CSU v Children's Guardian - [2017] NSWCATAD 302 - NSWCATAD 2017 case summary — Zoe

NSWNSWCATAD

CSU v Children's Guardian

[2017] NSWCATAD 302

NCAT Administrative and Equal Opportunity|2017-05-23

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2017-05-23

Catchwords

Secretary, Department of Justice v P M Y [2012] VSCA 143 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

Source

Original judgment source is linked above.

Catchwords

Secretary, Department of Justice v P M Y [2012] VSCA 143 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

Judgment (63 paragraphs)

[1]

Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 BVT v Office of the Children's Guardian [2016] NSWSC 1169 BYR v Children's Guardian [2013] NSWADT 310 BZU v Children's Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 CHB v Children's Guardian [2016] NSWCATAD 214 Children's Guardian v BQJ [2016] NSWSC 869 Children's Guardian v CFW [2016] NSWSC 1406 CJT v Office of the Children's Guardian [2016] NSWSC 738 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 CSZ v Children's Guardian [2017] NSWCATAD 57 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 ZZ v Secretary, Department of Justice [2013] VSC 267 Category: Principal judgment Parties: CSU (Applicant) Children's Guardian (Respondent) Representation: Counsel/Advocates: N Gabbedy (Applicant) I Fraser (Respondent)

[3]

Introduction

The applicant is known by the pseudonym "CSU" in these proceedings in order to protect the identity of the applicant as is the practice of the Tribunal in order to prevent the identification of any children who have been mentioned or referred to in the evidentiary material and in accordance with Procedural Direction 9 of the NSW Civil and Administrative Tribunal.
CSU filed in the Tribunal an application for review under section 27 of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act") concerning a decision of the Children's Guardian, made and notified to CSU on 24 August 2016, 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. The application for review under section 27 of the Act in the Tribunal was filed within the time permitted, which is within 28 days.
The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 apply to this particular matter due to the date of the application which was 31 March 2016 after the commencement date of the amendments: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. In CHB v Children's Guardian [2016] NSWCATAD 214 the Tribunal held that section 30(1A) of the Act applies where the Children's Guardian has made a decision to cancel a person's Working with Children Check Clearance after the commencement of the amendments and the application for review is made after the commencement of those amendments.
An interim bar was imposed on 17 May 2016 and at the same time the applicant was informed that the Children's Guardian proposed to refuse the application.
The applicant was subject to a risk assessment by reason of section 14 and section 15(1) of the Act. The applicant was the subject of a Reportable Conduct Unit investigation into allegations that the applicant and his partner ill-treated, neglected and physically assaulted children in their care. These allegations were sustained by the Reportable Conduct Unit and as a result the applicant was subject to an assessment requirement by reason of clause 2 of Schedule 1 of the Act. As a result of the risk assessment and pursuant to section 18(2) of the Act the Children's Guardian refused to grant a Working with Children Check Clearance to the applicant.
The applicant seeks a Working with Children Check Clearance, in order to work with children occasionally as a medical practitioner.
The applicant is without a Working with Children Clearance now, preventing him from working in "child-related work": subsection 6(2)(c) and section 8 of the Act; clause 6 of the Child Protection (Working with Children) Regulation 2013. That means he cannot work in a hospital where children receive medical treatment in New South Wales.
This is an application pursuant to section 27 of the Act. The application for review was heard orally by the Tribunal on 22 and 23 May 2017.
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].
Provided that the matters which must be considered in section 30 of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
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.
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.
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.
The Tribunal may not 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. A conditional grant of a clearance for the purpose of allowing the applicant to work with conditions and in his chosen area is not permitted by the legislation.
An order has been made under section 64(1) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting 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. That order is varied to accord with the current practice of the Tribunal.

[4]

The evidence relied upon in the hearing

The applicant relied upon documents which were tendered as Exhibits as follows: 1. Statement by the applicant's partner: Exhibit A1. 2. Professional reference concerning the applicant: Exhibit A2. 3. Character reference concerning applicant by JM: Exhibit A3. 4. Statement from a friend of the applicant by LR: Exhibit A4. 5. Character reference concerning the applicant by TW: Exhibit A5. 6. Character reference for the applicant by Prof AH: Exhibit A6. 7. Application and an annexures filed 16 September 2016: Exhibit A7; 8. Applicant's consolidated submissions filed 22 May 2017: Exhibit A8.
In addition, the respondent relies upon: 1. Section 58 documents filed by the respondent comprising 301 pages filed 28 October 2016: Exhibit R1. 2. Two volumes of further documents relied upon by the respondent filed 9 February 2017 comprising 906 pages: Exhibit R2. 3. Documents filed by the respondent on 11 May 2017 comprising 20 pages: Exhibit R3. 4. Submissions of the respondent filed 12 May 2017: Exhibit R4. 5. Schedule of documents referred to in the Family and Community Services Report in the section 58 documents, filed on 12 May 2017: Exhibit R5.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil standard of proof which is on the balance of probabilities.
The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "…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."
This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.
Further 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."
The Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 ("Bronze Wing") at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted: "[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36]. [72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test. … [74] Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party."
The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 ("Karakatsanis ") at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis: "[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law. [37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be 'comfortably satisfied' of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting 'a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct'. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])] [38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).] 'The notion of 'inexact proof, and indefinite testimony or indirect references [scil. inferences]' needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.' [39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present."(footnotes and references included)
The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017 after granting leave to appeal, dismissed the appeal from Justice Button's decision and orders in Bronze Wing.
The Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil standard of proof in determining a factual matter: CJT v Office of the Children's Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61].
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."
The initial practical or forensic onus but not the legal onus is thus generally to be 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)
The currently constituted 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.

[5]

Legislative Provisions relevant to the decision

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 made in earlier decisions, so that the legislative basis of this particular decision is transparent and identified for the parties.
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."
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."
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."
"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
"Conviction" as defined in section 5 (1) of the Act "includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction."
Pursuant to section 14 of the Act a person becomes subject to an assessment requirement in the circumstances referred to in the section which is as follows: 14. Assessment requirements A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.
The applicant is subject to an assessment requirement because the offences with which he was charged and for which he stood trial, subsequently receiving a verdict of acquittal in relation to all of the counts in 2015, are all offences referred to in schedule 1(1)(b) of the Act. The detail of the offences will be referred to later in these reasons. If he had been convicted then he would have been a disqualified person in terms of the Act.
Pursuant to section 15(1) of the Act the Children's Guardian must conduct a risk assessment of the applicant. The section relevantly 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...."
The hearing before the Tribunal is therefore 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.
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.
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.
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.
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.
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].
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.
The Tribunal is required to follow 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 the often cited decision of 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."
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]. The reasoning behind the Tribunal's determination is set out in these reasons.
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.
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.
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.
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.
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."
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."
As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and 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.
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."
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.
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.

[7]

Considerations and the Evidence

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 sub sections 15 (4) and 15 (4A) of the Act which are more aptly descriptive of that process than is sub sections 30 (1) and 30(1A) of the Act. It is relevant to note that the factors contained in the subsections address the same considerations expressed in slightly different language.
Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to and consider both sections 30 (1) and section 15 (4) considerations as required by both sections.
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.
Section 15 of the Act relevantly provides as follows: 15. Assessment of applicants and holders ..... (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. (4A) The Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children's Guardian is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and (b) it is in the public interest to make the determination. (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.
Section 30 of the Act relevantly provides in relation to this application 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. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person") to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. (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.
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.
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 and the circumstances giving rise to the charges he faced: section 63 of the Administrative Decisions Review Act.

[8]

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

The applicant is not a disqualified person.
The purpose of the risk assessment is to be protective of children and not punitive of the applicant, as earlier stated. The risk assessment identifies factors which are relevant in determining the risk the applicant may pose to children. The legislature has included this factor as a matter relevant to the assessment of risk.
In 2008 the applicant and his partner were authorised carers under the Children and Young Persons (Care and Protection) Act 1998 (NSW). There were four children placed in their care from 2008 until 2010. The last placed child was removed from their care at his request after making disclosures of physical abuse and ill-treatment by the applicant and his partner. This child was not later interviewed by the Reportable Conduct Unit because of advice concerning his mental health.
The other 3 children made allegations alleging ill-treatment and physical abuse. Only one of the children was willing or able to be later interviewed by the Reportable Conduct Unit. Police attempted to interview one of the children but they advised they were "unable to obtain reliable evidence".
The applicant and his partner were given several extensions of time within which to provide information in response to the allegations, but they did not provide any information. It should be noted that the applicant did not provide an affidavit or a statement in response to the allegations to this Tribunal. The reasons for this as provided in the applicant's oral evidence will be referred to later in these reasons under the appropriate heading.
Since the applicant filed his application in the Tribunal the respondent obtained further information in which allegations were made by a former foster child placed in the applicant's care in 2007, allegations of physical and psychological abuse in 2006 and 2008 in relation to the applicant's biological daughter, and allegations in relation to a foster child placed with the applicant in 2008.
The applicant and his partner were authorised as carers by an agency on 5 February 2007. A child was placed into their care. When that child stayed with his maternal aunt later that year he disclosed that he was scared of the applicant's partner and she yelled at him. Ultimately the child said that he was too scared to tell anyone what was happening in the placement. The child was not returned to the care of the applicant and the agency took steps to withdraw the authorisation they had previously given. After that authority was withdrawn the applicant and his partner did not return the child's belongings.
It was alleged that the applicant's biological daughter was smacked across her buttocks with a leather trouser belt in 2006. Police spoke with her and she said that she had been hit lightly with the strap because she was not saying the right things to her father concerning his partner. The child's mother did not wish for any further action to be taken. A report was made to police in 2006 that the applicant had taken his daughter from school in contravention of Family Court orders. The applicant said that he had done so because he did not think that the mother had arranged proper medical treatment for their child. Notwithstanding these allegations, the biological child then commenced to reside with the applicant and his partner in 2008. Reports were made to Family and Community Services alleging that the daughter was not allowed to go on school excursions because she would be 'having too much fun'. It was also alleged that she was not allowed to go on excursions as punishment for not completing assignments to the applicant's standard. It was described that the applicant was punitive. There were allegations concerning the child's assignments and academic achievements and the fact that the applicant would not allow the child to socialise unless she had done her schoolwork. The applicant's partner was alleged to have hit the daughter and pushed her off a chair causing a bruise on her leg. It was alleged that the applicant was not protective and agreed with his partner's disciplinary techniques. It was alleged that the child was prohibited from seeing her mother. It was alleged that in meetings with the school the applicant and his partner were aggressive, controlling and unwilling to follow up with school policies. It was also said that the child was spending hours sitting at the window appearing to be depressed.
The daughter sent letters to her mother in which she said that she was being hit by the applicant and his partner, that she had not been allowed to have her birthday cards or to read anything from her mother, that she was told that her mother did not want to see her anymore, that she wanted a camera to take photos of the bruises when the applicant and his partner hit her, that the applicant's partner ripped up her assignment threw her across the room, and also assaulted her with a belt and also by slapping, kicking and punching her. The daughter returned to her mother's care shortly thereafter and made further allegations. Those allegations were that she was prevented from wearing school shoes to school or taking her schoolbag as a punishment by the applicant and his partner for not tidying her room properly. It was alleged that she was forced to wear sneakers and take her schoolbooks to school in a plastic bag in order to humiliate her into conforming with the rules imposed upon her by the applicant and his partner. The daughter also alleged that she would be forced to stand up to eat at the table as a punishment for not obeying the applicant or his partner, that she would have to ask permission to go to the toilet which resulted in her wetting and soiling herself several times due to not being able to go to the toilet and was then forced to clean her clothes herself, that she was confined to her room, and that the applicant's partner cut off her hair because she refused to stop playing with it. Additionally, she alleged that she was hit for no reason, leaving bruises. The applicant's daughter said she wanted to return to live with her mother.
The biological daughter alleged when she returned to the care of her mother that the applicant closed all the windows and turn up the TV or radio so that the neighbours did not hear her scream. The Department of Family and Community Services received reports that the daughter was seriously traumatised and required counselling. The child's mother affirmed an affidavit which was filed in the Federal Circuit Court of Australia outlining the disclosures made by her daughter and annexing letters she had received from her daughter.
The foster child who was in the applicant's care in 2008 also made allegations concerning harsh and punitive discipline. The Department of Family and Community Services received reports that she was at school without food or money and that the applicant's partner had confiscated her mobile phone and 'sim' card. It was also alleged that the applicant and his partner were verbally abusive to the child. It was also alleged that the applicant and his partner changed the child's assignments prior to their submission. It was also said that the child tried to escape but was brought back and severely punished. In October 2008 after being in the care of the applicant and his partner for approximately five months the child was taken to hospital having cut her wrists. The following day the applicant and his partner informed Family and Community Services they could no longer take care of her.
The respondent submits that the allegations which were the subject of the Reportable Conduct Unit report but were found not to be sustained should be disregarded by the Tribunal.
The Reportable Conduct Unit found 14 of the 15 allegations were sustained against the applicant in relation to the children in his care. The investigation report formed part of the evidence in these proceedings. It was noted in the report that the inability to obtain evidence from the applicant and his partner and from two of the children, limited the scope of the investigation's evidence gathering. It was also noted that the capacity to test or corroborate the evidence provided by the children and other witnesses was affected by that limitation. It was stated in the investigation report that the applicant and his partner refused to be interviewed by the unit and provided no response to the allegations.

[9]

Allegation 1

It was alleged that the applicant and his partner ill-treated three of the children by restricting their freedom and/or making excessive and unreasonable demands on them as follows: 1. That they frequently made the children stay up late into the night doing their homework over many hours and kept them awake by spraying them in the face with cold water from a spray bottle. 2. On at least one occasion the applicant and his partner woke up one of the children in the middle of the night and made him do homework until the morning.
Three of the children complained that they were made to do their homework until late into the night or they fell asleep, were woken up to complete homework, to repeat their work until they got correct, and sprayed with icy water to keep them awake. An email sent from the applicant to the school advising that one of the children would not attend the school camp unless she showed that she was making an effort to complete her home and school based learning tasks otherwise her attendance at the camp would undermine any future attempts to actively engage her in her own learning. Another email from the applicant's partner to the caseworker indicated that a different child was put outside and the police were called because of her screaming which disturbed the neighbours. It was said in the email that after the girl kicked the front door "so hard that she has taken the paint off" that it was 8:30 pm and that she was only then commencing her homework so her behaviours may not have settled.
The three children's statements were taken at different times and were provided to different parties. The consistency between their allegations was the many hours they were made to do homework and were punished if it was not completed to the applicant or his partner's satisfaction. The investigator considered there was no opportunity for collusion between the children. There was some variation in the way in which the water was alleged to have been dispensed, but the consistency was that cold water was sprayed or splashed upon them to keep them from falling asleep. The emails which were viewed by the investigator showed an unrealistically high level of expectation for children in primary school and an uncompromising response to non-compliance. On balance the investigator considered that the weight of evidence supported the conduct which was alleged. The allegations were sustained.
The applicant gave evidence that he only woke one of the children up early once to complete some homework. The applicant gave evidence that allegation about the use of a spray bottle or a bucket of water as a discipline tool to keep the children awake was false.
The applicant submitted that the children were usually in bed with the light off before 9:30 pm. It was submitted that the children were not up later than 10 pm doing schoolwork. It was submitted that there were only two occasions which the applicant's partner recalls when a child was up beyond 10 pm doing schoolwork. The applicant submits that none of the children were reported to be obviously falling asleep in class, appeared to be exhausted for sleep deprived as would be expected if they were made to stay up doing their homework.
It was submitted that the children would spray each other with a water spray in summer when it was hot. This was submitted to be a bit of fun and never in order to keep a child awake.

[14]

Allegation 2 (v)

It was alleged that the applicant and his partner regularly made the children wear their pyjamas to school on the bus, wearing slippers or with bare feet, resulting in them being teased and ridiculed. The applicant and his partner would not allow them to take their school uniforms to school with them.
A member of the public contacted the helpline and disclosed that they had observed a 15-year-old boy standing at the bus stop wearing his pyjamas, a singlet and no shoes. It was raining and very cold at the time. The caller stated that every time the boy and his two sisters got into trouble they were made to go to school in their pyjamas. The caller stated it was the fourth time they had seen the children in their pyjamas at the bus stop going to school and that it had been going on since the beginning of the school year. The caller also stated that the children lived with a foster father who has been seen yelling at the children at the bus stop.
It was also reported that the boy had arrived at school in his pyjamas without his school uniform with him. He reported that he had been sent to school and his pyjamas at his previous school. Two days later the helpline was contacted that the boy arrived at school again wearing his pyjamas without any lunch. He was interviewed by caseworkers from the local CSC and he said that he was dressed in his school uniform in the morning and had been made to change into his pyjamas and sent to school on the bus. He said that he had been sent to school in his pyjamas on other occasions and that he had been bullied.
The year prior a female child in the care of the applicant and his partner frequently went to school in her pyjamas. The applicant and his partner insisted that the school make sure she remained in her pyjamas in order to curb her behaviour. In one term that child went to school in her pyjamas almost every day for a month. The principal contacted the carers several times telling them that she had to wear school clothes but the carers refused, stating that she had to learn.
In 2011 one of the children disclosed that she and two other children had been made to go to school in their pyjamas.
The investigator considered that there was substantial and consistent evidence from a number of sources that all three children were regularly sent to school in their pyjamas as punishment. This occurred at a later time despite earlier police and Community Services involvement. The applicant and his partner did not provide any response to the allegation. It was considered by the investigator that the response of the applicant and his partner to send the children to school in their pyjamas as a punishment for tardiness in getting ready for school was disproportionate to the children's age, behaviour and vulnerability and was an excessive and obviously unreasonable demand upon the children. The allegation was sustained.
It was not disputed by the applicant that on some occasions the children went to school in their pyjamas. The behaviour which was said to precipitate the child being sent to school and pyjamas was that the child refused to dress in school uniform. It is submitted by the applicant that no child was ever sent to school without shoes. To a large extent this allegation was conceded by the applicant.
The Tribunal is satisfied that this allegation is established to the requisite standard which is on the balance of probabilities.

[31]

Allegation 5 (ix)

It was alleged that as a form of discipline the applicant's partner inappropriately denied one of the children access to activities that were reasonable for her to attend including a district sports carnival for which she had qualified, a classmate's birthday party, a school disco to which she was later transported to drop off one of the other children to the disco.
Reports were made to Community Services concerning the applicant and his partner's punishments for the same child the subject of this allegation. It was reported that the punishments "always seemed to be based around exclusion and being deprived of acceptable food (the slop)." The child "seemed unsure of what it was that she had actually done wrong and had told me a number of times that they kept telling her that she did "it" until she just gave in."
The schoolteacher reported that the child was devastated that she could not participate in the District sports carnival.
A report was made to the helpline that the child was prevented from attending the school disco by the applicant and his partner who claimed that she had deliberately defecated in her pants to get out of class to steal food from the other children's bags in the corridor. The child was taken to the disco by the applicant to show her what she was missing. The school reported that the child was distressed "and sobbed and sobbed". The teacher provided additional information to the investigator that the applicant and his partner allowed another child in their care to attend the disco but took the punished child "to make sure she could see what she was missing". The teacher also said that there was no report of food being stolen. The teacher heard the applicant and his partner questioned the child until she admitted more food stealing. This behaviour was consistent with the allegation made. This punishment scheme was also consistent with a report made about a child in their care years previously where he was excluded from participating in normal activities because he was not trusted.
The investigator considered that there was no direct evidence that the child was not allowed to attend parties.
The evidence was persuasive in relation to the exclusion from the district carnival and the disco. The historical evidence also supported that this was a pattern of conduct by the applicant and his partner. The exclusion from a merit-based inclusion in the district carnival and the exclusion from a social activity based at school were important events for the development of the child's self-esteem and social inclusion, and therefore were considered a particularly punitive response to an eight-year-old child. The Tribunal agrees with that conclusion.

[48]

Allegation 19

It was alleged that the applicant regularly observed the male child while he was having a shower and washed the male child's genitals and body against his objections.
The child made allegations that the applicant washed him using rubber gloves and described him as a "sick man". The child did not make an allegation that he was washed on the genitals by the applicant. One of the other children made that allegation. There is no evidence that the applicant engaged in sexually explicit comments with the child or overtly sexual behaviour, or that the applicant committed a sexual assault. This child was aged 14.
The investigator considered that given the child's age, background and objection to the applicant's conduct this exposed him to humiliation and stress and placed excessive and obviously unreasonable demands on him. The investigator found that it was an improper manner of treatment and constituted ill-treatment. The finding was sustained even though the sexual impropriety was not sustained.
The applicant states that this child had an offensive body odour and bad breath and complained of a sore penis. It was explained that he would have to go to the doctor or be taught how to clean his foreskin properly. The applicant did not touch the child's body or attempt to wash him but merely provided instructions in relation to proper hygiene.
There was no corroborative medical evidence provided to support the allegations of injury or emotional or psychological harm to any of the children. The children were removed from the care of the applicant and his partner, it is submitted by the applicant, on the basis of the investigation which did not incorporate the applicant or his partner's version of events.
Neither the applicant nor his partner have been charged with any criminal offences arising from the investigation. It was submitted on behalf of the applicant that 15 allegations were made against the applicant.
These are serious matters which led to the imposition of the interim bar and subsequently to the refusal of the working with children check clearance. Other matters of a serious nature have since been brought to light following the application by the applicant to the Tribunal.
Following the completion of the Reportable Conduct Unit investigation in about 2012 the Department of Family and Community Services took steps to cancel the authorisation of the applicant and his partner as carers. The applicant and his partner were notified in the middle of 2012 that their authorisation as foster carers had been cancelled due to sustained allegations about them in relation to ill-treatment, neglect and physical assault of the children in their care. They were informed that they could have that decision reviewed internally pursuant to section 53 of the Administrative Decisions Tribunal Act 1997 (NSW). There was no internal review of decision requested by the applicant or his partner.
The New South Wales Ombudsman formed the view that the sustained findings made by Community Services were reasonable. The Ombudsman also agreed with the concerns and recommendations outlined in the investigation report. The Ombudsman closed the file in relation to the applicant at the end of 2012 and had received no further notifications regarding the conduct of the applicant since that time.

[56]

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

The Tribunal is to form its own opinion about the likelihood of any repetition of conduct or risk in relation to the applicant independent of any expert opinion. 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.
The applicant was assessed in 2007 by two psychiatrists due a workplace dispute. It was considered that the applicant was suffering from an adjustment disorder with anxious and depressed mood, major depression with anxiety. The applicant was recommended to take an antidepressant medication for at least 12 months and to see a psychiatrist monthly. The applicant has not provided any recent expert evidence from a psychiatrist. There is no evidence that the mental health issues that the applicant suffered at that time were in any way connected to or causative of, his behaviour which resulted in the allegations. The applicant felt harassed within the workplace and believed that he was made a victim as a result of questioning decisions made by managers.
The Tribunal is aware of the caution which should be attached to risk assessments by psychiatrists and psychologists and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children's Guardian [2014] NSWCATAD 179 at [67] and BKV v Children's Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children's Guardian [2016] NSWCATAD 3 at [91]-[92].
In essence, expert witnesses in this Tribunal have stated that prediction of a relatively uncommon behaviour such as violent or sexual offence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and "gut feeling" play a determinative role in making a judgment.
In this matter there is no structured risk assessment provided to the Tribunal in support of the applicant's review application. The Children's Guardian risk assessment found that the applicant poses a risk to the safety of children.
The conduct of the applicant if it was repeated would have a significant impact on children. The allegations made against the applicant over an approximately five year period by different children in his care has some common characteristics. External bodies including the children's schools reported similar issues such as a failure to engage with them regarding their legitimate concerns about the children, and his aggressive and intimidatory interaction with those bodies.
In the absence of clinical evidence to support a finding that there has been any effective remedial action taken by the applicant to address his problematic behaviour with children, there exists a significant likelihood of repetition of that behaviour if the applicant is permitted to work with children.

[57]

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

The applicant has now provided information including the material recorded in the exhibits.
The Children's Guardian has not submitted that the applicant has failed to provide relevant information. However, it has been submitted that the applicant has not at any time provided a detailed account of the circumstances surrounding any of the allegations that have been made. There has been no account obtained from the applicant as a result of the Reportable Conduct Unit investigation, and significantly there has been no detailed response given to the Children's Guardian prior to the final decision, despite the fact that the applicant was given notice of a proposed refusal and given extensions of time to provide that information. It is assumed that the applicant has chosen that course of action for strategic reasons additional to the reasons he actually provides.
The applicant has chosen not to provide a detailed response to the allegations prior to giving oral evidence where he was asked questions. It is submitted on behalf of the applicant that there was little utility and trying to provide a response where details of the allegations were not provided to him and no evidence was put forward in support of the allegations. It is said on his behalf that in the absence of any evidence, a response by the applicant would simply be a denial of the allegation. It is submitted that the statement of the applicant's partner provides a complete rebuttal. Unfortunately, she was not able to be tested concerning her statement due to her personal situation which only became apparent on the second day of the hearing. The applicant's partner was not able to be cross-examined on her statement.
It is submitted on behalf of the applicant that the investigation by the Department of Family and Community Services failed to take into account or to give any weight to the inconsistencies in the evidence. It is submitted that the children had a propensity to mislead, fabricate information, or were deliberately lying in order to achieve their own ends. It is submitted that the investigator failed to accord natural justice to the applicant and his partner by failing to provide sufficient information about the allegations for them to provide a meaningful response.
The applicant's partner referred in her written statement to the fact that as a result of the desire for the applicant work in the public hospital system she has now provided a written response (Exhibit A1) to the allegations which were raised in 2011.

[59]

CONSIDERATION

The Act is designed to be protective and the Minister's second reading speech identifies that there are a number of matters which may be relevant to an assessment of risk.
The applicant submits that the evidence supporting the sustained findings in the investigation report is weak. The children who were placed in the care of the applicant and his partner were quite challenging children. There are, however, similarities between the allegations raised by those children and the applicant's own biological children. It would appear that the applicant has had quite rigid views about how to deal with difficult behavioural issues in child-rearing. The applicant and his partner were unable to provide the type of care that the children who were placed in their care required. The applicant and his partner were in conflict about those issues with the children's schools.
The children obviously considered that the methods of discipline and behaviour modification they experienced in the applicant's care were punitive rather than supportive and positive. While it is clear that a number of the allegations are far-fetched and simply not credible, a number of the events described clearly occurred and reflect an underlying rigidity and unsympathetic attitude towards vulnerable children. For example, sending the children to school in their pyjamas was clearly not in their best interests and did not address the underlying issues.
The applicant has minimised his own deficits and approached this application in a rather defensive and yet almost flippant way with minimal evidence from the applicant himself until he gave evidence in the Tribunal hearing room, and slight evidence of any insight into the impact of his behaviours upon children who were in out-of-home care and required better than average reparative parenting.
Indeed, there is evidence of physical and psychological abuse and ill-treatment by the applicant against his own children and those children who were placed in his care. Upon her return to her mother's care the applicant's biological daughter appeared traumatised by her experience in the applicant's home.
One of the children who was in the care of the applicant and his partner was taken to hospital having cut her wrists in an apparent suicide attempt. The following day in 2008 the applicant and his partner notified Family and Community Services that they could no longer take care of the girl.
Remorse on its own is not considered to be a factor that mitigates risk and without more than an expression of such sentiment, is a hollow response to an existing behavioural reaction. It is difficult to gauge whether the applicant would do things differently today and whether he is remorseful for his past failings.
Having regard to all of the matters referred to previously in these reasons it is the Tribunal's determination that there is an unacceptable risk of harm posed by the applicant. That unacceptable risk of harm can exist independent of a finding on the balance of probabilities that particular events have occurred: BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33]; Children's Guardian v CFW [2016] NSWSC 1406. The respondent submitted that there is in the evidence repeatedly unrealistically high expectations of academic achievements for the children who were in his care, that the children were not allowed to participate in school activities which would develop their self-esteem and were merit-based, confiscating or disposing of the children's personal belongings and failing to return those belongings in a diligent manner, verbal abuse and disparaging adjectives to describe the children.
The Tribunal has made an assessment of the allegations during the course of these reasons and discounted those matters which should not be accepted as having been established. However, there is an unacceptable risk on the basis that the allegations which can be made out are serious in nature, and cannot be discounted. In all of those circumstances an unacceptable risk is established. The submission of the respondent concerning unacceptable risk is accepted.
The evidence of the applicant does not rebut the unacceptable risk. Little weight can be placed upon the references provided to the Tribunal because it appears the referees were unaware of the nature of the allegations and findings which had been made about the applicant's conduct.
The assessment of the Tribunal therefore based upon all of the material referred to previously in these reasons is that the applicant poses a risk to the safety of children.
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.
The Tribunal agrees with the reasoning in CHB v Children's Guardian [2016] NSWCATAD 214 at [109]-[124]. Therefore, it is determined that the provisions of section 30 (1A) of the Act apply to this application.
The Tribunal is required to consider subsection 30(1A) of the Act in the event that the Tribunal considers that the applicant does not pose a risk to children. That subsection provides that the Tribunal may not make an order under this Part of the Act which has the effect of enabling a person, or the affected person, to work with children in accordance with this Act unless the Tribunal is satisfied that: 1. a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child related work, and 2. it is in the public interest to make the order.
The Tribunal has previously considered this provision in CSZ v Children's Guardian [2017] NSWCATAD 57, where an enabling order was made, and in CHB v Children's Guardian [2016] NSWCATAD 214, where the applicant had a clearance cancelled by the Children's Guardian and the Tribunal confirmed that decision. It was observed that analogous to the Victorian legislative scheme, the matters in s 30(1A) of the Act and its Victorian equivalent only need to be considered once the risk test has been satisfied: see ZZ v Secretary, Department of Justice [2013] VSC 267.
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". 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."
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."
The Tribunal finds that even if the applicant does not pose a risk to the safety of children, a reasonable person would not allow his or her child to have direct, unsupervised contact with the applicant, while the applicant was engaged in child-related work. This is because a reasonable person knowing the matters the Tribunal has referred to would consider that the applicant poses a degree of risk which is unacceptable to that person in terms of physical and psychological risk.
This determination is consistent with the objects of the Act and takes into account the variety of the forms of abuse contemplated in the offence creating provision in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The applicant was not charged with any offences concerning child or young person abuse, but on the balance of probabilities it is the Tribunal's determination that the applicant behaved in a manner which was abusive of the children's rights and caused physical and psychological harm.
Since the Tribunal is not satisfied that a reasonable person would allow his or her child to have the contact with the applicant contemplated by s 30(1A)(a), the Tribunal is precluded from making an order enabling the applicant to work with children in accordance with the Act. It is thus not necessary to consider the application of s 30(1A)(b).

CSU v Children's Guardian

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Cases Cited (55)