CKY v Children's Guardian

NCAT Administrative and Equal Opportunity|2016-07-11

Introduction

The applicant, CKY, seeks administrative review of a decision of the respondent, the Children's Guardian, to refuse his application for a working with children check clearance (clearance): see Child Protection (Working with Children) Act 2012 (WWC Act) (NSW), s 27(1). The respondent refused the applicant's application for a clearance as she was satisfied, after conducting a "risk assessment", in accordance with ss 14 and 15 of the WWC Act, that he poses a risk to the safety of children: see WWC Act, s 18(2). The "trigger" event that required the respondent to conduct a risk assessment were a number of charges laid against the applicant in regard to an alleged sexual assault and an alleged assault occasioning actual bodily harm that involved a child. The applicant was found not guilty of the charges in 2007.
The applicant's application for review was heard on 11 July 2016. At the conclusion of the hearing we reserved our decision.
Given the sensitive nature of proceedings such as these, when the applicant's application first came before the Tribunal, at a directions hearing, by consent, the Tribunal made an order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), that the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal. Hence the pseudonym CKY is used. In this decision we refer to CKY as the applicant.
For the reasons that follow, we have decided, the correct and preferable decision is to refuse the applicant's application for a clearance as we are satisfied, on the material before us and the applicable law, that the applicant today poses a real and appreciable risk to the safety of children: see Administrative Decisions Review Act 1997 (NSW), s 63(3) and WWC Act s 18(2).

Background

The applicant made his application for a working with children check clearance on 16 December 2014. He made his application to the respondent as his employer required him to have a clearance. As there was a matter specified in Sch 1 of the WWC Act that applied to the applicant, the respondent was required to undertake a "risk assessment" in respect of his application: WWC Act ss 14 and 15.
The matters specified in Sch 1 that applied to the applicant were the 2006 charges laid against the applicant for an offence of sexual intercourse with a person under the age of 10 years (Crimes Act 1900, s 66A) and the offence of assault occasioning actual bodily harm (Crimes Act, s 59(1)) (see WWC Act, Sch 1, cl 1(1)(b) and Sch. 2, cl 1(1)(c) and 1(1)(h)). The applicant was also charged with an offence of common assault (Crimes Act, s 61), which is not an offence specified in Sch 2.
The offences of which the applicant was charged were alleged to have occurred in 2000. The victim of the alleged offences was the then eight year old daughter (child A) of the applicant's fiance.
The charges were laid following an investigated by the Joint Investigation Response Team (JIRT) of the then Department of Community Services (DOCS). That investigation occurred after child A had made a disclosure of the alleged offence to her friend in late 2005. Her friend, told her mother, who in turn told child A's mother. On being told of the alleged offending child A's mother reported the alleged offending to police.
The applicant has at all times denied the charges. He asserts he is a victim of a vexatious campaign by child A's mother.
The applicant was committed to stand trial on the charges in February 2007. On 8 June 2007, the NSW District Court made a "not guilty by direction" order on each charge.
On 6 January 2016, having considered the applicant's criminal history, the material provided by the applicant and the information provided by the NSW Family and Community Services (formerly DOCS), the respondent determined she was satisfied the applicant poses a risk to the safety of children. On the basis of being so satisfied the respondent was required to refuse the applicant's application for a clearance: see WWC Act, s 18(2). On the same day the respondent gave the applicant written notice of her decision and reasons for decision.
The applicant received notice of that decision on 7 January 2016 and his application for review is dated 3 February 2016, but stamped as having been lodged on 9 February 2016. Neither party has raised an issue as to whether the applicant's application was lodged within the time prescribed in s 27(1) of the WWC Act (i.e. within 28 days of being notified of the decision). As the matter was heard without objection, for abundant caution, pursuant to s 41 of the Civil and Administrative Tribunal Act 2013, we make an order extending time within which the applicant is to lodge his application to 9 February 2016.

The WWC legislative scheme

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."
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.
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.
Subsection 8(1) of the 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. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.
Subsection 9(1) contains a similar prohibition on an employer, 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.
Sections 6 and 7 define what is meant by "child-related work." It is broadly defined in these sections and includes work that involves direct contact (i.e. physical contact or face to face contact) by the worker with children in specified child-related work and child-related roles. It is not for the Tribunal to determine whether the work for which the applicant seeks to obtain a clearance is child-related work. However, a clearance, once granted is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].
A "worker" is defined in s 5(1) of the WWC Act to mean: " … any person who is engaged in work in any of the following capacities: (a) as an employee, (b) as a self-employed person or as a contractor or subcontractor, (c) as a volunteer, (d) as a person undertaking practical training as part of an educational or vocational course (other than as a school student undertaking work experience),"
Section 18 prescribes how the respondent is to determine an application for a clearance. Subsection 18(1) deals with applicants for a clearance who are "disqualified persons." The subsection 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 has been charged with such an offence and the proceedings in regard thereto are pending. Where a person falls within this description, subs 18(1) provides the respondent must refuse that persons' application for a clearance. Such persons are presumed to pose a risk to the safety of children: see WWC Act, s 28(7).
The applicant in these proceedings is not a "disqualified person." However, because of his 2006 charges he was subject to an "assessment requirement": see WWC Act, s 14 and Sch 1 cl 1(1)(b) and s 15. Section 15(4) sets out the matters the respondent may have regard to in conducting that assessment.
In regard to persons who are not "disqualified persons", but are subject to a "risk assessment requirement", subs 18(2) of the WWC Act provides that the respondent must grant a clearance to such a person unless she is satisfied, following a risk assessment, the person poses a "risk to the safety of children".
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."
A person who has had his/her application for a clearance refused by the respondent under subs 18(2), has a right to seek external review of that decision by the Tribunal under s 27(1) of the WWC Act. Subsection 27(4), provides that in review proceedings an applicant must fully disclose to the Tribunal any matters relevant to his/her application.
Section 30(1) of the WWC Act sets out the factors the Tribunal must consider in determining an application for external review. That section was amended in November 2015, by the insertion of an additional cl 18(1A): see Child Protection Legislation Amendment Act 2015 (NSW), Sch 2, cl 31. The amendment does not apply to this application: see Child Protection Legislation Amendment Act 2015 (NSW), Sch 2, cl 46 savings provision cl 16.
Section 30(1) provides: 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.
The above matters are similar to those the respondent may have regard to, when undertaking a risk assessment under s 15 of the WWC Act.
The Tribunal cannot make an order granting a clearance that is subject to conditions. A clearance, once granted is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].

Evidence before the Tribunal

In support of his application the applicant relied on a bundle of documents filed by him on 18 May 2016, which included, a copy of the indictment presented by the prosecution at the commencement of his trial, a copy of a 2000 year calendar, a copy of a statement made by child A's mother dated 5 March 2007; a copy of documents produced by the Department of Tourism, Sport and Recreation concerning child A's attendance at a holiday camp between 15 and 20 May 2000, a copy of the applicant's bank statement for January to May 2000 and a copy of the telephone records of a specified mobile telephone for March 2000.
The respondent relied on: 1. a bundle of documents obtained in the course of the s 15 risk assessment and relied on in determining to refuse the applicant's clearance: Administrative Decisions Review Act 1997, s 58. Included in this bundle were a copy of the respondent's risk assessment report and response to requests for information under s 31 of the WWC Act. The responses included a copy of the 2005 interview with child A and her friend, the transcript of the Local Court Committal hearing and responses from the applicant's former employers; 2. a further bundle of documents received in response to s 31 requests and documents produced pursuant to summonses issued by the Tribunal at the request of the applicant; and 3. a s 31 response from a recent employer of the applicant.
The applicant gave oral evidence at the hearing and he was cross-examined by counsel for the respondent. During his oral evidence the applicant also tendered into evidence a chronology of his employment, three undated handwritten letters addressed to him from a child the applicant said to have been child A and a Wonderland Sydney photo folder with a photocopy of a photo inside.
Both parties also provided detailed written submissions, which we have dealt with below.

Issues for determination

The primary issue for us to determine in these proceedings is whether, on the material before us, we can be satisfied the applicant poses a real and appreciable risk to the safety of children.
The applicant contends he is not a risk to children. He acknowledges he has a criminal history, which he says is minimal. He points out he was not convicted, or found guilty of the 2006 charges. The applicant asserts the charges were baseless in that the alleged conduct could not have occurred on the dates provided by the mother. He points to having been granted a clearance under the Victorian legislative scheme and the fact he has a long work history where no complaints were made against him.
The respondent contends that on the basis of the material before us and the applicable law, we can be satisfied the applicant poses a real and appreciable risk to the safety of children.

Consideration

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 disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.
The term "safety to children" is not defined in the WWC Act, but includes the sexual and physical safety of children, and also their safety from conduct that is likely to cause psychological or emotional harm: see BVM v Children's Guardian [2016] NSWCATAD 65 at [9] - [15] and [67] and BFX v Children's Guardian [2014] NSWCATAD 115 at [19] to [30].
The approach to be taken in assessing risk to the safety of children where the applicant has no conviction or finding of guilt in regard to an allegation(s) of conduct that would fall within Sch 1 or 2 of the WWC Act, has been considered by the NSW Supreme Court in CFJ v Office of the Children's Guardian [2016] NSWSC 1625 at [68] and [69]; Office of the Children's Guardian v CFW [2016] NSWSC 1406 at [14] and BKE (supra) at [30].
In BKE (supra) at [30], his Honour Justice Beech-Jones said, when considering risk, significant guidance can be derived from the High Court's decision in M v M [1988] HCA 68; (1988) 166 CLR 69. At [33] his Honour said: "... [it] may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
In CFW, at [14], his Honour Justice Harrison explained that in determining risk the Tribunal first had to consider "whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether it had "no hesitation in rejecting the allegation as groundless". His Honour went on to explain, at [15], even if no "positive finding" can be made, "[the] court or tribunal is still obliged to consider the question of risk that may be indicated by all the facts, unless it is determined that the allegation is "groundless". At [16] and [17] his Honour said: "16 Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]. 17 A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. …"
In considering whether a positive finding can be made as to an alleged act of wrongdoing where there is no conviction for doing so, the Tribunal is to apply the civil standard of proof, on the balance of probabilities: see CFW at [14] to [17], BKE (supra) at [33]; BSR (supra) at [18]; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 at [15] per Dean J. As the Tribunal is not bound by the rules of evidence (NCAT Act, s 38(2)), it has also been held that the task of a tribunal in making a positive finding of this kind is to act fairly, on the basis of relevant and probative evidence and seek "a comfortable level of satisfaction … commensurate with gravity of the charge": see CFJ (supra) at [66].

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

If true, the offences with which the applicant was charged in 2006 are very serious. As we have already noted, the applicant has at all times denied the alleged offending. It was his evidence the allegations were false and part of a sustained attack on him by child A's mother. The applicant goes so far as to assert that it was not he, but the child's mother who sexually assaulted her. He said he believed the mother was a habitual liar and a professional victim.
The respondent contended that there was sufficient material before us to make a finding the offending, as alleged in the charges, had occurred.
In our opinion, having regard to the material before us and the gravity of the offences the subject of the charges, it is not possible to make a positive finding that it is more probable than not that the alleged conduct, the subject of the charges, did occur. At the same time, we do not accept the applicant's contention that the allegations are completely groundless.
The evidence before the Local Court and the District Court was that in the latter half of 2005, when she was 14 years of age, child A told her friend that, on the day her mother's "ex-boyfriend" (i.e. the applicant) had "kidnapped her", he also "raped" her. In her interview with the JIRT police officer, the friend said child A told her not to tell anyone because "if she told anyone" the applicant "would kill her."
It was this disclosure that ultimately gave rise to the charges being laid against the applicant, because child A's friend told her mother who then told child A's mother.
In her 2005 record of interview with the JIRT police officer, child A gave an explanation of what she alleged to have occurred on the day in question. She said she was about eight years of age when the applicant collected her from her babysitter's home and took her to his home. She did not give a specific day or month when this occurred, but she did recollect it having occurred before her trip to America, which was in early September 2000. Child A also told the interviewing police officer that she did not see the applicant again after that day.
Child A told the interviewing police officer how she had been "raped' by the applicant that day. She also said the applicant had grabbed her by the shoulders with his two hands and threw her against the wall and pulled her hair and punched her cheek when she asked to go home. She said the applicant returned her home the following morning after he had spoken to her mother. Child A also explained she had not told her mother what happened because she was scared the applicant would do it again.
Even though child A did not specify a particular day or month when the alleged offending had occurred, the charges laid against the applicant in 2006 asserted that the offending conduct had occurred between "12:01am and 11:59pm" on a specified day (day X) in March 2000. The specified day was two days after child A's mother had allegedly ended her relationship with the applicant. In his evidence, the applicant conceded that child A's mother ended their relationship on that day (i.e. 2 days prior to day X) and that he moved out of the home on that day. The applicant said he went "couch surfing", because he did not have anywhere else to go.
The date of the alleged offending was obtained from a note child A's mother had made in her diary on day X in March 2000. In her note the mother said the applicant collected her daughter from the babysitter that day without her knowledge or permission. The mother noted she had not told the babysitter that she and the applicant had split up and that she had rung the police who told her to ring the applicant and if he did not bring the child back within half an hour to call them again. In her note, the mother said she rang the applicant who said he wanted to cook dinner for child A and spend time with her because he missed her. The mother noted that after she screamed at the applicant over the phone, he brought her daughter back and dropped her around the corner from her home. She noted that on her return, child A was crying and was terrified and said the applicant had hurt her - "he slapped her & locked her in a room" and "told her that she would never see me & [child A's brother] again & would get her if she told." The mother ended the note by recording a date which was the same day, but the following month (day X in April) of 2000.
At the February 2007 committal hearing, the statements the mother had made to police in September, October and December 2005 were admitted into evidence, without any objection from the applicant's solicitor. Also admitted into evidence was the mother's diary note.
The mother was cross-examined by the applicant's solicitor at the committal hearing. She was only asked a few questions in regard to the time the applicant returned her daughter, the day on which the alleged event occurred and whether the applicant came to her home after she had ended their relationship. In response to these questions, the mother said the applicant returned her daughter "about 6.30pm" and she confirmed this occurred on day X in March 2000. The mother also agreed there were occasions after this day that the applicant came to her home to pick up some of his belongings and letters. She said the applicant "continued to come back to the house until the point where I had to get the police involved." There is no dispute that in May 2001, the mother obtained an apprehended violence order (AVO) that prohibited the applicant from harassing or communicating with her.
The applicant also gave oral evidence at the committal hearing. The essence of his evidence was that on the specified day of the alleged offending he was away in Queensland and did not return until three days later. In support of his evidence the applicant tendered into evidence his bank records for that period and his employer's telephone and petrol card records of the telephone his employer had allocated to him and the petrol card he used during this period. The records showed that during the days in question calls had been made, petrol had been purchased and money was withdrawn from locations in northern NSW and Queensland. These records we note were not provided to police prior to the committal hearing.
As we have noted previously, the Local Court Magistrate committed the applicant to stand trial, on all charges, in the District Court.
In March 2007, following the committal hearing, the mother of child A made a further statement to police in regard to her March 2000 diary entry. She said she could not recollect whether she wrote the entry on the wrong date, or whether the date recorded at the end of the entry was incorrect. What she did remember was that she wrote the entry on the night her daughter was collected and taken by the applicant.
The indictment presented by the prosecution at the commencement of his trial, before a Judge alone, alleged the offences occurred between 1 March 2000 and 30 April 2000. On 8 June 2007, the Trial Judge directed the applicant be discharged from the Court. The Court record, signed by the trial Judge, contains the following Ruling in regard to the offences concerning child A: "I direct that there is insufficient evidence to convict on any of the three charges listed on the indictment. I find the Accused Not Guilty and he is acquitted on all three charges. …"
On the material provided by the District Court, it is unclear when the applicant's trial commenced, whether it was on that day (i.e. 8 June 2007), or prior thereto as a copy of the transcript was not provided. The respondent had requested a copy from the District Court, but was advised the transcript was no longer available.
In the statement the applicant submitted to the respondent during the course of the risk assessment, he said child A had given evidence at his trial on 6 June 2007. He said child A was asked about her attendance at the Sport and Recreation camp in April 2000 and her pets, the dog and cat. He said child A had been asked these questions because she had written to him while she was at camp. He said the letter in which her pets were mentioned was tendered into evidence at his trial. The letter we understand to be one of the letters the applicant tendered into evidence in these proceedings.
The applicant also explained that after child A's mother changed her evidence about the date on which she made her note in her diary, his legal team requested a subpoena be issued to the NSW Department of Sport and Recreation (the Department) seeking production of documents relating to child A's attendance at a school holiday camp during the April 2000. The documents produced in response to the subpoena recorded child A having attended a school holiday camp on day X, in April 2000. We understand the documents produced by the Department were those the applicant provided in his bundle of documents in these proceedings (see at [29] above).
In his statement to the respondent the applicant said that during her evidence at "trial", child A's mother said: 1. the date at the end of her note in her diary was incorrect and the alleged events definitely occurred on day X in March of that year; and 2. that after day X in March 2000, he had no further contact with her children;
The applicant said his "evidence" at "trial" was that he was interstate on day X in March 2000 and that he did have contact with the children after that day. His evidence was that in early to mid-April 2000, with the mother's consent, he had taken child A and her brother, child B, to Wonderland and at the invitation of the mother he also attended the birthday celebration of child B, in late April that year.
The applicant also said he relied on the statement police obtained from a neighbour of the mother. That statement, he pointed out had not been obtained by police prior to his trial. We note the statement of the neighbour is dated 8 June 2007, which is the day of the applicant's trial. In his statement, the neighbour said that, a week before day X in March 2000, the applicant and child B had travelled interstate with him. He said they were helping him to move interstate. The neighbour said the applicant and child B returned three days later and that shortly after this he received a call from the applicant to say that there had been a falling out between the applicant and the mother of child A and child B. He said that on day X in March 2000, the applicant returned to visit him interstate. The neighbour went on to say he and the applicant had their heads shaven that evening at a pub where he was living.
In these proceedings, the applicant relied on the Wonderland photo folder he tendered into evidence. The folder contains a photocopy of a photo which shows the applicant's head is shaven. The folder and the photocopy photo are not dated. Nor are the children in that photograph identified. The same applies to the handwritten letters the applicant tendered into evidence in these proceedings. Nevertheless, we accept the applicant's evidence that he had ongoing contact with child A and child B after March 2000 as he was hopeful he and the mother could get back together again.
However, we also note from the applicant's own evidence, he moved interstate some time thereafter and worked and lived interstate for four years. According to the employment history the applicant tendered into evidence in these proceedings he left New South Wales in 2000 and did not return until 2004. From other material obtained by the respondent in the course of her enquiries it would appear the applicant secured a position interstate in November 2000 and in July 2004 he was offered a new position, which he accepted and held until 2007. The new position was with a new employer within New South Wales.
In his statement to the respondent, the applicant said the mother had given evidence at his "trial" that her daughter was "extremely upset and she had to sit on the bed with her daughter until the early hours in the morning to comfort and console her." He said the trial Judge asked the mother whether she took child A to seek medical treatment to which she responded "NO." In his statement to the respondent the applicant went on to describe his weight and height at the time and asserted that had he committed the offence, as alleged, there would have been severe damage to the child's vaginal region. He said when asked by the trial Judge, why she had not taken child A for medical treatment, the mother said there were no injuries.
The police COPS record of what occurred on 8 June 2007 is in the following terms: "On the 8th June 2007 this matter went to trial before Judge [name] at [name] District Court. Pathway through the crown case it was established the witness, [child A's mother], evidence had changed and the date supplied on the indictment could not be altered. This created an "alibi" for the accused on the date alleged by the prosecution that the assault had occurred and the case was determined by the crown conceding the point. The victim was informed of the result and was upset. All support services were offered to the victim and her family. Case closed."
Although the charges were found not to have been proven to the requisite criminal standard (beyond reasonable doubt) we are not persuaded they were based on a fabrication and part of a sustained attack on the applicant by the mother. First, there is no evidence of child A having been influenced by her mother. On the contrary, the evidence is that child A did not make any disclosure of the alleged offending for more than five years after the applicant and her mother had separated and when she did make the disclosure it was to her friend and not her mother. Understandably, once the mother became aware of the disclosure she took steps to report the alleged offending to police. Had the mother influenced child A, one would have expected the allegations to have been made much earlier following her separation from the applicant in 2000 and 2001. This is especially so when the applicant was continuing to contact the mother, which she found distressing and ultimately obtained an Apprehended Violence Order (AVO) against the applicant in 2001.
In her evidence child A did not specify a particular date on which the alleged events occurred. It was her evidence that the alleged events occurred sometime after the applicant and her mother separated and before she went to America. That is, sometime between March and August 2000.
In his oral evidence in these proceedings, the applicant acknowledged he had assumed a parenting role over child A and child B while he was living with their mother. He acknowledged he had taken both children to school and collected them from the babysitter a number of times. He also acknowledged he sometimes only picked up child A from the babysitter. In her statement to police, the babysitter gave evidence in support of the mother's evidence that the applicant had collected child A from her home sometime after he and the mother had separated. It was her evidence that she was unaware of their separation until the mother came to pick up child A later that day. The babysitter said that this was the last time she saw the applicant and that she recollected only child A having been with her on that day.
The babysitter did not specify which day the applicant had come to collect child A. Her evidence was that she minded child A and her brother every day up until the end of 1999. She ceased minding the children every day after this because she had obtained new employment, but remained in contact with the family after that time.
In regard to his separation from the mother, the applicant's evidence was that three days prior to the mother ending their relationship, he had confronted her about suspicions he had that she was having a relationship with her boss and this was the reason the relationship ended. In her September 2005 statement to police, the mother gave a different account as to why she ended the relationship. She said the applicant had been physically violent towards her during their relationship and the "final straw" was when she came home in March 2000 and caught the applicant with his hands around her son's neck. She said she told the applicant to leave her house, which he did. She said she spoke to the children about the applicant and they decided he would not come back and live with them. She said that three to four days later the applicant came back - he was crying and said he was sorry - he begged to be allowed to stay until he made other arrangements so she let him in. She said she felt sorry for him because it was his birthday that week. She said that when he came home on the day of his birthday, which was two days before day X in March of that year, he wanted to celebrate as if nothing had happened. She said she had enough and again told him to leave. The applicant does not dispute he was asked to leave on the day in question and that he did leave that day, which was the day of his birthday.
Finally, in regard to the applicant's October 2014 application for an AVO against the mother of child A and child B, it appears to have been sought in order to support of his Federal Circuit Court proceedings in which he was seeking custody of his daughter, child C, born in 2010, from a subsequent relationship of the applicant. We have discussed this relationship in more detail below.
Hence, for the reasons set out above, we are not satisfied, as contended by the applicant that the allegations made by child A are a fabrication as contended by the applicant. However, we do find, having regard to the circumstances surrounding the disclosure of the allegations by child A and the applicant's failure to satisfactorily explain the circumstances surrounding his separation from mother we find there remains a lingering doubt or suspicion about the applicant's conduct at that time. Hence, we find the allegations were such to give rise to a real and appreciable risk of harm to children. In this regard we note the 2005 JIRT investigation into the allegations of child A found a risk of harm to have been sustained.

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

The charges relating to the abovementioned offences occurred some 16-17 years ago.

At the time of the alleged offending, the applicant was 34 years of age.

(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

Child A was between 8 and 9 years of age at the time of the alleged offending by the applicant. Child A was the daughter of the applicant's fiance at the time. He lived in the same home as child A and her mother and he was clearly in a position of trust.

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

The difference in age between child A and the applicant was between 25 and 26 years.

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

The applicant knew that child A was a child at the time of the alleged offending.

(g) The person's present age

The applicant is now 50 years of age.

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

The applicant does not have any convictions or findings of guilt made against him. However, he has come to the attention of Police a number of times in regard to alleged offensive behaviour, assault and stalking.
In December 1999, the applicant was found guilty, with no conviction recorded, of an offence of behaving in an offensive manner in/near a public place/school. The charges related to an event that occurred during the evening of a day in September of that year, while the applicant was in a carriage, on a commuter train, with 30 other people. The Police Report in regard to that incident states that the applicant "was observed to be well affected by intoxicating liquor." Security staff had spoken to the applicant about his use of offensive language while he was talking on his mobile phone. He was talking loudly and ignored the requests of the security staff to stop using offensive language. The train guard was called, who also asked the applicant to stop using offensive language, which caused the train to be delayed a short time. The applicant is recorded as having abused and sworn at the security guards, the train guard and other passengers. He became involved in an altercation with a passenger and police were called. The applicant continued to swear and abuse the security guards who restrained him with the help of some members of the public until police arrived. After obtaining the applicant's details, the applicant was allowed to leave the station "with his wife." At the time the applicant was living with the mother of child A and child B.
In 2005, in the course of the investigation of the alleged offending by the applicant against child A, her older brother, child B also gave a statement to police in regard to the alleged incident of the applicant having assaulted (i.e. choked) him some time prior to the March 2000 separation of his mother and the applicant. In his 2005 statement to police, child B said he swore at the applicant who became extremely angry. Child B said he ran into the back yard and tried to lock himself in the laundry, but was unable to close the door before the applicant pushed him. He said the applicant grabbed him with two hands around his neck and forced his back up against the wall. He said he was having trouble breathing and thought the applicant was going to choke him. He said his mother intervened and began punching the applicant, when he let go. The applicant was charged in relation to this alleged assault in 2006, together with the charges relating to child A. However, following the acquittal of the charges relating to child A, criminal proceedings in regard to the offence concerning child A's brother were not proceeded with.
In addition to these charges, information obtained from the NSW Police record a number of additional incidents reported to police by alleged victims about the applicant's conduct towards them. The first recorded incident was in March 1995 when a confrontation and fight occurred between the applicant and another adult male at a hotel bar. It was alleged the applicant bit the other male on the finger and the other male kicked the applicant. Police were called but no further action was taken.
In May 1999 the Police recorded an attendance to premises where the applicant resided with a female aged 33 years. They attended the premises shortly after midnight, following an anonymous call from a male. The applicant nor the female wished to discuss the matter with Police and the female said she was ok and not scared of the applicant. We note the applicant was residing with the mother of child A and child B at that time.
In October 2000, a female, aged 34 years, attended the local police station at a town along the southern coast of NSW. The female is recorded as having complained about the behaviour of the applicant with whom she had a de-facto relationship that ceased some time ago. The female told police the applicant refused to accept the relationship was over and was constantly sending her offensive mobile text messages. She said he sent sufficient text messages to fill her phone and when she deleted them he sent more. She also told police that the applicant had made threats against a person whom he incorrectly believes she is having an affair with. Again, having regard to the content of the report the female appears to be the mother of child A.
A further report was made to police by the mother in February 2001. She reported that at 1am on the previous day she received a call from the applicant in which he said "Hi gal just want 2 let u no that I haven't let it go what [name of person] has done 2 me I will kill him." It was noted that the applicant had not as at that time been served with the Apprehended Violence Order made against him concerning the mother.
In August 2011, another female reported to police that she was fearful of the applicant. She explained to police that she had been in a short relationship with the applicant and during that relationship she fell pregnant. She informed police that in late 2010, she had a daughter child C - the father being the applicant. In August 2011 the mother of child C had agreed to travel with the applicant to visit his family in northern NSW. During this time they argued about custody of their daughter - the applicant wanted full custody. After the mother of child C returned to her home town with child C, the applicant continued to text her. He also told her he had private investigators following her around and watching her every move. He also sent her a picture message on her mobile phone. When she opened it, it was a picture of her car with her registration number at an unknown location in her home town. Police suggested the mother of child C might like to seek an apprehended violence order - she said she did not wish to do so. About two weeks later the mother of child C again approached police and on this occasion requested an apprehended violence order. Police did not request such an order as they formed the view there was no basis to do so.
Finally, in December 2011, the mother of child C reported to her local police station that she had been sexually assaulted by the applicant on Father's Day that year. She alleged she had been sexually assaulted when they were returning from a visit to the applicant's family with their daughter. The applicant was spoken to a number of times in early 2012 in regard to the allegations and it was noted that the mother had been advised by her lawyers to include the alleged sexual assault in the Federal Circuit Court proceedings, initiated by the applicant seeking custody of their daughter. Police took no further action and in July 2014, the Federal Circuit Court made final orders in regard to child C. Those orders we note make provision for equal shared parental responsibility, with the child C residing with her mother and the applicant being granted specified access times with the child.

(i) the likelihood of any repetition by the applicant of the offence or conduct and the impact on children of any such repetition

The respondent contends that the ongoing allegations of sexual assault and threatening and stalking made against the applicant by different women since 2000 is indicative of ongoing risk of harm. We agree that the impact on children of such behaviour, should it occur in the future, would cause serious harm. The respondent contends that even in the absence of a past conviction or finding of guilt, a failure by the applicant to obtain an independent psychological risk assessment report, in the circumstances surrounding the ongoing allegations, we cannot be satisfied the applicant does not today continue to pose a serious risk of harm to children.
The applicant on the other hand asserts that as he has not been found guilty of any offences there is no basis to find that he is likely to re-offend. He also asserts it is not incumbent on him to seek any psychological assistance or an independent psychological risk assessment. The applicant argues that having obtained a Victorian working with children check clearance and successfully obtained access to his daughter are indicative of others having determined that he does not pose a risk of harm to children.

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

In addition to the material we have already dealt with, the applicant relied on two references from persons who have known him for some time and a referee who has known him for 18 months. The referees all make reference to the applicant having been found not guilty of the allegations made against him. They do not explain what they were told, shown or knew of the allegations that had been made. However, one referee went so far as to say: "I am aware of the history of the allegations made against [the applicant] and I am also aware that they were proven unfounded and that the court documentation provides very clear reasoning that shows that [the applicant] did not commit these offences. There is quite clear and strong documented evidence within the court files pertaining to these matters that clarifies that the allegations pertaining to these offences were falsified …"
In the absence of these referees identifying the nature of the allegations that were made and the basis on which their opinions were formed we cannot place much weight on them in so far as they relate to the issue of risk.
As we have indicated above, the applicant also relied on the 11 November 2014 AVO order he obtained from the Local Court against the mother of child A and child B as evidence of a sustained attack on him by the mother, which included influencing the mother of his daughter to refuse him access to his child. Based on the material before us, we do not accept the applicant's contention.
The applicant provided the respondent with a copy of the AVO order that was made, an affidavit sworn by the mother on 24 October 2014 in response to the application and a letter from his then employer dated 7 November 2014. In her affidavit, the mother said that, up until 20 October 2014, when she was served with the applicant's AVO application, she was unaware of where the applicant was working, that he had a child, or that he had commenced proceedings relating to that child. She said she was aware the applicant left the State after his 2007 trial, but had no further knowledge about him since that time.
Subsequent to the mother of child A and child B having served her affidavit, the applicant's employer wrote a letter to the Local Court, dated 7 November 2014. The letter made reference to the Regional Manager having received a message, on 26 September 2014, on the afterhours requesting the Manager to call a person named the mother who wanted to discuss a man who had sexually assaulted her daughter and who may have a role with that organisation. The letter stated the Manager called the mother the following day and as a result the applicant was spoken to. It was noted that the applicant denied the allegations and that he sought legal remedies in regard thereto. We note the applicant made his application to the respondent seeking a clearance about four weeks after the hearing of his AVO application. From the material provided by the employer it would appear that as a result of this meeting, the employer required the applicant to obtain a clearance.
It is unclear whether it was in fact the mother who had called the applicant's employer. As we have noted, the letter was sent after the mother filed her affidavit. Whether she was made aware of the contents of the letter and given an opportunity to respond to it is not explained. Even if she did make the call, for the reasons we have already given, we are not persuaded that a call the mother made in 2014 is evidence of harassment by the mother going back to 2005, as alleged by the applicant.

(k) Any other matters that the children's guardian considers necessary

In addition to the matters we have already addressed, the respondent contended we should have regard to the circumstances in which the applicant's employment was terminated, in early 2016, after the respondent had refused his application for a clearance and after he had filed this application for review.
As we have noted, the applicant was informed of the respondent's determination of his clearance application on 7 January 2016. On 21 January, the Human Resources Officer of the applicant's employer sent him an email to say they needed to meet and discuss his position in light of correspondence received from the respondent. The applicant was also expressly told he was not permitted to attend a specified festival, or any other similar event, as an employee of his employer. The applicant responded the following day noting that there were two differing views as to what constituted child-related work. He then set out five options his employer could take while he exhausts the appeal process from the respondent's decision. These included, re-assigning him to other duties, his employment be terminated, have him resign, make him redundant and stand him down on full pay while his appeals are pending. His preferred option was the latter on the basis he would be stood down for personal and family reasons.
On 25 January 2016, the applicant met with the General Manager and Human Resources Officer of his employer. At this meeting, the General Manager raised with the applicant why he had arranged, without approval, to attend the specified festival. The General Manager noted the applicant had "blatantly disregarded the requirement to seek permission for this event" and once it came to light he stepped in and five minutes later the applicant sent an email to say he could not attend.
The General Manager noted that the applicant was at all times aware that a clearance was required. He went on to describe the options that were open to him on behalf of the organisation. These were to restrict the applicant's role, give the applicant unpaid leave while the appeal process was in progress and finally terminate the applicant's employment.
The applicant's employment was subsequently terminated. We make no adverse finding against the applicant in regard to the termination of his employment - this was a matter entirely for his employer. However, we are concerned about the approach he took with his employer. While, in his role, he did not have day-to-day direct face-to-face contact with children he was aware that he required a clearance in order to remain in his role, which included attending special events where children would be present and he would have a leadership role. In our opinion, his response to his employers following the refusal of his applicant by the respondent demonstrates a lack of understanding about child protection in the workplace.

Conclusions and orders

We reiterate, our role is to determine the correct and preferable decision having regard to the material before us and the applicable law. As we have noted, 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 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.
The alleged 2000 offending conduct, involving child A, for which the applicant was charged were very serious, if true. They occurred 16 years ago and the applicant has at all times strenuously denied the allegations and asserted they were a fabrication. He was committed on the charges but found not guilty.
We make no finding that the alleged offending did occur, but do not at the same time find that they were fabricated or groundless. Instead we have found that there remains a lingering doubt or suspicion concerning the applicant's conduct at that time. Hence we find the allegations were such to give rise to a real and appreciable risk of harm to the safety of children. The question is whether that risk remains today.
The applicant has no criminal record, but his behaviour has been the subject of a number of reports to police. These reports included allegations of assault, offensive behaviour, sexual assault and stalking. The most recent report having been made in late 2011. Despite these ongoing allegations, at no time has the applicant examined his own behaviour in regard to the alleged events of 2000 and those that have occurred subsequently. Instead he continues to blame others.
In our opinion the ongoing reports of alleged assault, sexual assault and stalking, which are of a similar nature to the alleged events of 2000, are indicative of an ongoing real and appreciable risk of harm.
That the applicant has now has regular access to his daughter is a factor in his favour. However, we are unable to give much weight to this factor as we have been given very little information about the access visits other than the terms of the Court order which granted him access.
That the applicant has been granted a working with children check clearance under the Victorian legislative scheme, Working with Children Act 2005 (Vic), is also a factor in his favour. However, we are unable to give much weight to this factor as the legislative scheme differs to that contained in the WWC Act. Nor have we been provided with any information as to the basis on which the applicant made that application, or whether a risk assessment was undertaken having regard to the matters that are before us, in particular the allegations of child A.
We accept there is no statutory requirement for the applicant to obtain an independent psychological risk assessment. It was a matter for him to determine whether a report of this nature would assist his application and we make no adverse finding against the applicant for failing to obtain such a report. However, we remain concerned about the applicant's failure to obtain any professional assistance in regard to child protection issues and how his behaviour might have led to the allegations that were made.
In conclusion, as the protection of children from sexual and physical harm is paramount in these proceedings, we are satisfied on the material before us that, as at the day of hearing, the applicant poses a real and appreciable risk to the safety of children. Accordingly, we find the decision of the respondent is the correct and preferable decision and on this basis the appropriate order is to affirm the respondent's decision.
The effect of our decision is that the applicant is prevented from making a further application for 5 years, unless he can establish a change of circumstances and he satisfies the respondent to invoke her discretion to permit an earlier application: see WWC Act, s 13A.
Orders: 1. Time is extended within which the applicant is to lodge his application to 9 February 2016. 2. The decision of the respondent, made on 6 January 2016, to refuse the applicant's application for a working with children check clearance is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 January 2017

Child Protection Legislation Amendment Act 2015(NSW)

Children Act 2005(Vic)

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