DGS v Children's Guardian

NCAT Administrative and Equal Opportunity|2018-07-23

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 Children's Guardian v CKF [2017] NSWSC 893 CJT v Office of the Children's Guardian [2016] NSWSC 738 CLK v Children's Guardian [2016] NSWCATAD 183 Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 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 Commissioner for Children and Young People v VR [2012] NSWSC 1385 CSZ v Children's Guardian [2017] NSWCATAD 57 Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856 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 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 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 Office of the Children's Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re A Solicitor's Clerk [1957] 1 WLR 1219 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 Robertson v City of Nunawading [1973] VR 819 Secretary, Department of Justice v LMB; Secretary, Department of Justice v P M Y [2012] VSCA 143 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 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: DGS (Applicant) Children's Guardian (Respondent) Representation: Counsel/Advocates: A Luong (Applicant) I Fraser (Respondent)

Solicitors: The Law Shoppe (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 201700345435 Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Introduction

The applicant is known by the pseudonym "DGS" in these proceedings in order to protect the identity of the applicant. Disclosure of the identity of DGS would also incidentally identify children associated with the applicant. It is considered appropriate therefore to protect the identity of the applicant and to make a nonpublication order.
The applicant applied for a Working with Children Check Clearance on 20 December 2016.
The respondent has determined that the applicant poses a risk to the safety of children and refused to grant a clearance.
DGS filed in the Tribunal an application for review under section 27 of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act") concerning the decision of the Children's Guardian, made and notified to DGS on 19 October 2017, to refuse to grant a Working with Children Check Clearance. That decision is the subject of this review. The application for review under section 27 of the Act in the Tribunal was filed within time on 15 November 2017.
The respondent opposes the application.
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 20 December 2016 after the commencement date of those 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.
The Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW) amendments to the Act commenced on 25 October 2016. In particular the amendments made to section 30(1) do not apply to or in respect of a review (or an appeal arising from a review) if the review commenced before that amendment and that provision, as in force immediately before that amendment, continues to apply to and in respect of any such review or appeal: Schedule 3 Part 5 clause 25 of the Act. This review commenced after the commencement of those amendments.
The Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) ("2018 Amendment Act") was given assent on 18 April 2018 and relevantly for this review the amendment to subsection 30(1)(h) and insertion of subsection 30(1)(i1) of the Act both commenced on 1 June 2018. Section 5B of the Act was also inserted at the same time.
There were no transitional provisions in the 2018 Amendment Act.
Because of the terms of section 30 of the Interpretation Act 1987 (NSW) the amendments will be applied: see SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 per Basten JA (with whom Ward and Simpson JJA agreed) esp. at [33]-[36]. None of those amendments purport to affect or vary in any material way any rights, liabilities, or obligations of any person but simply specify existing factual matters which must be considered by the Tribunal.
The antecedent factual matters are the basis for making a determination as to the future grant of the Working with Children Check Clearance: see Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 at 31, per Jordan CJ; Robertson v City of Nunawading [1973] VR 819 at 824, per Victorian Full Supreme Court; Re A Solicitor's Clerk [1957] 1 WLR 1219; La Macchia v Minister for Primary Industry (1986) 72 ALR 23 (Full Court of the Federal Court); Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856. The presumption against retrospectivity does not apply in these circumstances. This determination is also appropriate since the nature of the review and 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]. This determination is also consistent with the reasoning in CHB v Children's Guardian [2016] NSWCATAD 214.
The applicant was subject to a risk assessment by reason of section 14 and section 15(1) of the Act. The applicant was charged in 2013 in relation to 2 counts of the offence of sexual intercourse with a child under 10 contrary to section 66A of the Crimes Act 1900 (NSW) and one count of the offence of aggravated indecent assault contrary to section 61M of the Crimes Act. All the offences were alleged to have been committed against the applicant's daughter who was four years old at the time of the alleged offences. In 2015 the applicant was acquitted by jury verdict in the District Court. As a result, the applicant was subject to an assessment requirement by reason of Schedule 1 clause 1(1)(b) and Schedule 2 clauses 1(1)(e) and 1(1)(h) of the Act. Following 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 in the education child related employment sector, although if the clearance is granted he can work in any child related work.
The applicant is without a Working with Children Clearance now, preventing him from working in "child-related work": subsections 6(2)(f), 6(2)(g) and section 8 of the Act; clause 10 of the Child Protection (Working with Children) Regulation 2013. That means he cannot work in the education child related employment sector.
The application for review was heard orally by the Tribunal on 23 July 2018. Further written submissions were filed after the hearing by both parties. The final submissions were filed by the respondent on 7 August 2018.
The review will comply with the Act provided that the matters which must be considered in section 30 of the Act are taken into account: 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 (NSW). 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 continued and made in accord with the current practice of the Tribunal.
General Member E Hayes disagrees with the decision to which I have come. As the provisions of section 57 of the Civil and Administrative Tribunal Act apply where there is a division of opinion, the decision to which I have come will prevail. I have had the benefit of reading that opinion in draft and it has not respectfully caused me to change my assessment of the evidence before the Tribunal.

The evidence relied upon in the hearing

The applicant and respondent relied upon a large volume of documents which were tendered as Exhibits (comprising over 1540 pages) as follows: 1. Affidavit of the applicant filed 9 March 2018: Exhibit 1; 2. Applicant's outline of submissions filed 26 June 2018 (which is not treated as evidence but is marked as an Exhibit for later identification): Exhibit 2; 3. Applicant's submissions in reply filed 16 July 2018 (which is not treated as evidence but is marked as an Exhibit for later identification): Exhibit 3; 4. Administrative review application form filed 15 November 2017 and the Annexures: Exhibit 4; 5. Documents filed by the respondent on 25 January 2018 pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) in two volumes comprising 554 pages: Exhibit 5; 6. Documents filed by the respondent on 5 April 2018 comprising 473 pages: Exhibit 6; 7. Additional documents filed by the respondent on 2 May 2018 comprising 200 pages: Exhibit 7; 8. Documents filed by the respondent on 6 July 2018 - Dr Lennings' report released by the Family Court of Australia to the parties in these administrative review proceedings: Exhibit 8; 9. Documents produced under summons and filed by the respondent on 11 July 2018 comprising 125 pages: Exhibit 9; 10. Respondent's submissions on final hearing filed 11 July 2018 (which is not treated as evidence but is marked as an Exhibit for later identification): Exhibit 10.
In addition, the applicant relied upon written submissions filed 31 July 2018. The respondent relied upon its further submissions filed on 7 August 2018.
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 is 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 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.

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." That is not the circumstance in relation to the applicant.
The definition of "risk to the safety of children" is a reference to a real and appreciable risk to the safety of children: section 5B of the Act.
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 as previously identified are offences referred to in schedule 1 clause 1(1)(b) of the Act. The detail of the charges will be referred to later in these reasons.
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 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 [30]-[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."
It is also not necessary for the Tribunal to make any findings that allegations not the subject of convictions in fact occurred: Children's Guardian v BQJ [2016] NSWSC 869 at [64] per Button J.
In Office of the Children's Guardian v CFW [2016] NSWSC 1406, Harrison J at [14]-[17], His Honour considered that the Tribunal should first consider whether positive findings could be made about any alleged acts of wrongdoing on the balance of probabilities or secondly, whether the Court or Tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding that something occurred will have a significant impact upon the ultimate decision. Even if there is no positive finding able to be made on the evidence presented, the Tribunal is required to consider questions of risk which may be indicated by all of the facts. In Children's Guardian v CKF [2017] NSWSC 893, Davies J stated that whether a finding is made or not is a factor which is to be weighed up in assessing whether the person poses a risk to safety of children.
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. The applicant in this matter does not seek an approval subject to conditions.

The Issue

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

Considerations and the Evidence

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 criminal history 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, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (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 criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (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 recited under subheadings referring to 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; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32. 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 around the applicant's conduct: section 63 of the Administrative Decisions Review Act.
Even though the provisions under which the Tribunal operates don't exclude the reception of hearsay evidence, the applicant took objection to material which is clearly hearsay contained within the exhibits if that hearsay is treated as truth of the allegations contained within that evidence. The Tribunal admitted that material into evidence on the basis that the material does not provide evidence of the truth of the allegations: that material is simply evidence that allegations have been made. The weight of the evidence is a matter for the Tribunal to determine after hearing any testing of the evidence and the relevant submissions of the parties.
The respondent issued a summons for the attendance in person of the applicant's former wife. There was evidence given by her in the Family Court and the applicant relied upon a document signed by her in relation to his application before the Children's Guardian. Even though the nature of her evidence to the Tribunal was not identified through the provision of a more recent statement or affidavit, it was clear that she was able to be questioned about relevant matters concerning her previous evidence and written material. The respondent had initially requested the applicant to have the witness attend the hearing because the applicant had relied upon her signed document and the Children's Guardian had contacted her by phone and obtained further information from her. In the end, a summons was issued for her to attend and she attended the hearing. The applicant objected to her attendance and to her giving further evidence. The evidence is clearly relevant to this review application because both parties in different ways rely upon her evidence. The parties appropriately were required to question the witness in order to accord her fairness in the Browne v Dunn (1893) 6 R 67 (HL) sense: see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal is obliged to act fairly in the particular circumstances before it and 'to avoid practical injustice', as discussed in a different statutory context by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]-[38].The Tribunal determined that any prejudice to either the applicant or the respondent by the nature of the evidence that the witness gave could be raised by that party after she had given evidence and been questioned. In the result neither party identified any prejudice arising from the oral evidence given by the witness.
The parties have had the opportunity and have made submissions about the reliability and weight to be given to the evidence of the applicant's former wife, and in relation to any other evidence.
The applicant also raised through his lawyer an objection to the presence of a person in the Tribunal hearing room who happened to be the father of the witness. That is, the applicant's former father-in-law. After hearing submissions about this issue, it was determined that the principle of open justice outweighed any perceived prejudice to the applicant by the presence of that person in the Tribunal hearing room. Not only must justice be done but it must be seen to be done. That person was not giving evidence at a later point and was there merely as a support person for the witness. It was explained that the non-publication order is in place and that protects the interests of those persons who may be adversely affected by the publication of their details and not only specifically protects the children of the applicant and the witness, but also protects the privacy of the applicant.
The allegations made against the applicant have been investigated by a number of bodies and ventilated in various fora including: 1. the Department of Family and Community Services; 2. the New South Wales District Court in criminal proceedings which resulted in the acquittal of the applicant after a trial which took a number of days; 3. the Family Court before which a final hearing commenced and completed by way of consent orders after under two days of evidence; 4. Dr Christopher Lennings who completed an assessment report in the Family Court proceedings and which was released by the Family Court for the purposes of these review proceedings; 5. the New South Wales Department of Education which completed a reportable conduct investigation in 2016 and 2017.
The allegations are summarised as follows: 1. That there was family violence in the relationship between the applicant and his former wife reported to either Family and Community Services and/or the NSW police between May and September 2012. 1. The applicant was verbally abusive towards his former wife in front of the children. 2. The applicant punched his former wife in the arm. 3. The applicant swore at his daughter and slapped her across the face. 4. The applicant pinched his daughter on the vagina or bottom. 5. The applicant frequently bit or pinched the children. 6. The applicant assaulted his former wife in front of the children, including a report that the daughter was so traumatised from witnessing domestic violence that she was imitating the applicant's violent behaviour towards her toys. 7. The applicant smacked his daughter across the back of the head after she rocked a chair over her brother's foot. 8. The applicant kissed the children whilst he had herpes. 9. The daughter described her father as "angry" and said in her interview with the police "he just gets angry and tells mummy what to do and what he wants her to do." 10. The daughter told Dr Lennings in 2016 that if the applicant did not like what her mother cooked he would throw the plate at her mother. 11. The daughter told Dr Lennings in 2016 that the applicant "pinched her and made bruises on her mum and wasn't nice to the cat." 12. The daughter told Dr Lennings in 2016 that she knew these things took place because her mother and grandfather told her, however the daughter as recorded by Dr Lennings "was able to recall a direct memory of her father pinching her, but she was unable to recall any other context about that." 13. The applicant's son told Dr Lennings in 2016 as recorded by him that his father was mean and punches a lot, but said that his mother, and grandparents told him this. 14. The observations of the children during contact with the applicant identified instances of the applicant's son being physically violent towards the applicant and the applicant's daughter and swearing at them. It was noted in a supervised contact visit report in 2016 that the applicant's daughter disclosed that her brother hits her and scratches her, and that the applicant's son said "when I get angry I hit and scratch [my sister]. I hit her a lot." It is alleged that the children have modelled this behaviour and that this is a result of exposure to domestic violence. 1. The Department of Education investigation report concluded that there was insufficient evidence to sustain allegations that the applicant had pinched his daughter on the vagina in 2012 or slapped his daughter on the face as she was jumping on his son on a later date in 2012. However, the report concluded that there was sufficient evidence to find the following allegations sustained, although the first two did not meet the threshold for misconduct. 1. The applicant hit his daughter on the back of the head when she told her mother he had pinched his daughter on the vagina. 2. The applicant hit his daughter across the back of the head after she rocked a chair over the applicant's son's ankle, or she was about to do that. 3. The investigation report concluded that there was sufficient evidence to find that the allegation that the applicant put his finger inside his daughter's vagina sustained, which met the threshold for misconduct. However, the ultimate decision maker concluded that there was insufficient evidence to sustain any allegation, although the basis of the departure by the decision maker from the recommendations in the investigation report is not made clear. 1. Dr Lennings prepared an assessment report for the Family Court parenting proceedings in which the allegations of abuse were canvassed. Dr Lennings had interviews with both the applicant and the applicant's former wife, as well as both children. Dr Lennings also had access to the transcript of the criminal trial. Dr Lennings identified that for the applicant's former wife there were two issues in relation to the applicant. The first issue was the allegation of sexual abuse and the second issue was the allegation of family violence which preceded the timing of the allegation of sexual abuse. 2. The Family Court proceedings settled on the second day of the trial with consent orders after the applicant's wife had been cross-examined and was still under cross-examination. The trial judge's ex tempore reasons for judgment approving the consent orders contain five paragraphs on less than one page which address both the parenting and property issues. The court concluded that the orders which were sought by the parties, including the Independent Children's Lawyer who represented the children, were in the best interests of the children. The applicant's wife provided an affidavit dealing with the issues of risk posed by the applicant with his children. The applicant's wife gave evidence that professional supervision of the children for an extended period of time, provision for the applicant and her to attend parenting courses, and injunctions to ensure the children spent time with the applicant in a safe environment would contain "appropriate and sufficient" safeguards to address the risk issues. The trial judge accepted that evidence and made the proposed consent orders which are still in force.
In summary form, the sexual abuse allegation is that the applicant touched his daughter's vagina on three occasions and had digitally penetrated her vagina. The allegations were reported by the daughter to her grandmother. The grandmother later told staff at the childcare centre. The allegations were then reported to Family and Community Services and the daughter was subsequently interviewed on two occasions by the Joint Investigation Response Team (JIRT).
Approximately a week or so later Family Community Services "substantiated" the allegation of sexual abuse and identified the applicant as 'a person causing harm'. There were subsequent reports made to Family and Community Services about disclosures said to have been made by the daughter. In addition to the allegations that the applicant had touched and penetrated her vagina, the daughter alleged that he had bathed with her naked, and a played game in the bath in which he sat her on top of his genitals in the bath whilst he was naked.
The daughter gave evidence in the District Court criminal trial and was cross-examined. The transcript of the 5 days of the District Court trial is contained within Exhibit 6. The daughter maintained that the applicant had touched her vagina on the inside: Exhibit 6 pages 187-208. The barrister appearing for the applicant cross-examined the daughter and challenged the allegation that the applicant had touched her on the vagina. The daughter responded to the challenge by insisting that he did touch her on the vagina. The later acquittal by the jury is consistent with the evidence not attaining the criminal standard of proof beyond reasonable doubt. The evidence of the daughter was not undermined by cross examination but she was very young when the events are alleged to have occurred.

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 applicant was not convicted of any offence. The applicant was acquitted of the criminal charges he defended in 2015.
The purpose of the risk assessment is to be protective of children and not punitive of the applicant. 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. A realistic assessment of the seriousness of the conduct is necessary to understand the risk issue.
In this matter the applicant was charged with offences which ultimately were dismissed after a criminal trial. Those matters also formed the basis of allegations of risk of harm posed by the applicant to his children in proceedings in the Family Court. There were no findings in the Family Court relevant to risk but orders were made by consent providing for a period of supervised time between the children and the applicant and sole parental responsibility to the applicant's former wife.
It was alleged that the female child disclosed to her grandmother that the applicant had been touching her vagina inside her underwear while placing his other hand inside his own pants. The Child Abuse Squad conducted an investigation and the applicant's daughter provided a statement which was electronically recorded. The applicant's daughter stated in the interview that the applicant had touched her three times. She gave detail of one of those incidents. The daughter described the applicant placing his hand inside her underpants and put his finger in her vagina. The daughter described it as quick and she said she spoke to her father saying: "Daddy what are you doing?" The applicant is alleged to have said: "It's mummy." The daughter is recorded to have responded: "I know it's not because I don't see mum." While she was explaining this in giving her statement the child used visual motions to indicate where her vagina is located. A body chart was utilised during that interview.
The applicant was arrested, cautioned and after he spoke to his solicitor he later declined to participate in an electronically recorded interview. It is recorded that the applicant said to the police after having the allegation communicated to him: "I don't know what you are talking about." That was the extent of any interview.
The matters which form the basis of the charges are objectively serious. The allegation that there was a penetrative sexual act involving the applicant's daughter who was aged about 4 at the time is very serious.
The allegations concerning domestic violence perpetrated by the applicant against his partner and child, and the exposure of children to domestic violence are also serious.

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

The alleged sexual abuse was said to have occurred in 2013. The allegations of domestic violence predated that period and occurred in the lead up to that period of time.
The applicant has not been convicted of any criminal offence.
The applicant, as a result of orders made in parenting proceedings under the Family Law Act 1975 (Cth), resumed contact with his children from July 2016 on a supervised basis and on an unsupervised basis from January 2017.
Since the applicant has resumed contact with his children there have been observations of apparent sexualised behaviours of the children generally and directed towards the applicant. The observations of the youngest child's behaviour at the contact visits show that he has been physically violent towards his sister and has also sworn. The older child has disclosed that the younger child hits her and scratches her. The younger child has said: "When I get angry I hit and scratch [the older child]. I hit her a lot." This raises concern about the psychological and behavioural impact of exposure of young children to domestic violence.
As the Tribunal has previously observed in CLK v Children's Guardian [2016] NSWCATAD 183 at [43] "...The deleterious and long lasting effect upon children of witnessing conflict and violence between adults in a domestic situation is now better known that it was in 1993. The exposure to adult violence and conflict constitutes behaviour capable of a classification as 'child and young person abuse' because of the harmful and negative psychological and emotional impact upon young children."

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

The applicant was aged between 38 and 39 years of age at the time of the relevant matters.

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

The children who were present in the home were aged 3 to 4 years for the older child when the sexual conduct was alleged to have occurred and the younger child was 18 months when charges were laid in 2013.
The Act requires protection of children until the age of 18 years.
The children were very young when the alleged conduct occurred. They were vulnerable because of their age and because they were entitled to expect to be protected by their parents from abuse and domestic violence. The applicant is alleged to have engaged in behaviour which relied upon his dominance over the children and his former wife. The children are vulnerable witnesses of conflict and domestic violence.
Dr Lennings assessed in his report to the Family Court that even if sexual abuse had occurred, "there does not appear to have been any significant psychological impact on [the daughter] of such abuse."
However, the police interviews contain clear and resolute statements from the daughter as to the alleged abuse. The daughter remains unshakeable in her conviction and Dr Lennings observed "regrettably confidence in a comment is not an indicator of its accuracy at her age."
The daughter's memory was now "fuzzy" but she was able to state to Dr Lennings that she knew the events occurred because her grandparents had told her that they did. It would therefore appear probable that the daughter will continue to believe that she was sexually abused by her father even if that abuse did not truly occur. The effect upon the daughter of that unshakeable belief is likely to cause her some psychological impact during her maturation.

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

The difference in age between the applicant and the children is 35 years.

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

The applicant knew that they were children because they were his children living in the home.

The person's present age

The applicant is aged 45 years at the time of hearing.

The seriousness of the person's criminal history and the conduct of the person since the matters occurred

The applicant does not have a criminal record. The applicant's conduct since the allegations which led to the charges is set out under other previous headings in these reasons.

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

The Children's Guardian did not contend in these proceedings for a positive finding that the disputed allegations of sexual abuse in fact occurred. The respondent submitted that the Tribunal would "at the least hold a lingering doubt as to whether the applicant perpetrated at least some of the conduct" alleged against him.
The applicant submitted that he denies committing the alleged sexual offences and that there is therefore no likelihood of a repetition of those matters. The applicant suggested that his mother-in-law coached his daughter to make the allegations. The applicant did not require the mother-in-law to be cross-examined. That makes it difficult for the Tribunal to make a finding urged upon it by the applicant without having that person address the allegation as required by the rules of fairness.
The applicant submitted that the evidence of his former wife is biased and unreliable. The applicant also relies upon the evidence of his former wife in the Family Court when she was cross-examined about the allegations of sexual abuse to the effect that she found it hard to believe the allegations: Exhibit 7 page 166. It is not part of the allegation that she saw the sexual abuse.
In this matter the applicant does not rely upon the report of a psychologist who has conducted a structured risk assessment.
The applicant does rely upon the opinion of the clinical and forensic psychologist Dr Milic that he could find no indication that the applicant poses a risk to others, including his children: Exhibit 6 page 358. Dr Milic provided help to the applicant to manage the stress associated with the separation from his children, the criminal proceedings, and the family law proceedings. It is submitted on behalf of the applicant that the applicant has learned to take on concepts such as maintaining flexibility when attributing motives to others: Exhibit 6 page 358. It is noted that Dr Milic did not conduct any risk assessment by the use of any usual tools or validated psychological testing. Dr Milic was not required for cross-examination.
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 generally 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 has completed some parenting courses as required by the Family Court consent orders and some counselling with Dr Milic. These are appropriate courses designed to increase parenting capacity and ability to look after children. Whether the courses have that outcome is matter for observation and assessment after the courses have been completed.
Dr Lennings attempted to use the Personality Assessment Inventory psychometric tool (PAI) to assess both the applicant and his former wife. The results were able to be interpreted for the applicant's former wife. The applicant had difficulty appropriately completing the PAI. Dr Lennings concluded on the basis of his clinical opinion that there were "no obvious predictors of sexual deviancy" and noted that "generally sexually motivated offending in non-deviant and non-antisocial persons has a low rate of recidivism once the person has been caught." There was no formal risk assessment conducted by Dr Lennings such as the use of the Risk of Sexual Violence Protocol (RSVP) or any other risk assessment tool. Dr Lennings observes a history of low-level family violence which worsened between the couple prior to the allegations of sexual assault. It is also observed by Dr Lennings that the applicant did lose his temper with his daughter from time to time, but it is not clear how forceful he was in response to her: Exhibit 8 [151].
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].
The use of actuarial risk assessments is 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.
Dr Lennings provided a report for the purposes of the Family Court proceedings. The report was not for the purposes of this application. The applicant gave information to Dr Lennings which did not appear to be disputed by the applicant in the proceedings before the Tribunal. The applicant alleged that the maternal grandmother had coached his daughter in relation to the allegations.
Dr Lennings was told by the daughter that the events had taken place because her grandparents had told her that they did even though her memory of them was fuzzy.
The applicant denied the allegations that he had touched his daughter's vagina or digitally penetrated her but he was aware that his daughter was touching herself (in that part of her body) and was concerned about it. Dr Lennings observed that the JIRT interviews with the daughter obtained a clear and resolute statement from her about which she was not shaken. It is also said by Dr Lennings that the daughter's sexualised behaviours at school and at home were "age normative", with elements of "self-soothing", which became a persistent habit possibly due to observing and reacting to parental conflict and the level of distress in the family: Exhibit 8 [152].
Importantly, Dr Lennings noted that the applicant accepted that he had played a game in the bath with his daughter when they were both naked, although he denied that his daughter sat on his genitals, asserting that she sat on his tummy. The daughter referred to this game as 'playing boats with her Dad'. Dr Lennings expressed an opinion, "[t]his probably reflects issues around boundaries but not necessarily a sexual deviation if his account is accepted." Exhibit 8 [54].
Dr Lennings stated: "…the allegation of child abuse is terribly fraught, and at a lower, civil standard, it is possible that a finding might occur that [the daughter] could be at risk." Exhibit 8 [159].
It is this statement which refers the difference between the civil standard of proof and the criminal standard. It also conveys the inference that even though the abuse may not be established to either standard there is a possibility that there 'could be' a risk. This is the type of finding which the Supreme Court referred in BKE v Office of the Children's Guardian [2015] NSWSC 523, per Beech-Jones J, at [30]-[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."
As previously stated, it is not necessary for the Tribunal to make any findings that allegations not the subject of convictions in fact occurred: Children's Guardian v BQJ [2016] NSWSC 869 at [64] per Button J.
In Office of the Children's Guardian v CFW [2016] NSWSC 1406, Harrison J at [14]-[17], His Honour considered that the Tribunal should first consider whether positive findings could be made about any alleged acts of wrongdoing on the balance of probabilities or secondly, whether the Court or Tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding that something occurred will have a significant impact upon the ultimate decision. Even if there is no positive finding able to be made on the evidence presented, the Tribunal is required to consider questions of risk which may be indicated by all of the facts.
Here there is little possibility of making a finding that the abuse actually occurred for various reasons. Indeed, the submissions of the Children's Guardian did not advocate for a finding of actual abuse. But the Tribunal cannot on the available evidence reject the allegation as groundless, especially if Dr Lennings evidence is given the weight it should be given.
The applicant submitted that the reason he had a bath with his child was that the bath was a deep triangular bath and that one of the parents should accompany a child in the bath. Indeed, a photograph was apparently referred to as tendered in the Family Court showing the mother in the bath with the child.
The applicant generally denied domestic violence in the relationship but did say to Dr Lennings that there were two occasions when he physically touched his wife. The first of those occasions was when he pushed his wife and the second occasion was when he "touched" her cheek or tapped her on the face with two fingers which he demonstrated to Dr Lennings: Exhibit 8 [13], [78]. The applicant also described to Dr Lennings that he touched his daughter's face with his finger: Exhibit 8 [13], [108]. The applicant also described to Dr Lennings an incident where the applicant grabbed the younger child and his daughter fell off his lap when there was some concern about her behaviour towards the younger child. The applicant states to Dr Lennings that he believed there was an overreaction on the part of the other parties to this incident: Exhibit 8 [87].
The applicant told Dr Lennings that there were arguments in his marital relationship. In fact, Dr Lennings stated that there was a stream of verbal abuse and at least some physical abuse occurring in 2012. It is also stated by Dr Lennings that the history, including an incident in 1997 when the applicant threatened to kill himself and his then girlfriend without any ADVO being issued, suggests that the applicant is an emotional man who can be prone to "mouth off" at times but his violence propensity in general remains low: Exhibit 8 [153]. Dr Lennings formed the view that the applicant and his former wife had a very conflictual relationship. Both parties appeared to Dr Lennings to lack some emotional regulation skills: Exhibit 8 [25], [26]. The applicant did not participate in therapy with Dr Milic with any focus on anger management, according to Dr Lennings perusal of the notes produced by Dr Milic: Exhibit 8 [153]. Dr Lennings was not required for cross-examination on his report provided to the Family Court either in those proceedings, or in this application. The opinion is not to be discounted because it appears soundly based upon the admissions of the applicant and is a balanced observation of the relationship which existed between the applicant and his wife.
It was submitted on behalf the applicant that the relationship was a volatile relationship and that there would have been pushing and arguments between the applicant and his former wife.
The applicant's former wife was questioned in person in these proceedings. Both parties had the opportunity to test her evidence. The applicant conceded that he prepared a letter signed by her sent to the Children's Guardian dated April 2017: Exhibit 5 volume 1 page 394. In that letter it is stated: "… 1. I believe that my ex-husband is not a risk to our children or any other children; and 2. Allegations against him with regards to our daughter… have been proven to be unfounded. I am aware that he runs a risk of losing his job if he is not given a working with children clearance and ask that you consider the above in providing him with the same."
The applicant's former wife also affirmed an affidavit in the Family Court in which she stated that the children "are not at risk of being subjected to or exposed to abuse, neglect or family violence" and that she did not consider that she was at risk of being subjected to family violence: Exhibit 5 pages 382-385. This affidavit addressed the issues of risk which were raised in the Family Court evidence so that consent orders could be made.
The applicant's former wife was telephoned in August 2017 by a Risk Assessment Officer employed by the Children's Guardian to discuss the letter dated April 2017 written to the Children's Guardian. As a result of that conversation the officer made filenotes. Those filenotes were raised with the applicant's former wife in the Tribunal hearing: Exhibit 5 volume 1 page 430-432. In her oral evidence the applicant's former wife agreed with the content of the filenotes which were made by the officer. The applicant's former wife wasn't confident in signing the letter due to the lengthy court processes and said that she "wouldn't have used the word 'unfounded'" to describe the allegations. The applicant's former wife said that she didn't think the applicant would do anything inappropriate with their children but "if she was another mother and knew that the applicant was charged with such offences, she wouldn't be happy for her children to have contact with him." The applicant's former wife stated that her "overall feeling was that something did happen" [to her daughter] based on her disclosures, and she did not think it was appropriate for the applicant to be around minors if there was no one else there. The applicant's former wife stated that she was of the view that it was "highly unlikely" that he would do anything else but she would still be worried. The applicant's former wife also stated that she doesn't think the applicant would do anything "physically" in a public place. This evidence is consistent with the oral evidence given to the Tribunal.
The applicant submitted that the Tribunal should not give weight to the non-expert assessment by the applicant's former wife. The applicant also submitted that the former wife did not see the alleged conduct but relied upon what the child said. It was the applicant who sought to rely upon his former wife's opinion by providing the letter in the first place. There is some incongruity between that position and in the criticisms which have been levelled at the credibility and veracity of the former wife's evidence. There is no reason arising from the circumstances in which it was placed before the Tribunal why her opinion should be discounted. The applicant's former wife "overall feeling was that something did happen" [to her daughter] based on her disclosures, and she did not think it was appropriate for the applicant to be around minors if there was no one else there and she would still be worried.
The applicant's affidavit refers to "the allegations of family violence" but does not address them in that affidavit. The applicant denies the allegations of sexual abuse and annexes a transcript of his cross examination in the District Court to his affidavit. In that cross examination the applicant also denies the allegations of sexual abuse: Exhibit 1.

Any order of a court or tribunal that is in force in relation to the person

There was an ADVO against the applicant as a result of the charges against him but the application to extend it was dismissed by the Local Court on 26 November 2016. There are orders in force in relation to the time that the applicant spends with his children.
The orders made in the Family Court provide that the children live with their mother and that the mother has sole parental responsibility for the children subject to the applicant being informed of significant matters specified in the orders. The applicant is now permitted pursuant to those orders to have unsupervised time with his children each fortnight from after school on Friday to the commencement of school the following Monday and during School holiday periods as specified in the orders. The supervision of the father's time with the children ceased at the beginning of 2017.
The evidence of the applicant is that because he is currently sharing a house in which he rents a room the children have not been spending overnight time with him. The orders have not yet been capable of full implementation.

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 which includes an affidavit sworn by him.
The applicant has denied the various sexual allegations made against him. The applicant did not refer to the allegations of domestic violence in his affidavit which he provided in these proceedings. The applicant has not undertaken any anger management counselling. The applicant has undertaken parenting courses which were a requirement of the Family Court orders.
The applicant is currently employed in what he referred to as a back of house role with his employer, where he is not required to come into contact with children. The applicant relies upon the fact that there have been no further allegations made against him since he has been spending time with his children on an unsupervised basis. These are factors which are positive and in favour of the applicant.
The applicant submits that without his working with children check clearance he will not be able to work in his preferred role in education and will also lose his current temporary position. This will have an impact upon his capacity to financially support his children and to provide an appropriate venue for him to spend time with his children on an overnight basis. The applicant takes the children to the park, libraries, shopping centres rather than where he currently resides. The applicant is currently assessed to pay child support for his children which is collected by the Child Support Agency from his wages. The applicant has a car which requires servicing and petrol, and remits $500 per month to his parents because of illness of his father.
The applicant agreed that he wrote a reference for his wife to sign and it is that reference which is contained within the material provided originally to the Children's Guardian.
The Children's Guardian has not submitted that apart from the failure to address domestic violence the applicant has failed to provide relevant information.

Any relevant information in relation to the person that was obtained in accordance with section 36A

There is no relevant information provided in this category.

Any other matters that the Children's Guardian considers necessary

The Children's Guardian made submissions addressing those matters which the Children's Guardian considers necessary.
The Children's Guardian correctly submitted that the evidence of the applicant's former wife remained consistent throughout both the criminal proceedings and the family court proceedings. It is clear that the criminal proceedings did not resolve the issue as to whether there were any incidents of sexual impropriety between the applicant and his daughter. The criminal proceedings relied upon the criminal standard of proof.
The Children's Guardian submitted that the submission by the applicant that the allegations of sexual abuse were initiated by his mother-in-law and motivated by malice towards him is not supported by any specific evidence. The timeline during which the allegations arose is not evidence of fabrication or malice without anything further and the submission by the Children's Guardian is that the submission by the applicant cannot be supported by the evidence. That is a submission which is appropriate. There is no persuasive evidence which supports the applicant's primary contention. It is also correct to say that the Family Court did not make any findings of fact about this issue and instead decided that the consent orders were appropriate.
As previously recorded in these reasons Dr Lennings observed that the child was adamant in her allegations about her father. The child gave clear disclosures to the police when she was interviewed in June 2013. The text of her interview is contained in Exhibit 6. The allegation recorded in the interview is that the applicant touched her on the vagina underneath her underclothes and that on one occasion he touched her "inside [her] vagina": Exhibit 6 page 26, Q190; page 29, Q229. Any later discrepancies in the child's disclosures is understandable having regard to her age and the lapse of time between the events which were alleged to have occurred and the subsequent trial.

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 generally denied domestic violence in the relationship but did say to Dr Lennings that there were two occasions when he physically touched his wife. The first of those occasions was when he pushed his wife and the second occasion was when he "touched" her cheek or tapped her on the face with two fingers which he demonstrated to Dr Lennings. The applicant also described to Dr Lennings that he touched his daughter's face with his finger.
The applicant also described to Dr Lennings an incident where the applicant grabbed the younger child and his daughter fell off his lap when there was some concern about her behaviour towards the younger child. The applicant states to Dr Lennings that he believed there was an overreaction on the part of the other parties to this incident.
The applicant told Dr Lennings that there were arguments in his marital relationship. In fact, Dr Lennings stated that there was a stream of verbal abuse and at least some physical abuse occurring in 2012. It is also stated by Dr Lennings that the history, including an incident in 1997 when the applicant threatened to kill himself and his then girlfriend without any ADVO being issued, suggests that the applicant is an emotional man who can be prone to "mouth off" at times but his violence propensity in general remains low: Exhibit 8 [153].
Dr Lennings formed the view that the applicant and his former wife had a very conflictual relationship. Both parties appeared to Dr Lennings to lack some emotional regulation skills.
The applicant did not participate in therapy with Dr Milic with any focus on anger management, according to Dr Lennings' perusal of the notes produced by Dr Milic. Dr Lennings was not required for cross-examination on his report provided to the Family Court either in those proceedings, or in this application. The evidence from Dr Lennings may be accepted in relation to the issue of family violence.
It was also submitted on behalf the applicant that the relationship was a volatile relationship and that there would have been pushing and arguments between the applicant and his former wife. The applicant has minimised the extent of family violence and the specific incidents are likely to have been more abusive than conveyed by the description by the applicant.
It is also said by Dr Lennings that the daughter's sexualised behaviours at school and at home were "age normative", with elements of "self-soothing", which became a persistent habit possibly due to observing and reacting to parental conflict and the level of distress in the family.
This observation is consistent with the Tribunal's previous observation in CLK v Children's Guardian [2016] NSWCATAD 183 at [43], that the effect upon children of witnessing conflict and violence between adults in a domestic situation and exposure to adult violence and conflict constitutes behaviour capable of a classification as 'child and young person abuse' because of the harmful and negative psychological and emotional impact upon young children.
Family and Community Services "substantiated" the allegation of sexual abuse and identified the applicant as a person causing harm. There were subsequent reports made to Family and Community Services about disclosures said to have been made by the daughter. In addition to the allegations that the applicant had touched and penetrated the vagina, the daughter alleged that he had bathed with her naked, and a played game in the bath in which he sat her on top of his genitals in the bath whilst he was naked. The fact of substantiated allegations is evidence that Family and Community Services considered the allegations are established to the civil standard of proof. Dr Lennings previously quoted comments contemplate the possibility that a finding that the child is at risk could legitimately be made on the balance of probabilities. It is the Tribunal's view that the finding by Family and Community Services is persuasive evidence of the existence of risk but not evidence that could support a finding that abuse actually occurred in all the circumstances referred to previously .
Dr Lennings assessed in his report to the Family Court that even if sexual abuse had occurred, "there does not appear to have been any significant psychological impact on [the daughter] of such abuse." The occurrence of self-soothing behaviours in this context is not consistent with there being no impact on the daughter. The qualification of "significant psychological impact" is relative and hopefully there remains minimal impact upon the child. It is probable, however, that the daughter will continue to believe that she was sexually abused by her father even if that abuse did not truly occur. The effect upon the daughter of that unshakeable belief is likely to cause her some adverse psychological impact during her progress to adulthood.
The expert certificate used in the criminal proceedings identified that on examination the child's physical presentation was normal. The medical examination took place on the same day as the interview by JIRT. It was explained in that certificate, by the medical practitioner who is very experienced in child abuse issues and is a paediatrician, that there are several reasons why there may not be abnormalities on physical examination following child sexual abuse (Exhibit 6 page 76): "- The nature of the assault such as inappropriate touching would normally not leave any physical signs. - The other factors are grooming process; cooperativeness of the victim, absence of force, the level of victim resistance may influence the presence or absence of physical findings. - Delay in examination-the time elapsed between the alleged assaults and the medical examination may have allowed healing of minor injuries if these are present without leaving residual findings."
The child protection unit at the hospital could not confirm or deny the allegation of sexual assault based on the medical examination.
The applicant accepted that he had played a game in the bath with his daughter when they were both naked, although he denied that his daughter sat on his genitals, asserting that she sat on his tummy. The daughter referred to this game as 'playing boats with her Dad'. Dr Lennings expressed an opinion, "[t]his probably reflects issues around boundaries but not necessarily a sexual deviation if his account is accepted." The Children's Guardian submits that this evidence shows that the applicant poses a risk to the safety of children. This is a submission which is accepted as accurate.
The respondent submitted that the applicant has not addressed the boundary violations outlined by Dr Lennings and has not adverted in his evidence to the issues of domestic violence. It was also submitted that the applicant has not demonstrated any insight or understanding of the effects that witnessing domestic violence can have on children. Indeed, the effect of the applicant's evidence is to minimise those events and does not evidence an understanding of the impact domestic violence has on children.
The applicant relies upon the dismissal of the criminal proceedings and the orders made in the Family Court coupled with the recent evidence of positive contact between himself and his children to argue against the conclusion that he poses an appreciable or real risk to the safety of children.
The dismissal of the criminal proceedings was a jury verdict in which it was not accepted that the evidence had established beyond reasonable doubt that the events had occurred as alleged. In the Family Court proceedings there was no determination as to the truth or accuracy of the sexual abuse allegations. The substantiation of the allegations by Family and Community Services tips the balance slightly in favour of a finding which does not support the applicant's denial of those allegations.
The standard of proof in civil proceedings is on the balance of probabilities and in this Tribunal that is the applicable standard. The acquittal in the criminal court is not determinative of any conclusion in this Tribunal.
The Children's Guardian relies upon contact reports between the applicant and his children where instances of sexualised behaviour were observed both generally and directed towards the applicant. Those reports are contained in Exhibit 9. Examples with page references are provided in the submissions provided by the Children's Guardian. The submissions in reply on behalf of the applicant refers to these examples. It is submitted on behalf the applicant that inappropriate and sexualised behaviour of the younger child is more likely as a result of his experience at school and living with the maternal family. It is also submitted on his behalf that the applicant responded with appropriate actions as recorded in those contact reports. It is considered that these reports are at best equivocal.
The Tribunal is not in a position to find to the relevant standard that the factual matters behind the allegations of sexual abuse actually occurred. There is, however, no persuasive reason to discount the finding made by others that the allegations were substantiated and they cannot be discounted as groundless.
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 independently 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 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] and 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. The finding of the Tribunal is that the applicant does pose a risk to the safety of children. Therefore, this provision does not apply to this matter. However, in the event that the Tribunal is in error concerning the risk the applicant poses to the safety of children it is necessary to consider this provision. 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 applicant's daughter consistently maintained that he touched her vagina on a number of occasions and digitally penetrated her constituting sexual abuse. There is a belief by the daughter that in fact she was sexually abused by her father. The applicant admits bathing naked with his daughter which at the very least constitutes boundary violations as said by Dr Lennings and with which the Tribunal concurs.
The applicant has exposed his children to domestic violence and Dr Lennings formed the view that the applicant and his former wife had a very conflictual relationship. The applicant appeared to Dr Lennings to lack emotional regulation skills. The applicant did not participate in therapy with Dr Milic with any focus on anger management or emotional regulation, according to Dr Lennings perusal of the notes produced by Dr Milic, and this accords with the Tribunal's perusal of the notes produced and the reports of Dr Milic.
The applicant's former wife "overall feeling was that something did happen" [to her daughter] based on her disclosures, and she did not think it was appropriate for the applicant to be around minors if there was no one else there and she would still be worried. The wife was cross-examined in the Tribunal and was a credible witness. The wife expressed herself carefully. 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 physical and psychological risk which is unacceptable to that person.
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.
Since the Tribunal is not satisfied that a reasonable person would allow his or her child to have 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).

Public Interest: section 30(1A)(b) of the Act

It is unnecessary in this matter for the Tribunal to make a determination about this particular issue because of the earlier determinations.
The public interest is not a confined concept. It is the Tribunal's determination that if required to decide whether it is in the public interest to make the order, for the reasons which have been stated earlier and having regard to the objects of the Act and section 4 of the Act, it would not be in the public interest to make an order enabling the applicant to work with children in accordance with the Act.

Conclusion

There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
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]; Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.
The evidence received by the Tribunal establishes that the Tribunal can be satisfied for the reasons expressed that the applicant does currently pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. There may be conditions which can be imposed which ameliorate the risk but the Tribunal is not empowered to make an order with conditions.
It is concluded on the balance of probabilities that having regard to the circumstances surrounding the alleged conduct by the applicant that the existence of a real and appreciable risk to children has not been disproven: see BKE v Office of the Children's Guardian [2015] NSWSC 523 at [33].
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act, referred to in detail previously in these reasons, the correct and preferable decision having regard to the material before the Tribunal is that the applicant does pose a risk to the safety of children and should not have a Working with Children Check clearance. The decision of the Children's Guardian should therefore be confirmed.

Order

The orders of the Tribunal are that: 1. The decision of the Children's Guardian on 19 October 2017 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 (NSW) is confirmed. 2. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 3. It is noted that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

HAYES (General Member)

In this matter, I differ from the presiding member's opinion in respect of the following issues. However, I accept that the effect of section 57 of the Civil and Administrative Tribunal Act 2013 (NSW) is that the presiding member's opinion is taken to be the decision of the Tribunal.
My reasons for writing a different view are as follows.
Firstly, the applicant's responses and denials under cross-examination during the Tribunal hearing were consistent with previous versions of events given to the District Court, the psychologist Dr Lennings and to the police. I considered him to be a reliable and credible witness.

Regarding the alleged events:

In October 2015, the applicant gave evidence on oath in a four-day trial in District Court proceedings against him relating to the alleged sexual abuse of his daughter. He was extensively cross-examined during the course of those proceedings (Tab 2, p255-273 of the s58 Documents). In his summary to the jury, the Judge drew attention to a number of inaccuracies and inconsistencies in the evidence from the child, the grandmother and the improbability of DGS touching his daughter when his wife (and the child's mother) was in the immediate vicinity and might see anything.
The applicant's contested version of events is set out in the prevailing decision of the tribunal. However, there are some inconsistencies in some of the evidence relating to the allegations of sexual assault. The evidence before the Tribunal indicates that the applicant's daughter did not say anything to her mother about the alleged assault.
The documents show that it was the grandmother who told her daughter (the child's mother) what the child had allegedly told her about her father putting his hand down her pants. The child did not directly tell her mother until she was questioned later that evening by her about what she had said to her grandmother. The daughter told her mother that she told her grandmother "Daddy puts his hand and finger inside my knickers". The mother did not initially discuss the matter with her husband. However, the grandmother did convey the allegations to staff at the childcare centre. This precipitated a report to Family and Community Services and interviews by the Joint Investigation Response Team (JIRT).
In her Statement of a Witness signed 27 June 2013, Mrs J N, the grandmother asserted that her grand-daughter had been "touching her private parts frequently". (Volume 1 of s58 documents, Tab A).
A Family and Community Services (FaCS) SDM Risk Assessment narrative template indicates that the child had put "one hand inside her knickers." However, it is later recorded that that she told her grandmother that "Daddy had been touching her vagina". (S58 Documents, Volume 1 / 2 Tab D, Page 123).
FaCS staff reports dated 18 June 2013 and 28 June 2013 indicate that staff had observed the child to put her hand down her pants and into her vagina on a number of occasions and in front of other children. (Tab D, Page 126). It was also reported on 18 June 2013 that the child "was going to the toilet a lot and was fiddling with herself". (Tab D, Page 63).
In an interview the child identified from a body chart the vaginal area as being "Your Leg" (Exhibit 6 p248-9). This raises questions as to whether she was actually touched on her leg and not her vagina and whether her subsequent belief that she was touched in her vagina was the result of suggestion initially from her maternal grandmother and then her mother.

Consideration of domestic violence events

I would suggest that appreciable weight should be given to the written report of Dr Christopher Lennings OAM, psychologist. Dr Lennings provided a detailed 59-page report dated 11 March 2016 for the Family Court of Australia. It provides a useful insight into the relevant child protection considerations in general as well as the applicant's circumstances in particular. It is important to note that Dr Lennings had the opportunity to interview both the applicant, DGS, his wife and the two children separately, albeit briefly. He also had the opportunity to watch the interaction by the mother with her two children and also that of the applicant with the children (p.2 of his report). The relative screening assessments and psychological assessments were undertaken for both DGS and his wife.
Dr Lennings reported that by way of context both DGS and his wife acknowledged that 2012 was a "very bad year" for them both (p4 of his report). In his report, he wrote that DGS' parents had visited from India in 2009 and this resulted in considerable animosity between the two families. Dr Lennings wrote that this appeared to have been an ongoing issue and one that caused a lot of stress on the marital relationship. The applicant considered his wife was entirely influenced by her parents (p.8 of Dr Lennings' report) and referred to her being dependent on her parents (p.43). The applicant told Dr Lennings that "it was unfortunate that the relationship did not work out" but he believed his "in-laws as being the primary opposition to him and manipulating the situation against him". DGS went on to tell Dr Lennings that "over the years he had copped a lot of abuse from her (being his wife) being openly insulting about his parents and his Indian heritage and generally denigrating him." He told Dr Lennings that his behaviour towards his wife was one of a response to frustration and verbal abuse. He denied outright any allegations of sexual abuse towards his daughter (p.23 of the report).
Dr Lennings indicated that in 2012, DGS advised there were two occasions where he was physical with his wife, one where he pushed her and another where he tapped her on her face. DGS acknowledged his loss of control towards his wife and accepted that he had acted inappropriately. However both oaacsions were after intense prolonged periods of arguments and verbal abuse from his wife. (p5. Para 13) DGS stated that he sought psychological support accordingly. He began contact with psychologist Dr Marc Milic. Dr Milic also commented on the intrusive and hostile relationship of the maternal grandmother towards the applicant (Exhibit 6 p.358).
Dr Lennings suggested that the major damage in the family was the sniping, denigration, racial vilification and argumentative behaviour which was not necessarily exclusively the behaviour of any one party. He stated that much of the hostility in the relationship appeared to have been mutual.(p49, para 158)
He further commented on the "sexualised behaviour" of the daughter both at school and at home. He considered this self-stimulatory behaviour to be age normative, although her persistence in it following censure from all the adults around her, "may be understood as self-soothing behaviour", possibly because of the parental conflict and the level of distress in the family (p47).
In his report, Dr Lennings commented that DGS presented as having a good attitude towards his children. He did not perceive that DGS had an attitude towards the children that would suggest they would be at risk of either physical or psychological harm or neglect if he were to be involved with them. He considered "there is little likelihood that there is any risk of sexual abuse to the children" (p.56 of his report).

Consideration of the contact between DGS and his children

I again rely on comments from Dr Lennings who stated there was little doubt that the children were exposed to significant family violence, insomuch as there was a stream of verbal abuse and some occasional physical abuse between the parents occurring in 2012 (p.53). Dr Lennings stated, however, that on the whole, the children did not display any evidence of trauma. This was confirmed by the psychologist at Westmead Hospital who had contact with the daughter after the alleged assault in 2013.
A genital examination of the child was undertaken at Westmead Hospital and no abnormalities or injuries were identified. Psychological intervention with the child at that time did not establish any residual traumatic symptoms.
In his report, Dr Lennings commented that from his examination with DGS, he could not find any markers of suggestive sexual disturbance. He commented that even DGS' wife did not describe her husband as a deviant or was excessive in his sexual interests. Dr Lennings stated that the applicant displayed no evidence of psychological impairment or personality disorder. Furthermore, he found that there were no obvious predictors of any sexual deviancy (p.49).
Dr Lennings stated that DGS presented as having a good relationship with his children. He further commented that he did not perceive that the applicant possessed an attitude towards his children that would suggest they would be at risk of physical or psychological harm or neglect if he were to be involved with them.
Dr Lennings concluded his report by saying that "to my mind both parents are able to provide for the children if given the opportunity to do so" (p.58).

Documents produced under summons by Bridging Families Exhibit 9.

These documents were provided by Bridging Families, the group selected for the supervised contact between DGS and his children. As stated previously, a period of supervised contact was ordered by the Family Court.
Reading the documents provided by Bridging Families relating to the supervised access visits between the applicant and his children (pages 20-78), I am of the view that the access arrangements went well. The children appeared happy to see their father and enjoyed their time with him. The applicant was observed to be attentive towards the children, the contacts appeared to go positively and the children appeared comfortable with their father. The reports indicate that the applicant appeared attentive, interactive, caring and observant towards his children throughout the contact visits. Whilst his daughter was observed to place her hand on her father's thigh on two occasions during a contact visit in 2016 and the son was physically violent towards his father and sister, there was no intervention from the supervisor during those contact visits. The supervisor commented that the father had behaved appropriately and there was no need for any intervention by her.
The circumstances surrounding the allegations against DGS have been fully considered. There is no "lingering doubt or suspicion" about his conduct in respect of daughter. Furthermore, there is no evidence that he poses a risk to his daughter or other children. His employment has been stable and his employment record and psychological reports about him are favourable.
In considering the effect of section 30(1A)(b) of the Act, I believe that any member of the public knowing the full and exact information regarding DGS' circumstances would allow his or her child to have contact with the applicant. I consider that the applicant does not pose a real and appreciable risk to the safety of children and young persons. Consequently, I would support the making of an order enabling the applicant to work with children. 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 03 January 2019 - Typographical error on coversheet, date of orders 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: 03 January 2019

Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016(NSW)

Commission for Children and Young People Act 1998(NSW)

At a glance

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Decision date

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Judgment (30 paragraphs)

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Legislation Cited (12)

Cases Cited (50)

Cited By (2)