeks of his bottom. The applicant has not responded to this evidence.
19. The solicitors who acted for the applicant in the criminal proceedings wrote a letter to the Director of Public Prosecutions (DPP) inviting the DPP to enter a nolle prosequi in the matter. The basis of that request was articulated eloquently by the solicitors which is summarised from their letter as follows: 1. precise particulars of each of the alleged offences have not been given in the brief of evidence, with the exception of the allegations of physical assault; 2. the complainant would have to give evidence twice since the applicant would be entitled to a full Basha enquiry and the complainant may be reluctant to proceed in that circumstance; 3. there is no admissible evidence of complaint made by the stepdaughter to any of the close relatives until much later (7 years later) than the time at which the stepdaughter left home; 4. the stepdaughter was a poor witness at the committal and it was the contention that she was an unreliable witness; 5. any jury considering the background of the allegations would have to consider a long history of animosity on the part of the mother's family towards the applicant and elements of "spite and revenge"; 6. the issue of consent is such that the evidence appears to be that the applicant did not know that the complainant was not consenting, and after she had turned 16 the stepdaughter consented and specifically stated that she did not cry although she says the sexual intercourse was in return for benefits to herself. A jury, it was contended, would have difficulty accepting her as a nonconsenting participant in light of those statements; 7. there is no corroborating evidence [of the sexual assaults] from the siblings, the mother or anyone who visited the house.
20. The decision not to proceed with the charges appears to be based at least upon some if not all of these considerations. The applicant relied upon the DPP policy document which identifies the factors which are considered when the DPP decides not to proceed with a prosecution: Exhibit A10. The applicant submits that he does not pose a risk to children and points to the fact that these allegations are old and were not pursued by the DPP despite the seriousness of the allegations.
21. The civil standard of proof which is applied in these proceedings is different to the criminal standard of proof which applies in criminal proceedings, and the rules of evidence do not apply to an assessment of risk under the Act. The reliance by the applicant on the fact of the criminal proceedings being terminated is not an answer to whether the allegations are established on the balance of probabilities.
22. During the course of the committal the applicant's counsel cross-examined the applicant's stepdaughter about the incidents of sexual intercourse at the factory and office, and the first incident of oral intercourse. The cross examination was referred to by counsel for the Children's Guardian in submissions and was the subject of cross-examination of the applicant. The following questions and answers are extracted from the transcript, Exhibit R1 pages 90-91: Q. But you didn't know if he-if you objected that he'd hit you, you didn't know that did you? A. No but I've always had fear of him. Q. And you said nothing to him at all to indicate that you were objecting, that's right isn't it? A. Yes. Q. And you said-and you didn't do anything to indicate that you weren't objecting, that's also correct isn't it? A. Yes.
23. This cross examination then established that the stepdaughter was frightened of punishment by the applicant, but there was never a sexual connotation to the discipline. From these questions and answers the stepdaughter did not make it known to the applicant that she was either objecting or not consenting to the conduct which he was engaging in with the stepdaughter when she was under the age of 16 years. The submission to the DPP on behalf of the applicant refers to the issue of consent to the effect that the applicant did not know that the complainant was not consenting, and after she had turned 16 the victim consented and specifically stated that she did not cry or object, although she says the sexual intercourse was in return for benefits to herself. Thus it was submitted to the DPP that a jury would have difficulty accepting the victim as a nonconsenting participant in light of those statements. A child under the age of 16 years, of course, is not capable of consenting to sexual intercourse whether she says or does anything to convey her consent, or does not. The applicant, as far as the Tribunal is aware, did not require the stepdaughter for further cross-examination in the Tribunal proceedings.
24. There is no evidence from the applicant which would weigh against many of the allegations. The failure of the applicant to provide further detailed denial or explanation means that the allegations and hearsay evidence may be accorded greater weight than is deserved. The hearsay evidence is admissible because the rules of evidence do not apply. It will be taken into account particularly because the transcript of the evidence of the victim at the committal corroborates the allegations. The oral evidence of the applicant in the Tribunal also partly corroborates the evidence of the victim.
25. The statement provided by the applicant to the Children's Guardian was considered inadequate to address the risks to children. That evidence is simply a bare denial of the alleged offences. The applicant did not go into further detail. The applicant attributes animus on the part of the victim's mother's family towards the applicant and elements of "spite and revenge" to explain the allegations.
26. The applicant has been represented by a solicitor and counsel for the section 27 review in the Tribunal. The applicant did not provide any further statement or affidavit in response to the specific allegations contained in the documentary statements and transcript of the evidence in the committal. The applicant answered questions in cross-examination before the Tribunal and denied specific allegations, but admitted that he did 'slap' the victim when she "lied" to him about the vocational course. The evidence given by the applicant prior to this admission was that he never assaulted anybody. The evidence about the physical assault including the statements by the former wife of the applicant and school friends of the stepdaughter, on the balance of probabilities, is able to be comfortably accepted.
27. Although the consequences of making a finding in this matter that the allegations made by the stepdaughter are established on the balance of probabilities are serious and will affect the applicant adversely, a finding should be made if the evidence satisfies the standard of proof.
28. On the balance of probabilities and taking into account all the evidence about the alleged sexual abuse, including the cross-examination of the stepdaughter in the committal and the applicant's denials in the Tribunal, the Tribunal finds that the applicant sexually abused the stepdaughter.

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

1. The time since the last of the alleged offences occurred is in 1991, that is, 25 years ago.
2. The applicant has not been the subject of any additional criminal or complaints of a sexual nature.
3. The applicant has formed a relationship with his new wife.
4. The applicant has worked primarily as a driver. The applicant has also worked as a cleaner. The applicant has also owned his own business.

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

1. The applicant was aged 30 at the time of the first alleged offence and 37 years old at the time of the last alleged offence.
2. The applicant has a supportive relationship with his current spouse. The applicant has provided supportive references from people he has known for lengthy periods of time.

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

1. The victim was aged between 12 and 18 years of age. The victim was vulnerable due to her age and the fact that the applicant was her stepfather in a position of trust and authority.
2. The victim alleged that she felt frightened of the applicant and complied with his requests in fear of his reactions and in order to gain favours from him.

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

1. There was approximately 18 years difference in age between the applicant and victim.
2. The victim was the applicant's stepdaughter. It was stated by the applicant's stepdaughter that the applicant always made a point to tell her that she always got the best of everything, and that he wanted her to be grateful for the things which would generally be considered by others to be necessities. In his evidence to the Tribunal the applicant confirmed that he thought the stepdaughter was very well looked after. In evidence to the Tribunal the applicant, however, admitted that he did "slap" his stepdaughter.

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

1. The victim was a child and the applicant knew that she was a child. The victim was the stepdaughter of the applicant.

The person's present age

1. The applicant is currently aged 62 years.

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

1. The applicant has no criminal history.

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

1. The respondent submits that the applicant is a real and appreciable risk to the safety of children.
2. The Tribunal has to form its own opinion about the likelihood or risk of recurrence of the conduct of the applicant having appropriate regard to any expert opinion. The Tribunal is also required to consider all of the factors set out in section 30 of the Act in determining the risk. An indicator of future behaviour is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves in the future.
3. The applicant has not provided any risk assessment conducted by a psychologist or psychiatrist. The applicant simply says that he did not sexually abuse his stepdaughter. The applicant admits a physical assault upon stepdaughter but minimises the extent of that assault by saying it was just a "slap" and was justified because both his former wife and the stepdaughter lied to him. It is not clear what the lie actually was that the applicant was referring to and it appears that the wife and stepdaughter merely applied for a vocational course for the stepdaughter without the applicant's consent.
4. The respondent submits that if the sexual abuse of the applicant stepdaughter actually occurred, then clearly the applicant poses a risk to children. There are many witnesses who gave statements to the police concerning the disclosures by the stepdaughter and their reactions to those disclosures.
5. On the balance of probabilities, and taking into account the gravity of the allegations of sexual misconduct, the Tribunal finds that the evidence before the Tribunal means that it is comfortably satisfied that the evidence is sufficient to make a finding that the applicant has engaged in instances of sexual intercourse with the victim when she was a vulnerable child.
6. The impact on any children of a repetition of the applicant's sexual abuse or physical assaults either directly, or as witnesses to that behaviour, is highly likely to be abusive.
7. There are no reports of the applicant having engaged in behaviour of the same kind since the allegations were made by his stepdaughter.

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

1. The applicant has provided information including a number of references from his current wife, accountant, former employers and friends.
2. The applicant did not provide a sworn statement or affidavit in support of this review identifying or reciting any specific denials of the allegations made against him by the stepdaughter.
3. The Children's Guardian has not submitted that the applicant has otherwise failed to provide relevant information.
4. The applicant is according to the references provided a person of good character and repute, about whom his current wife does not complain that he has ever been violent towards her, and he has behaved honourably and honestly with all the people who have provided references.

Any other matters that the Children's Guardian considers necessary

1. The Children's Guardian made submissions addressing those matters which the Children's Guardian considers necessary.
2. The Children's Guardian submits that the applicant should not be granted a working with children check clearance and the previously made decision should be affirmed.
3. The respondent submits that a real and appreciable risk to the safety of children is present.

Consideration

1. The allegations which triggered this assessment are serious matters.
2. On the balance of probabilities, and taking into account the gravity of the allegations of sexual misconduct, the Tribunal finds that the evidence before the Tribunal is sufficient to make a finding that the applicant has engaged in instances of aggravated sexual and physical assault with the victim when she was a vulnerable child.
3. The impact on any children of a repetition of the applicant's behaviour, as previously indicated, is highly likely to be abusive.
4. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

Conclusion

1. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
2. Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
3. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes on the balance of probabilities that there is a real and appreciable risk of harm to children posed by the applicant.
4. The evidence received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.
5. If the Tribunal is in error in concluding that there is a real and appreciable risk of harm to children, it is concluded on the balance of probabilities that having regard to the circumstances surrounding the conduct by the applicant and the findings that have been made, means that the existence of a real and appreciable risk to children has not been disproven.
6. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance. The decision of the Children's Guardian should therefore be affirmed.

Orders

1. The order of the Tribunal is that: 1. The decision of the Children's Guardian dated 1 December 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 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: 22 July 2016