CXM v NSW Children's Guardian

Proceedings before the Tribunal

1. The applicant's application was heard on 16 August 2017. At the conclusion of the hearing, the Tribunal, constituted by Senior Member, J Anderson, and General Member, A Limbury, reserved their decision and made orders for the filing and serving of further (i.e. closing) written submissions by the respondent and the applicant.
2. On 18 September 2017, the Tribunal extended time within which the further written submissions were to be filed and served.
3. On 29 November 2017, the Tribunal made orders granting the respondent leave to file and serve two volumes of documents entitled "Life Without Barriers - Final Report from Investigator" (LWB Report). The Tribunal also made orders for the filing and serving of written submissions in regard to that Report.
4. On 24 January 2018, the respondent wrote to the Tribunal advising that the Ombudsman had advised that he intended to assess the LWB Report as to whether the allegations the subject of that Report had been properly investigated. The respondent said she was not in a position to advise when that assessment would be undertaken, but suggested that the applicant be afforded procedural fairness in regard to the findings of the Ombudsman once the assessment had been completed. The respondent went on to suggest that the matter be relisted for directions in late February 2018, to ascertain whether the Ombudsman had completed his assessment.
5. Around this time, Senior Member, J Anderson, who presided at the hearing of this application, became unavailable. The parties were informed, in correspondence dated 30 January 2018, of the Senior Member's unavailability and of the President's proposal to reconstitute the Tribunal by replacing Senior Member Anderson with Senior Member Higgins, as permitted by s 52 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The parties were afforded an opportunity to make submissions about the proposed replacement. On 8 February 2018, following advice from the parties, the President reconstituted the Tribunal Panel in the manner proposed. Accordingly, we have determined this application, having regard to the evidence (including a copy of the sound recording of the hearing), written submissions and the decisions in relation to the matter that were given or made before the Tribunal was reconstituted, as required by s 52(3).
6. On 26 February 2018, at the request of the respondent, the matter was listed before Senior Member, S Higgins, for directions in regard to an application by the respondent to re-open the matter once the report of the assessment of NSW Ombudsman was received. After hearing submissions from the parties, Senior Member, S Higgins, refused the application of the respondent.
7. On 28 May 2018, the solicitor for the respondent wrote to the Tribunal and advised that the respondent had received a letter from the NSW Ombudsman informing her that his assessment of the investigation and the LWB Report had been completed. In this regard, the Ombudsman said that in his opinion, the findings of the LWB investigator that the allegations made by child A were "not sustained - due to insufficient evidence" was open to her and that no further action would be taken at this time.

The WWC legislative scheme

1. The objects of the WWC Act are to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have a working with children check clearances: see WWC Act, s 3.
2. Section 4 of the WWC 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 that Act. Hence, the jurisdiction of the Tribunal under this 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].
3. The word "children" is defined in s 5(1) to mean persons under the age of 18 years. Consequently, the word "child" has the same meaning.
4. The term "child abuse" is not defined in the WWC Act and should be given its ordinary meaning, including physical injury, sexual abuse and emotional, or psychological harm.
5. Subsection 8(1) of the WWC Act prohibits a person from engaging in "child-related work", unless: 1. the person holds the relevant working with children check clearance; or 2. there is a current application, by the person, to the respondent for the relevant working with children check clearance (i.e. a clearance).
6. Subsection 9(1) contains a similar prohibition on an employer from employing, or continuing to employ a person, in child related work where the employer knows, or has reasonable cause to believe, that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.
7. Child-related work is very broadly defined in ss 6 and 7 of the WWC Act. It is accepted that the applicant requires a clearance in order to be authorised as a carer, or in the event his wife is an authorised carer and they have a foster child residing with them in their home: see WWC Act, ss 6(3)(c) and 10.
8. A clearance is not granted for a specific category of child-related work. Once granted, it is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].
9. Section 23(1) of the WCC Act provides that the respondent must cancel the WWC clearance of a person if she becomes aware that the person is a "disqualified person" or she is satisfied that the person poses a risk to the safety of children.
10. The term "disqualified person" is defined in s 18(1) of the WWC Act. to mean: "(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence."
11. The applicant is not a "disqualified person" as he has not been convicted, or found guilty of an offence specified in Sch 2 of the WWC Act.
12. However, by reason of the Ombudsman's notifications to the respondent he was subject to an assessment requirement (i.e. a risk assessment) under the WWC Act: see WWC Act s 14 and Sch 1, cl 2A. As we have noted above, where following a risk assessment, the respondent is satisfied the person poses a risk to the safety of children, she must cancel the person's clearance. The same test applies to person's who apply for a clearance and are subject to a risk assessment: see WWC Act, s 18(2).
13. The Tribunal has accepted that 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."
14. As we have already noted, in determining whether we can be satisfied that the applicant poses a risk to the safety of children we must have regard to the matters prescribed in s 30(1) of the WWC Act. We have dealt with these matters below. If we can not be satisfied that the applicant poses a risk to the safety of children, we must have regard to the matters prescribed in s 30(1A) of the WWC Act, before we can make the orders sought.
15. It is accepted that the approach to be taken by the Tribunal on review (as it was for respondent below) is to first consider the evidence in the context of the matters in s 30(1) of the WWC Act and determine the issue of risk (i.e. whether we are satisfied that the applicant poses a real and appreciable risk to children): see CTM v Children's Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] and ZZ v Secretary, Department of Justice [2013] VSC 267. If not satisfied as to risk, the Tribunal must then go on to consider the matters prescribed in s 30(1A) of the WWC Act.

Evidence

1. At the hearing of this application the applicant tendered into evidence an affidavit he swore on 14 June 2017 together with an affidavit sworn by his wife, an affidavit sworn by Ms A (a former foster child of the applicant and his wife), and an affidavit of Ms B (a LWB caseworker). The applicant also tendered into evidence a Psychological Risk Assessment Report of Dr Emma Collins, a Clinical and Forensic Psychologist, who had assessed the applicant in May 2017. The applicant also relied on a number of references he had provided to the respondent in the course of her risk assessment. These references were contained in the material filed by the respondent.
2. The respondent tendered into evidence seven bundles of documents, which included a bundle containing the s 58 documents. The remaining bundles contained copies of documents the respondent obtained in response to her s 31 requests to FACS, the NSW Police Child Abuse Squad, the Office of the NSW Director of Public Prosecutions, LWB, the NSW Rural Fire Services, and Scouts Australia concerning the applicant. Some bundles contained duplicates of material contained in another bundle.
3. As we have noted, in addition to the seven bundles of documents the respondent filed and served a copy of the LWB Report. That Report included copies of documents filed in these proceedings by the respondent and the applicant. In her further written submissions, the respondent attached some additional material provided by FACS concerning the April 2015 Joint Investigation Response Team (JIRT) investigation decision and their reasons for that decision regarding the allegations made by child A.
4. At the hearing on 16 August 2017, the applicant, the applicant's wife, Ms A and Dr Collins gave oral evidence and were cross-examined by counsel for the respondent.
5. Both parties filed and served written submissions prior to the hearing and after the hearing. As we have noted, both parties were granted leave to file and serve further written submissions.

Background

1. The applicant and his wife were married in early the early 1980's. They say they were unable to have children and have committed themselves to the foster care of children, including child A and her brothers. Some years ago, well before child A and her brothers were placed into the care of the applicant and his wife, the applicant was involved in an accident, which resulted in him damaging his groin region. Since that time, he has not been able to sustain an erection. The applicant and his wife say they nevertheless have a loving and caring relationship.
2. The applicant has his own business and often works away from home. He rises early between 4 and 5 am. Prior to the interim bar being imposed on him he has been involved in a number of community organisations, including the local Rural Fire Service.
3. Child A and her younger brother, child B, were placed into the care of the applicant and his wife in mid 2004. Child A was four years of age and child B was three years of age. In 2005 and 2006, child A's half siblings, child C and child D (two boys), were also placed into the care of the applicant and his wife. Child C and child D were very young in age when they were placed into the care of the applicant and his wife.
4. Child A and her siblings called the applicant and his wife "mum" and "dad".
5. In January 2014, child B was moved to another placement in a larger town due to the lack of schools, within the local area, that could cater for his special needs.
6. In May 2014, child A is reported as having absconded from the applicant's home. It was noted that she absconded because she was suspended from school and could not see her boyfriend. The records of FACS note that: "No response" was required in regard to this matter.
7. In August 2014, FACS was noted that the behaviours (i.e. text messages) between child A and child B were indicative of sexual abuse. It was noted that each child was interviewed separately and denied any abuse. It was noted that the sexualised text messages between child A and child B were found to have been initiated by child A's boyfriend who had used her mobile phone to send the text. The applicant and his wife were informed. FACS noted that they were shocked and would monitor the situation closely.
8. In early February 2015, child A, who was 14, nearly 15 years of age, ran away from the care of the applicant and his wife. The LWB Report described what happened as follows" "… [There] was no related incident report to this placement ending as the move was mainly due to [child A] opting not to return to her carers. The care team noted that [child A] was beginning to rebel against the [applicant and his wife] prior to leaving the placement. She had absconded a number of times and went missing for short periods. [Child A] stated that she was becoming increasingly unhappy with the carers restrictions. It was reported that the carers, on a number of occasions, had prevented [child A] from getting out of her bedroom window in the middle of the night. Although unconfirmed, [child A] was reportedly meeting up with older males."
9. Child A was reportedly spending a lot of time with a female adult, Ms R, who lived nearby and who was reportedly a friend of child A's birth mother. The applicant and his wife expressed concerns about child A's contact with Ms R because of the presence of an unknown older man residing at the premises. They were also concerned that while child A was at the home of Ms R she was exposed to drugs and alcohol.
10. After leaving the home of the applicant and his wife, child A was placed under the short-term care of another LWB authorised carer.
11. In early March 2015, child A, made a number of disclosures to her short-term carer who made a note of these in two emails she sent the LWB's case manager. The reported disclosures included an allegation that the applicant would come into her room at different times during the night and that he seemed to be jealous of her having friends, or talking to boys or males. When asked if anything inappropriate happened she allegedly said "yes" but gave no details. The reported disclosures also included concerns child A had about the safety of her younger two brothers if they remained in the care of the applicant and his wife.
12. The disclosures of child A were referred to the local JIRT team, who interviewed child A three days after the disclosures had been made. Interviewing child A was an officer of the NSW Police and an officer of FACS. We have dealt with the allegations made by child A during this interview below.
13. The FACS officer involved in interviewing child A noted that child A appeared to be genuine in her emotions during the interview.
14. In early April 2015 child A left her short-term placement and went on to self-place with the family of her boyfriend. After leaving her short-term placement, child A refused to return to LWB. As a consequence, the local Unit of FACS assumed case management of child A.
15. In early May 2015, the JIRT police officer and another police officer interviewed child B. In his interview, child B said that he had never noticed anything out of the ordinary between child A and the applicant. We have dealt with his evidence below.
16. In mid May 2015, the FACS officer of JIRT who had participated in the interview with child A, undertook a "Secondary Assessment Stage 2" in regard to the allegations made by child A. In regard to the "Severity of Harm/Risk of Harm" the FACS officers noted the following: "Severity of harm for [child A] is considered to be serious in nature. … … In relation to the actions of [the applicant], [the applicant] denies having ever cause harm to [child A] and KIDS records do not indicate any previous concerns in relation to [the applicant's] behaviour towards children. During this investigation and assessment period it has become evident that there are concerns in relation to the inappropriate discipline by [the applicant and his wife]. It is also evident that there is no reason to disbelieve information provided by [child A] during interview. Thus on balance of probabilities [the applicant] will be considered by CS to be recorded as a PCH."
17. The FACS officer also noted that: "in line with the Briginshaw Principle relating to the civil standard of proof in evidence and decision making [the applicant] has only been recorded as a person of interest in this instance." The officer went on to say that this was not a reflection of "Community Services" not believing the information child A provided during her interview.
18. In August 2015, the applicant met with police at the local police station. He was arrested and agreed to participate in an electronically recorded interview with police that day. At the conclusion of the interview he was released and not charged with any offence. As at the date of hearing the applicant has not been charge with any offence.
19. In October 2015, Police obtained statements from the applicant's wife and Ms A, a former foster child who had been in the care of the applicant and his wife. Statements were also obtained from child E (a foster child who had been staying with the applicant and his wife in late December 2014 and early January 2015) and Ms R (the adult female who lived near the applicant and his wife) in March 2016
20. On 21 December 2015, the FACS officer involved in interviewing child A, interviewed the applicant in regard to all the allegations made by child A. That interview was for FACS purposes and independent of the police investigation which was ongoing at that time. The applicant co-operated by participating in the interview and gave consistent denials of the events alleged against him. At the interview, the applicant was supported by his wife.
21. On 31 October 2015, the FACS officer involved in interviewing child A, interviewed her again. During this interview the FACS officer did not deal with the allegations in any detail. However, child A was asked a number of questions about the manner in which the applicant and his wife had cared for her and her younger.
22. Child A was otherwise not willing to engage with the police investigators after her March 2015 interview.
23. The Police brief was forwarded to the NSW Director of Public Prosecutions (DPP) for advice as to whether to proceed with the allegations made by child A against the applicant. On 27 February 2017, the DPP advised that, on the current evidence, there were no reasonable prospects of conviction by a tribunal of fact properly instructed for any of the offences to which the allegations may relate. The DPP went on to note that the decision as to whether to charge, or not to charge remained with the relevant police officer, the Commissioner of Police or his delegate.
24. The applicant has never been charged and the Police case was closed following receipt of the DPP's February 2017 advice. In July 2017, the LWB investigator commenced her investigation of the disclosures made by child A. This included all the allegations that had been made against the applicant and his wife concerning their care of child A and her brothers.
25. As we have noted, in her report, dated 7 October 2017, the LWB investigator found all allegations, including those made against the applicant, were not sustained due to insufficient evidence.

The allegations made by child A during her March 2015 interview

1. During her interview, child A made the following general disclosures: 1. since she was the age of 6 or 7 the applicant would touch her between her legs and her vagina while she was sitting on his knee. He would touch her on the outside of her clothing. He did not say anything while he did this and the boys would be sitting on the knee of the applicant's wife; 2. when she was about 11 or 12 years of age, the applicant would come to her room late in the evening and "finger" (digitally penetrate) her. This would happen while she was asleep and he would leave if he thought she was waking up. She said this happened "at least once a week" and on a couple of occasions he would be "wanking" (masturbating); 3. the applicant had asked her to send "some nudes" in a snapchat message and would say things to her like: "I would love to watch you shave your legs".
2. During her interview, child A was asked whether she recollected any specific incidents where the applicant had "fingered" her or touched her between the legs and vagina. Child A recounted a number of events which were categorised by the JIRT officers into incident 1, incident 2, incident 3 and incident 4. Set out below is a summary of what child A said during the course of the interview in regard to each incident: 1. Incident 1: child A recollected that the last time the applicant had "fingered" her was around the end of January 2015 at about 2am. She said she was asleep in her bedroom when she woke to find the applicant sitting on her bed with his finger inserted in her vagina. She said her underwear and shorts were also down around her ankles. She said she rolled up into her doona, at which point the applicant attempted to pull the doona off her. She said she made it seem like she was waking up; at which point the applicant stopped and left her room. 2. She said that later that morning, as she was walking past the applicant she received a text message from her boyfriend. She alleged that the applicant told her that he did not like her talking to other males and that he should be the only male in her life. 3. Incident 2: child A could not recollect a specific occasion when the applicant came into her room and was "wanking". When asked what would happen on those occasions, child A said the applicant would sit on her bed looking at her - he would have one hand on her leg and his other hand moving up and down on his penis, which was exposed from his pants and was soft in appearance. Child A said she would roll into her doona as usual and the applicant would leave. She said she thought he left because he "thought I was gunna wake up". She said she did not think the applicant ever knew she was awake. 4. Incident 3: child A said that towards the end of 2014, or when she was about 11 years old, she went on a fishing trip with the applicant and the boys. She said she was sleeping in the back seat of the applicant's utility when the applicant, who was seated in the driver's seat, reached back with his hand and rubbed her stomach, breasts, legs and vagina over the top of her clothes. She said that she rolled over and the applicant stopped doing this. She said her bother, child B, was there and had seen what had happened. 5. Incident 4: child A said that when she was in year 7 or 8 she had been suspended from school. She said that she was "pretty shitty" because she had only just been suspended when she "got suspended again". She said she got home and the applicant's wife took her IPod and said she was going to change her Facebook password, but child A would not give her the password. So "like usual" she, child A, "left to calm down". She said it was 9 o'clock at night and she thought the applicant had locked all the doors and would not let her out. So she climbed out of the window and the applicant pulled her back. He pulled her back by pulling her legs. Child A said she ran to the verandah as she wanted to get out the backdoor. She said the applicant pushed her onto the back verandah. She said he hit her in her stomach with his fist. She said she went to slit her wrists when the applicant hit her again in the mouth and held her close by her arms. She said she was able to get one arm loose and she tried to get the razor she had dropped on the lounge. The applicant got the razor and child A left. She went to the train track across the road. She said her neighbour Ms R rang her as the applicant had rung her neighbour to see if the applicant was there. Child A went to the neighbour's house and around mid night she went home, climbed through the window and got some clothes and did not return for two to three days.

Child B's interview

1. As noted above, in his interview, in early May 2015, child B said that he had never noticed anything out of the ordinary between child A and the applicant. He did recollect going fishing with the applicant and said that sometimes child A slept in the applicant's car and he did not recollect anyone else sleeping in the car with child A.

The applicant's August 2015 interview

1. In his interview with police on 26 August 2015, the applicant said he did not at any time deliberately touch child A between the legs and her vagina when she was sitting on his knee. He said child A and the boys would sometimes sit on his kneecap. He denied ever touching her vagina.
2. The applicant acknowledged that he had been in child A's room sometimes when she called. He said a lot of the time child A was in the loft in her room and he never went up there because he could not climb the ladder. He denied "fingering" her. He also denied that he ever sat on child A's bed and while he had a hand on her leg he masturbated. The applicant explained that this was not possible following his accident many years ago. Since then he has been impotent and could not get an erection.
3. He said he goes to bed early as he is up very early in the morning to go to work - he said he never misses a sunrise.
4. The applicant said he and his wife were aware the applicant was sneaking out at night because the window was broken. He said he thought he had a good relationship with child A. He said he told her that he and his wife could not put up with her going out of the window as they would not know if she was going to be "sexually assaulted or abused". He said she came back in.
5. He denied he had "fingered" child A as alleged in incident 1. He said that when this incident was alleged to have occurred they were on an annual family holiday together.
6. The applicant acknowledged he went fishing with the boys. He said sometimes child A and his wife came. He denied he had ever touched child A as alleged in incident 3.
7. The applicant acknowledged that there was a night where child A "went off" and was "over her tree". He said she was like "trying to commit suicidal (sic)". He said he held her tight until she calmed down. The specifics of allegation 4 were not otherwise put to the applicant.

The applicant's December 2015 interview

1. In December 2015, the FACS officer who had interviewed child A, interviewed the applicant. Also present at that interview was a FACS note taker and the applicant's wife. The abovementioned four incidents were put to the applicant at that interview. In regard to incident 1, the applicant said that this was an "unbelievable allegation". He said he did not enter her room unless he was taking a tablet to her. He explained that she had a loft bed where she slept and that there was a ladder to get onto the loft and a fire pole to get down. He also said that in January 2015, when child E was visiting, child A put her queen bed back in the room where she and her friend slept during the friend's stay.
2. In regard to incident 2, the applicant said he would not enter child A's room "unless something unforseen had happened". He said he would go into her room to wake her up to go to school.
3. In regard to incident 3 the applicant denied the allegation and said he did not recall a time when he went fishing with only child A and child B. He said child C often went with them. He said he never slept in the "ute" but did recollect that on one occasion he slept "on the back of the truck with the kids". He said the family each had a swag and would usually set them up on the river bank.
4. In regard to incident 4, the applicant's wife said she did not recollect an occasion when she tried to take child A's Ipod from her and change her password. The applicant also denied physically assaulting child A. He said that the only time he held child A was because she was punching, kicking and biting when she came home from Ms X's home. He said child A looked like she had taken something and after he held her she went to the tree house in the back paddock before coming home. He said there was never a fight where he tried to take a razor blade form child A. He said he had never seen child A with a razor blade except the one she used to shave her legs.

Statement of the applicant's wife (October 2015)

1. In her statement the applicant's wife explained the set up of the house and who slept where. She said that just before New Year 2014/2015, a former foster child, child E visited them at their home. She was there until 9 January 2015 and two days later went with them on a family holiday. They were there until 16 January 2015, when she, the applicant, child A, child C and child D went to another holiday location until the Wednesday or Thursday of that week (i.e. 21 or 22 January 2015).
2. The applicant's wife explained that about a week after they returned, child A left their care. She said she had never seen anything inappropriate between her husband and child A.
3. The applicant's wife also confirmed the applicant's evidence that he was impotent due to an accident many years ago.

Statement of Ms A (October 2015)

1. In her statement, Ms A, a former foster child of the applicant and his wife, said she moved out of the home of the applicant and his wife when she was 18 years of age. At the time she moved out, child A was about 11 years of age. She said, when growing up, child A had mood swings, which she sometimes thought to be chaotic. She said child A was always competing for attention.
2. Ms A said that during the time she lived with the applicant and his wife, she never saws anything inappropriate between the applicant and child A. She said had she seen something she would have said something.
3. Ms A said that after she left the applicant's home she would visit every 6 to 3 months. She said child A's outbreaks became worse when she was visiting. She said that some time in March 2015, child a rang her and said "Do you believe me about Dad?" Ms A said she responded by saying "No, I don't." Ms A said child A started yelling and swearing at her about not believing her.

Statement of child E (March 2016)

1. In her statement, child E, a foster child and school friend of child A, said that she did not notice anything unusual between the applicant and child A while she was staying there late December 2014 and during January 2015. She said that after child A had left the care of the applicant and his wife she had telephoned her and told her that she would wake up on occasions and the applicant would be in her bedroom and "his hands would be down her pants". She said "I was suspicious about what [child A] told me as I didn't notice anything happened when I was staying there and when she told me I didn't believe it happened";

Statement of Ms R (March 2016)

1. In her statement, Ms R, who lived in the same neighbourhood and had become a friend of child A, said that child A use to walk past her place to get the school bus. She said she started talking to child A more and noticed she was running away from the house a bit. She said she noticed that the relationship between the applicant and child A was "quite close". She said one afternoon when child A was at her house she had her suspicions something wasn't right between child A and the applicant in their relationship. She said child A told her she was going to stay with her for the night as she was not going home. She said she asked child A "has [the applicant] been tampering with you?" She said child A looked at her and burst out crying and said that the applicant came into her room when his wife and the boys were asleep and he "fingers" her and "touches" himself. She said she knew the applicant was in child A's room because when she was on the phone to child A sometimes at night she would hear the applicant knock on her door and say "Aren't you asleep yet".

Consideration

1. The applicant is not a "disqualified person" and there is no statutory presumption that he poses a risk to the safety of children: see WWC Act, s 28(7).
2. This means that the general principle of administrative law applies in that neither party bears a burden of proof in establishing that the decision of the respondent was, or was not, "the correct and preferable" decision: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]-[40]; BSR v Office of the Children's Guardian [2015] NSWCADTAD 264 at [17] and BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32].
3. However, where a party raises a specific fact for consideration "a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge": see Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 at [18].

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

1. In considering the seriousness of the matters that caused the cancellation of the applicant's clearance it is necessary for us to consider whether we can be satisfied, on the balance of probabilities, that the applicant engaged in the acts and omissions as alleged by child A: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [30] and [33]. If we are not so satisfied, it is necessary for us to consider whether we can be satisfied that the allegations made by child A did not in fact occur, or whether the circumstances surrounding the allegations made by child A are such that there is risk to a child: see BKE supra and M v M [1988] HCA 68; (1988) 166 CLR 69.
2. We accept that the FACS officer who interviewed child A, in March 2015, found that her account of events were consistent and believable. However, this does not mean that the allegations were proven, on the balance of probabilities, as was recognised by the officer when conducting her Assessment in mid May 2015.
3. As we have noted, the Assessment of the FACS officer was made before there was any further investigation into the matter.
4. We have considerably more material before us, including the Police Brief (i.e. the May 2015 interview with child B, the October 2015 interview with the applicant and the 2015 and 2016 statements obtained by police) and we have had the benefit of hearing and observing the applicant, his wife and Ms A, give evidence and being cross-examined by counsel for the respondent.
5. In light of the applicant's ongoing and consistent denials of the allegations, together with the evidence of the applicant's wife and Ms A, we are not satisfied that it is more probable than not that the applicant engaged in the conduct as alleged by child A. That is, we agree with the conclusions reached by the LWB investigator.
6. While the material before us may cast some doubt on what was alleged by child A, in our opinion, given the seriousness of the allegations that were made it is nevertheless necessary to determine whether the applicant poses a risk of harm to a children if he were to be granted a clearance and then assessing the magnitude of that risk: see M v M [1988] HCA 68; (1988) 166 CLR 69, at [24]. We have dealt with this issue in detail below, having regard to all the s 30(1) factors.

(b) The period of time since those offences or matters occurred and the conduct of the person since that time

1. The alleged events that gave rise to the cancellation of the applicant's clearance are alleged to have been ongoing for eight years prior to child A leaving the care of the applicant and his wife. It is now more than three years since child A left the care of the applicant and his wife and during that time the applicant has not been charged, or come to the attention of police or any other authority.

(c) The age of the applicant at the time the offences or matters occurred

1. At the time of the alleged abuse, the applicant was aged between 55 and 63 years of age.

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

1. At the time of the alleged abuse, child A was between 6 and 14 years of age. Child A was vulnerable in that she had been removed from her biological parent/s due to abuse and ongoing harm. She was placed in foster care and was dependent on the applicant (and his wife) to protect her from abuse.

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

1. There is a 49 year age difference between child A and the applicant. The applicant (and his wife) was the long-term foster carer of child A. Child A had been in care of the applicant since she was 3 years old, and she referred to him as her "Dad".

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

1. The applicant was aware that child A was a child.

(g) The person's present age

1. The applicant is currently 67 years of age.

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

1. The applicant has no criminal record. He has continued to operate his own business which does not involve working with children.
2. When the allegations were made against the applicant he was informed that his longstanding involvement as a volunteer member of the NSW Rural Fire Service was suspended pending the outcome of the investigation into the allegations. After the hearing of his application, on 3 October 2017, the applicant filed and served an affidavit to which he attached a letter from the NSW Rural Fire Service advising that his NSW RFS Membership had been reinstated.

(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

1. The applicant relied on the oral and written evidence of Dr Emma Collins, in regard to this factor. Dr Collins, a Forensic Psychologist, assessed the applicant in May 2017.
2. In her report Dr Collins made the following remarks in regard to a risk assessment generally and the limitations of such an assessment in the case of the applicant who has not been charged or convicted of an offence: 38. … [Whilst] risk assessment can provide important information about how to manage risk, the practice in and of itself has limitations. Firstly, the base rate of sexual offender recidivism is low, which hence renders the prediction of such an uncommon behaviour as difficult. Secondly, risk assessment actuarial tools are normed upon groups of individuals and hence it is always unclear how any one individual will perform relative to the group that was studied. Furthermore, risk assessments are time-limited and only as good as the information on which they are based. They can change as new information becomes available, and all risk assessments have a discernible level of error built into them. Risk assessments help to remove less clinical factors such as "gut feeling" and prejudice that can influence judgement. Although research typically highlights the advantage of structured risk assessment over unstructured clinical judgement as aforementioned, the evidence supporting such assessments is moderately valid only. Therefore, decisions about risk are best made with multiple sources of data available, where a formal risk assessment is only one such source of data … 39. The reader should consider that application of risk assessment in [the applicants]'s case has further limitations due to his absence of criminal (including sexual offending) antecedents. Current recommendations suggest that in such cases the evaluator should pay particular attention to: possible sexual deviancy; unstable personality structure; substance abuse issues; psychopathology; poor interpersonal boundaries; and any previous (even substantiated) allegations, as these are factors that may put the welfare and safety of children at risk …"
3. Dr Collins explained that the measure typically used for the purpose of actuarial assessment, the STATIC - 99R, could not be used in the case of the applicant as he had not been charged, or convicted of a sexual offence. Instead, she used the Risk for Sexual Violence Protocol (RSVP) to assess the applicant' s risk. Dr Collins said that the risk factors that applied in this case were: 1. if one were to accept the allegations to be true, the applicant used both psychological and physical coercion over a period of years against child A. The applicant's extreme denial of the allegations and lack of insight into the factors that placed him at risk of engaging in the sexual misconduct; 2. alternatively, if one were to accept that the allegations were not true, the applicant does not score on any risk factors across the RSVP.
4. Dr Collins went on to identify the following as protective factors of risk by the applicant: 1. his long-term intimate relationship that shows a capacity for emotional connection; 2. his stable employment history; 3. his involvement in a number of community pursuits over the years and his endorsement of pro-social peer friendships; 4. his demonstrated good self-discipline, problem solving and coping, as evidenced by maintaining his own business for a number of decades; 5. lack of substance misuse; and 6. absence of negative attitudes towards desistance or treatment.
5. Dr Collins concluded that, on the information she was provided, the applicant did not pose a risk of sexual recidivism. That is, he did not pose a specific risk to children.
6. During cross-examination it was put to Dr Collins that her assessment was of limited utility as she had been unable to apply the accepted actuarial assessment. Dr Collins did not agree that this was the case. She said that in her opinion it was still of some merit in assessing risk. She said, based on the information available to her, while the applicant does not score on any risk items, there are a high number of protective factors present.
7. When asked whether the applicant had a "low level of insight into a child's emotional needs" given his response of "I really don't know" to a question about what effect a long period of foster carer abuse would have on a child, Dr Collins said she had some concerns about a response of this kind. However, she went on to say the applicant was not "a particularly emotional man" but presented as "a somewhat practical man". She also said that his response should be taken within context in that it was not an experience he had encountered. She said she saw that the applicant was genuinely distressed around what was happening to the children in his care and that his response did not "particularly surprise" her "in the context of his, perhaps more practical orientation".
8. Dr Collins also said that the applicant did not present as being deliberately defensive or deceptive and did not appear to have any clinical problems.

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

1. As we have noted, the applicant continues to deny the allegations. In his affidavit filed and served for the purpose of these proceedings, the applicant reiterated and elaborated on what he said during his March and December 2015 interviews.
2. During cross-examination, the applicant continued to say that the events as alleged by child A did not happen. He was cross-examined about other matters pertaining to his care of child A. He said he "surmised" that she had been sexually active after he had been told by a neighbour that child A was escaping at night through her window and was meeting up with boys in a car. While he was not responsive to a question about a failure to raise this with LWB, we note from his 2015 interview with police, he said he spoke to child A about sneaking out and that he tried to fix the window so that she could not escape.
3. As we have noted above, the applicant was asked about what effect a long period of foster carer abuse would have on a child. In our opinion, we agree with Dr Collins that the applicant's response must be viewed in context and we also agree with her assessment of that response.
4. In her affidavit filed and served for the purpose of these proceedings, the applicant's wife reiterated and elaborated on what was contained in her October 2015 statement for police and what she is recorded as having said during the course of the applicant's December 2015 interview. She explained in some detail the circumstances in which she and the applicant were informed about child A escaping through her bedroom window and provided a detailed account of events in January and February 2015 concerning child A and the family. She reiterated that she did not observe the applicant engaging in conduct as alleged by child A. She said she did not believe it happened. The applicant's wife also addressed issues that the respondent had raised about her care of the children more generally in its submissions.
5. During cross-examination, the applicant's wife was taken to complaints that had been made in 2009 and 2010 about the house being untidy and being infested with fleas. The complaint about untidiness and not wanting to invite friends home had been made by Ms A, who was a child in the applicant's care at that time.
6. Ms A also reiterated and elaborated on what was contained in her March 2016 statement to police; namely she did not witness any sexually abusive behaviours by the applicant towards child A, and she again spoke positively of the applicant's care. During cross examination, Ms A was asked about the 2009 complaint she had made. She said that at that time she was going through "personal stuff", which had nothing to do with the applicant and his wife, and was "acting out". She explained that the house was no different to any other house with children. She said that she was "taking out" her "personal stuff" on the applicant and his wife, the people she has always loved the most.
7. The applicant also relied upon an affidavit of Ms B, a LWB case worker overseeing the visits between the applicant and the two younger boys who were removed from his and his wife's care following the allegations of child A.
8. The applicant also provided a number of character references, including from another former foster child.

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

1. The respondent remains of the view that notwithstanding the LWB Report, the evidence is such that we can be satisfied that the applicant poses a real and appreciable risk to the safety of children. In this regard the respondent submits that there is genuine evidence that conduct as alleged did occur. In this regard the respondent pointed to child A having been "most definite and consistent in her allegations of abuse", when she made her disclosures and was interviewed in March 2015. The FACS officer, it was noted, found the there was no reason to disbelieve child A and that on the balance of probabilities the applicant was considered to be a person causing harm (PCH). It was contended that we should place considerable weight on this evidence.
2. The respondent also submitted that the applicant and his wife had demonstrated a lack of insight into the effects of sexual abuse on a child by a foster carer. It was contended that the applicant and his wife failed to take any protective measure when they "surmised" that child A was sexually active. The respondent was also critical of the applicant's wife in that she considered an incident of child A's violent and threatening behaviour, as described in her affidavit, to be normal teenage conduct and did not feel it was necessary to report this to child A's case worker.

Can we be satisfied that the applicant poses a risk to the safety of children?

1. For the purpose of assessing risk we have taken into account the decision and findings of JIRT (i.e. the FACS officer of JIRT). This decision was made in mid May 2015. It was a decision made primarily on what child A had said and how she presented during her March 2015 interview. It appears to have been a decision primarily for the purpose of assessing risk at that time and whether child A was in need of protection. Given the serious nature of the disclosures, it was a decision appropriately made at that time. It was also a decision that was made with the knowledge that the disclosures were subject to an investigation by police, which did not conclude until mid 2017. In this regard the applicant was not interviewed until October 2015, some five months after JIRT made its decision.
2. While we have taken into account the JIRT decision and findings we must assess risk, as at the date the evidence was closed in this application, by having regard s 4 of the WWC Act, the matters set out in s 30(1) of the WWC Act, and all the material that is before us.
3. In this regard we note child A has not retracted her allegations, which remain untested.
4. The applicant has at all times denied that the events, as alleged by child A. He said they were "unbelievable" and did not occur. The applicant's wife also states that she has not seen the applicant behave inappropriately towards child A. The younger children when questioned by FACS investigators about child A's allegations also reported no occasions of abuse. Ms A and child E have made statements to the same effect. The evidence of the applicant, his wife and Ms A has been tested in these proceedings.
5. In this application, we found the applicant presented as being genuine and gave his evidence openly and to the best of his recollection. At times he gave evidence against his own interest. He has at all times been co-operative and his denials have also been consistent. While he denied the allegations he did not blame or denigrate child A. He appeared to be genuine about his care for the many children that have been in his care and that of his wife. However, he also appeared to be puzzled about the allegations that had been made against him.
6. We also found the applicant's wife gave open and frank evidence and that Ms A was genuine in the evidence that she gave about the love and care she had received from the applicant and his wife while in their care.
7. We note the evidence of child B and child E as presented to police was that they did not witness the applicant acting inappropriately towards child A.
8. We note that Ms R had sought to have child A and her brothers placed into her care.
9. We have also taken into account: 1. the fact that the applicant was never charged with any offence in regard to the allegations; 2. the applicant's long history of foster carer to many children and his volunteer work more generally. In regard to his role as an authorised carer we note that it is likely that a number of children placed into his care and that of his wife would have come from difficult backgrounds and exhibited challenging behaviours; and 3. other than the disclosures made by child A, there have been no reports of abuse by the applicant of children in his care.
10. We have placed considerable weight to these matters which are in the applicant's favour.
11. We have also taken into account the evidence of Dr Collins and her assessment of the applicant in that she was not able to identify any specific risk the applicant might pose to children. We note the protective factors against risk, in the case of the applicant, that were identified by Dr Collins. These are factors that have been in existence for many years, well before the events alleged by child A.
12. We understand the respondent has concerns about the applicant and his wife having "surmised" that child A was sexually active and yet they failed to report this to LWB. Children being sexually active at a young age is a difficult issue for parents and we agree where children are placed in foster care, it is the responsibility of the authorised carer to report and seek guidance on this from the agency responsible for managing the placement of the child. On the material provided by FACS it would appear the applicant's wife had sought guidance on this issue in regard to another child in their care and it was an issue the agency was also well aware of. While we agree with the respondent that the applicant or his wife should have raised their suspicions with LWB, we note that they did notify LWB of child A's escapes during the night and her meeting up with boys. What might have been said to child A by her carer is not disclosed in the material before us. In any event, on this issue alone, we do not find that the applicant or his wife were not protective of the children in their care.
13. Accordingly, for the reasons set out above, we cannot be satisfied that, as at the close of evidence in this application, that the applicant poses a real and appreciable risk to children. That is, on the material before us and the requirements of ss 4 and 30(1) of the WWC Act we are not satisfied that the applicant poses a real and appreciable risk to children.

Are we satisfied 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 affected person is engaged in any child - related work?

1. It is accepted that the "reasonable person" in s 30(1A)(a) of the WWC Act would not approach the matter with a closed mind and would apply an objective test to the material that is before the Tribunal and the submissions that have been made: see CZZ v Children's Guardian [2018] NSWCATAD 56, at [142] to [145]. Additionally, a reasonable person would approach the issues as to risk in the same manner prescribed in s 30(1) of the WWC Act.
2. For the reasons set out above, we are satisfied that a reasonable person, being acquainted with the material before us, would allow his or her child to have contact with the applicant as contemplated by s 30 (1A)(a). That person would have regard to the seriousness of the allegations made by child A, but would not be satisfied, on the balance of probabilities, that the applicant engaged in the behaviour as alleged. That person would also have regard to the applicant's consistent denials of the allegations and his co-operation with police and the authorities generally; the fact that he has never been charged; the absence of any other adverse findings of inappropriate behaviour towards children during the lengthy period he has been an authorised carer; the fact that child A's siblings, child E and Ms A had never seen the applicant behave inappropriately and the assessment of Dr Collins.

Is it in the public interest to make an order?

1. In ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162, at [20], the High Court (per French CJ, Gummow and Crennan JJ) said: "The term "in the public interest" is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question."
2. In ZZ v Secretary, Department of Justice [2013] VSC 267, at [206], Bell J noted that the Victorian Working with Children Act plainly identified the primary public interest to which it was addressed. The main purpose of which is the protection of children from sexual or physical harm and this was achieved by "ensuring that people who work with, or care for children have their suitability to do so checked by a government body."
3. In our opinion, the same applies to the WWC Act. That is, the public interest consideration in s 30(1A)(b) is a broad concept with the main purpose of protecting children from harm in a child-related work environment, which is achieved by not permitting certain persons to engage in child-related work and requiring those who do engage in such work to have a clearance (WWC Act s 3). Bell J went on to explain that the concept of what is in the public interest can change with time in response to changing economic and social circumstances and cannot be "confined by inflexible specification."
4. In our opinion, based on our findings that the applicant does not pose a real and appreciable risk to the safety of children, it is in the public interest to make the order sought.
5. The applicant has been required to relinquish the care child A's younger siblings, who have been in his care since they were babies. He has also had to cease some of his long held volunteer duties. His role as a volunteer with the NSW Rural Fire Service has however, been re-instated. Whether his role as an authorised carer is restored is a matter for LWB. However, for the purpose of this applicant, in our opinion, for the reasons we have given, it is in the public interest to make the order sought.

Conclusion

1. For the reasons set out above, we are not satisfied that the applicant does pose a risk to the safety of children and we are also satisfied of the matters prescribed in s 30(1A) of the WWC Act. Accordingly, pursuant to s 63(3)(a) of the Administrative Decisions Review Act 1997 we have decided that the decision of the respondent to cancel the applicant's clearance is not the correct and preferred decision and should be set aside.
2. We note the WWC Act does not make provision for a cancelled working with children check clearance to be restored on review or reconsideration. Section 22(1) of the WWC Act provides that a clearance ceases to have effect after 5 years unless it is sooner cancelled or surrendered. Section 22(2) makes provision for the holder of a clearance to be able to apply for a "new clearance" within 3 months before the existing clearance expires.
3. Where a person has his or her clearance cancelled, s 13A of the WWC Act places an 5 year embargo on that person from reapplying for a new clearance, unless one of the prescribed circumstances arise. These do not include circumstances such as these where the Tribunal sets aside a decision to cancel a person's clearance. However, where, on external review the Tribunal sets aside a decision of the respondent to cancel a person's clearance, the embargo provisions in s 13A arguably no longer apply and allow for a fresh application to be lodged.
4. In this case, the applicant was issued with his clearance in August 2013. Hence, his clearance would in any event have expired by August 2018. Given the protracted history of this application it is unclear whether the applicant wishes to make a further application for a clearance. In the event he does make such an application, subject to any fresh evidence concerning a new "trigger event" or a "disqualifying event", we recommend the respondent have regard to the findings we have made when assessing any fresh application the applicant may make for a clearance.

Orders

1. Accordingly, we order: 1. Time within which the applicant is to lodge his application for external review is extended to 23 December 2017. 2. The respondent's decision made on 31 October 2016 to cancel the applicant's working with children check clearance is set aside.

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

Amendments 17 September 2018 - paragraph 142 line 1 "not" deleted 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: 17 September 2018