DGZ v Children's Guardian

NCAT Administrative and Equal Opportunity|2021-10-13

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 CXZ v Children's Guardian [2020] NSWCA 338 Deiter & Deiter [2011] FamCAFC 82 Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856 Greyhound Racing Authority v Bragg [2003] NSWCA 388 GR v Department of Communities and Justice [2021] NSWSC 1081 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Isles & Nelissen [2022] FedCFamC1A 97. Johnson v Page [2007] FamCA 1235; (2007) FLC 93-344 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 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590. Napier v Hepburn [2006] FamCA 1316; (2006) FLC 93-303; (2006) 36 Fam LR 395 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 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: DGZ (Applicant) Children's Guardian (Respondent) Representation: Counsel: P Lowson (Applicant) A Douglas-Baker (Respondent)

Solicitors: R Court (Applicant) Crown Solicitor (Respondent) File Number(s): 2019/00242731 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 "DGZ" in these proceedings in order to protect the identity of the applicant. Disclosure of the identity of DGZ would also identify persons associated with the applicant which is not in the interests of named children and young persons. It is appropriate to protect the identity of the applicant with a nonpublication order and use of the pseudonym.
On 10 July 2013 the applicant applied for a Working with Children Check Clearance (WWCC) nominating education as the child related employment sector. The applicant was verified by his employer church and granted a clearance by the Children's Guardian on 17 July 2013 because there were no records that then suggested he posed a risk to the safety of children.
On 28 July 2015 the Children's Guardian was made aware that the applicant was the subject of allegations of sexually inappropriate conduct towards both adults and children while he was employed by his church between 2002 and 2013.
The applicant's former wife also alleged that the applicant sexually assaulted her during their marriage and a relative of the applicant's has alleged that the applicant sexually abused her when they were both children in approximately 1982.
In August 2015 the Children's Guardian received a workplace misconduct notification from the applicant's employer church.
In December 2016 the Children's Guardian received a further notification from the New South Wales Ombudsman regarding allegations against the applicant.
On 20 December 2016 the applicant was informed of the Interim Bar which was imposed by the Children's Guardian and the same correspondence informed him that it was proposed to cancel his clearance. The applicant was provided with the opportunity to make submissions as to why his clearance should not be cancelled.
On 19 December 2017 the Children's Guardian wrote to the applicant and informed him that his WWCC was cancelled pursuant to section 23 of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act")
The respondent determined that the applicant poses a real and appreciable risk to the safety of children.
DGZ filed in the Tribunal an application for review under section 27 of the Act on 22 December 2017 concerning the decision of the Children's Guardian, as stated on 19 December 2017. That decision is the subject of this review due to the following circumstances. The application for review under section 27 of the Act in the Tribunal was originally filed within time. However, on 28 May 2018 the proceedings were dismissed pursuant to section 55 of the Civil and Administrative Tribunal Act 2013 (NSW) as a result of advice received by the applicant and ongoing police investigations. On 9 October 2019 the applicant was granted an extension of time in which to bring his application to review the decision made on 19 December 2017. The extension of time was to the date of filing of his application for review on 5 August 2019.
The respondent opposes the application for review of the decision and seeks that the original decision is confirmed.
The Act initially came into force on 15 June 2013.
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.
The applicant was subject to a risk assessment by reason of section 14 and section 15(3) of the Act which does not limit the circumstances in which the children's Guardian may conduct a risk assessment, because the Children's Guardian considered it necessary to conduct a risk assessment.
The application for review was heard by the Tribunal on 12, 13 October 2021, and 12 November 2021.
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 the chosen area is not permitted by the legislation. Thus, a determination in favour of the applicant cannot be made upon conditions.
An order has been earlier 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.
In summary, after carefully considering at length the material relied upon by the parties, and the helpful written and oral submissions, the Tribunal has determined that the applicant should not be granted a Working With Children Check clearance and confirms the decision to cancel the WWCC for the reasons which follow.

The evidence relied upon in the hearing

In addition to the Application filed annexing the decision cancelling the Working With Children Check Clearance, the applicant and respondent relied upon documents which were tendered and marked as Exhibits as follows: 1. Application filed by the applicant dated 5 August 2019: Exhibit 1; 2. Affidavit of the applicant dated 16 August 2021 and Exhibit DGZ-1 to that affidavit: Exhibit 2; 3. Affidavit of a male friend of DGZ sworn 13 August 2021 (who has known him for over 30 years): Exhibit 3; 4. List of applicant's documents: Exhibit 4; 5. Affidavit of Dr Olav Nielssen psychiatrist dated 24 June 2021: Exhibit 5; 6. Submissions on behalf of the applicant dated 8 October 2021: Exhibit 6; 7. Chronology prepared on behalf of the applicant: Exhibit 7; 8. Documents filed on 5 February 2020 pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) (section 58 documents): Exhibit 8; 9. Documents filed on 22 December 2020 following an application under section 59 of the ADR Act: Exhibit 9; 10. Further Documents filed on 22 December 2020 by the respondent: Exhibit 10; 11. Schedule of Allegations, Evidence and Risk filed 15 May 2021: Exhibit 11; 12. Evidence in reply filed 3 September 2021 (by the respondent): Exhibit 12; 13. Submissions of the respondent filed 14 September 2021: Exhibit 13; 14. Applicant's further submissions filed 29 October 2021: Exhibit 14; 15. Respondent's submissions in reply filed 12 November 2021: Exhibit 15.
The material relied upon by the parties in evidence has been considered and where appropriate that evidence is referred to in these reasons. It should also be stated that the evidence in documentary form is voluminous and has been a challenge to review. However, the applicant and respondent (or at least the legal representatives) appeared to be aware of the challenge this has posed to a considered decision.
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 also referred to in the helpful submissions and these reasons 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."
The section was amended with effect from 4 February 2019 to include a maximum penalty of 2 years imprisonment, or both 200 penalty units and 2 years imprisonment. For present purposes that penalty is not relevant to this application but shows that it is considered by the legislature to be a serious matter which may result in imprisonment upon conviction. It is obvious that the offence of "abuse" is defined by 3 separate types of harm: i) physical injury or sexual abuse; ii) emotional or psychological harm likely to damage emotional or intellectual development or in fact has caused such damage; iii) physical development or health being significantly harmed.
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 because he has not been convicted of an offence.
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 circumstances in which the Children's Guardian may conduct a risk assessment are not limited by the reasons set out in subsection 15 (1) or subsection 15 (2). 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. ...."
Pursuant to section 23 the Children's Guardian may cancel a WWCC. The section provides: 23 CANCELLATION OF CLEARANCES (1) The Children's Guardian must cancel the working with children check clearance of a person if the Children's Guardian becomes aware that the person is a disqualified person or the Children's Guardian is satisfied that the person poses a risk to the safety of children. (2) The Children's Guardian must notify the holder of the clearance in writing of the Children's Guardian's decision to cancel the clearance. (3) Notice of a decision to cancel a clearance must set out the reasons for the cancellation and the right to seek a review under Part 4. (4) The Children's Guardian must as soon as practicable after cancelling a clearance, give written notice of that cancellation to each person that the Children's Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance.
The hearing before the Tribunal is therefore pursuant to an application under section 27 (2) of the Act which provides: … (2) A person whose clearance is cancelled by the Children's Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. …
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 69, 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 69, 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] 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 Court of Appeal has more recently considered the issues relating to risk in CXZ v The Children's Guardian [2020] NSWCA 338. It is instructive to extract from the decision of Simpson AJA (with whom McCallum JA agreed) at [56]-[59]: 56 In Tilley v Children's Guardian [2017] NSWCA 174 Basten JA (with the agreement of Meagher and Leeming JJA) referred to M v M and said at [34]: "The Court noted that some allegations might be seen to be well-founded, while others may be seen as groundless. However, the Court accepted that there would be allegations falling into an intermediate category which were nevertheless relevant to the assessment of future possibilities or likelihoods, which lay at the heart of the Family Court's function in determining appropriate orders with respect to custody and access, for the welfare of a child." 57 None of these decisions endorses the proposition that, in respect of every allegation raised by the Children's Guardian against an applicant for a clearance, the Tribunal must engage in the three-step process for which the respondent contends. The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children. 58 It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children. 59 The High Court did not, in M v M, have in mind a case such as the present where a series of disparate allegations are presented as a basis for refusing a clearance. It merely referred to allegations that "the father had sexually abused the child". There was no indication of the number of times on which the abuse was alleged to have occurred, nor the nature of the abuse alleged, other than that it was of a sexual nature. Certainly the High Court did not suggest that each such allegation ought to have been assessed and determined serially. Yet that is the effect of the proposition now being advanced on behalf of the respondent.
In NU v NSW Secretary of Family and Community Services [2017] NSWCA 221, Beazley P (McColl JA and Schmidt J agreeing) stated at [55]-[59]: 55 However, as the High Court pointed out in M v M at [22], an inability of the court to make a positive finding of abuse does not conclude the question of the appropriate order to be made, in that case involving custody or access to a child, where the paramount consideration is the "best interests of the child". The same position applies to the appropriate order to be made under the Care and Protection Act. Having regard to these principles, the primary judge was required to assess the evidence to determine whether K would be exposed to an unacceptable risk of sexual abuse if restored to the care of her parents including her father. 56 NU's particular complaint is that he was denied procedural fairness, whether that be pursuant to the rule in Brown v Dunne or some more general principle of procedural fairness, in circumstances where his denial of sexual abuse was not the subject of cross-examination. It is well established that a failure to afford procedural fairness, where there is a requirement to do so, constitutes error of law which is jurisdictional in nature: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [26]-[42] per Gaudron and Gummow JJ (Gleeson CJ agreeing); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [213] per Kirby J; Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 186 per Handley JA. 57 It is also well established that a finding made in the absence of cross-examination may involve a denial of procedural fairness: see rule in Browne v Dunn. The meaning of the rule in Browne v Dunn was explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 at 16: "It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67." 58 There is a clear corollary of the rule, namely, that if a witness is on notice of the allegation upon which a party intends to rely and is on notice that his or her evidence is contested on that issue, the rule does not mandate that the witness be cross-examined on the matter. This was explained in Browne v Dunn by Lord Herschell LC at 71, who pointed out that there was no obligation to raise such a matter where it is: "… perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling … All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted." See also West v Mead [2003] NSWSC 161 per Campbell J at [94]-[97]. … 62 In the present case, it is unnecessary to determine whether there would have been a denial of procedural fairness had NU not been cross-examined on his sworn denials of having sexually assaulted J. Nor is it necessary to determine whether there is some other or additional principle of procedural fairness that ought to have governed the conduct of the matter. NU was clearly on notice that the allegations of sexual abuse preceding the alleged occasions in March 2013 were in issue. 63 The evidence before the Children's Court and on appeal in the District Court included the JIRT interview and the transcript of J's cross-examination in the criminal proceedings, which included extensive cross-examination on her allegations of earlier abuse occurring over a number of years. It also appears that no application was made that J give oral evidence in either court. The Court was informed that it is unusual for a child witness to be required to attend to give oral evidence.
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. Additionally, the applicant in this matter does not seek an approval subject to conditions.

The Issue

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 cancellation of the Working with Children Check Clearance held by 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 subsection 15(4), subsection 30(1) and subsection 30(1A) 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.

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 cancellation of a clearance and the prior imposition of an interim bar occurred after the notification of, and then an assessment of the matters which are also considered in this application for review with the addition of further material provided in support of the applicant's position.
The Tribunal has gratefully relied upon the parties' written and oral submissions in order to document the allegations and compared them to the primary materials relied upon by the parties. The following summary is an amalgam of those submissions and tendered documents. The schedule in Exhibit 11 summarises the allegations and sources as well as the alleged risk. Both the applicant and respondent used this as the basis for their submissions.
The applicant is a 50-year-old married man. The applicant has 3 children by his first marriage aged 20, 17 and 16 years of age. The applicant according to his evidence was married in 1997, separated in November 2010 and divorced on 18 February 2012. The applicant married his second and current wife on 5 March 2017.
The applicant states that he has not had contact with any of his 3 children since 4 December 2018.
The applicant states that he requires a WWCC for his career and financial and religious reasons. The applicant states that he was awarded in 2019 a PhD for his thesis which was related to health in adolescents. The applicant wishes to lecture at a University but cannot do so without a WWCC. The applicant also states that without a WWCC he cannot attend his church unless he signs a safety agreement. The applicant apparently has refused to sign a safety agreement.

Family Law Act proceedings

The applicant's former wife was informed about 18 December 2010 that the applicant's female cousin had recently gone to the police with allegations that the applicant had sexually abused the cousin. The former wife sent on the following day to her solicitor an email in relation to that and sought an appointment to discuss the information. The same day the former wife received a telephone call from the applicant in which he raised queries as to whether the former wife had made any allegations about him abusing the children or anyone else because the police had spoken to him about that, and he intimated that he may not return the children to her. In response the former wife sent an SMS to him advising that she had changed the locks on the home requesting privacy. On 20 December 2010 the applicant attended the former matrimonial home with his father and was later served an Apprehended Violence Order application for the protection of the former wife. On 23 December 2010 and again on 18 February 2011 the former wife's solicitors wrote to the applicant's solicitors inquiring about the police allegations of sexual impropriety.
On 24 February 2011 the applicant and his former wife attended a mediation for the purpose of the family law proceedings between them. The applicant admitted in a sworn affidavit accessing the former wife's email to her solicitor without her knowledge or consent, and then engaging her in the conversation about the police investigation in order to ascertain the reasons for email to the solicitors without disclosing that he had accessed her email account. The AVO proceedings were heard and dismissed at the Local Court, even though the former wife described the applicant's invasion of privacy, including accessing her email account. There was apparently no evidence before the Magistrate that the applicant had in fact accessed the former wife's email account.
On 26 May 2011 interim parenting orders were made in relation to the parties' 3 children to the effect that they were to live with the former wife and spend time with the applicant.
On 23 December 2013 final parenting orders made by consent allocating sole parental responsibility for the children to the former wife and providing the children to live with her. The children were to spend time with their father and communicate with their father at specified times. Orders were made restraining the applicant from attending the children's school except for certain specified events, from attending residential camps associated with family's church community, and from initiating contact with the children outside of the orders. There were mutual non-denigration orders.
In August 2017 the second oldest daughter ceased spending time with the applicant. The daughter disclosed to the former wife that the applicant touched her on the bottom when she told him to stop and he did not listen. The daughter also disclosed to the former wife that she was scared to stand up to the applicant and did not want the applicant to treat her as she had seen him treat the oldest daughter.
On 25 October 2017 the applicant filed a contravention application in the family law proceedings in respect of the children ceasing to spend time with him, ceasing to communicate with him, and alleging breach on the part of the former wife for failing to positively encourage children spend time with and communicate with him.
In April 2018 the parties' son stopped spending regular time with the applicant.
The applicant stated in his affidavit before the Tribunal that he received legal advice from his lawyers in the earlier Tribunal proceedings that he should not be alone with his daughters and if alone, he should record his conversations with them. The applicant recorded conversations with the eldest daughter in July 2018 and a further conversation in August 2018. The applicant then recorded four further conversations in November 2018. These recordings were made without the consent of the daughter.
On 27 August 2018 after having recorded 3 conversations with the eldest daughter, the applicant filed the second contravention application in family law proceedings for further alleged breaches of the orders.
In September 2018 the parties' son stopped spending time with the applicant.
In October 2018 the eldest daughter told the applicant that she wanted a relationship with him but he was "making it impossible for [her] to do that", and he responded: "Well I don't understand that." The applicant's version of the conversation attributed the difficulty to the former wife rather than himself.
The applicant filed a third contravention application in November 2018.
On 11 December 2019 the Federal Circuit Court of Australia (as the Court then was known) did not permit the recordings to become evidence because it found them to be "furtive recording[s] of private conversations between the father and his daughter" giving rise to the likelihood that "she will never be able to trust him again." The recordings were found to be in contravention of the Surveillance Devices Act 2007 (NSW) for the purposes of the contravention proceedings and therefore illegally or improperly obtained and should be excluded in the exercise of the court's discretion. There was no mention of an argument referring to the alleged legal advice received by the applicant. The defence available under that legislation obviously was not able to be relied upon successfully by the applicant.
On what was the 5th day of the contravention proceedings, 11 December 2019, the eldest daughter was cross-examined by the applicant's counsel. The daughter adhered to her affidavit sworn 4 March 2019 in which she detailed the applicant's conduct towards her and each of the siblings which made her feel uncomfortable and unsafe and which she had requested the applicant to cease but he did not do so.
On the 6th day of the contravention proceedings, 3 November 2020, the applicant and his former wife agreed to consent orders pursuant to which the contravention proceedings were withdrawn and dismissed. There were no further family law proceedings referred to in the material before the Tribunal.

Workplace investigation of allegations of misconduct

The applicant was employed as a Minister of his church between 1998 and 21 January 2013. The applicant resigned on the later date. At the time of his resignation the applicant was being investigated for workplace misconduct. The applicant's ordination was annulled on 29 May 2013 by his church. The workplace misconduct investigation was into an extramarital sexual relationship between the applicant and a female work colleague.
On 13 March 2013 as a result of the workplace investigation, the applicant was found to have engaged in sexual misconduct with his work colleague in breach of workplace policy. The applicant was found to be dishonest due to his denial of there being a sexual relationship, and his assertion that it was his work colleague that initiated sexual contact with him. Investigation found that the applicant engaged in egregious spiritual abuse or using scripture to encourage the colleague's participation in sexual misconduct, for his own gratification, distorting beliefs and ethics of the church to which they both belonged. The applicant apparently quoted passages from the Bible when the colleague sought to leave the relationship to the effect that God would not forgive her if she left him. The applicant was also found to have harassed the colleague in the period October to December 2010 by sending numerous SMS messages seeking to re-establish a relationship with her.
It was also alleged that the applicant misused a disclosure made by the workplace colleague to him that she had been sexually abused as a teenager. She had confided in him when she was 13 years old she was the victim of sexual abuse by a male friend of her older brother. She said the abuse lasted over 3 years and the alleged abuser was a volunteer supervisor at church and school camps she attended. She fell pregnant as a result of this abuse and had an abortion. She said that as a result of confiding these matters in the applicant the emotional dependence upon him commenced. The applicant utilised the language of the Ministry to justify their relationship by referring to it as "God ordained" or "God has brought us together". She said that the applicant convinced her through Bible studies and prayer sessions, which they conducted together with no other company, that there was nothing wrong about their relationship.
The workplace colleague provided 2 affidavits in the family law proceedings on behalf of the former wife. It appears that she commenced work with the applicant in January 2008 by late February 2008 the applicant and she had commenced private Bible study together. By June 2008 the applicant signed off emails to her with "UMGF" which apparently means "You Me God Forever". By mid-2008 the colleague and her husband had moved into the applicant's family home with his former wife and their 3 children. She alleged that the applicant engaged in grooming behaviour of her even though she was an adult. She described the applicant engaging in boundary crossing and predatory behaviours. The allegations were first raised in an email sent by her husband on 31 January 2011 to the relevant church entity attaching his wife's complaint.
The result of the workplace investigation apparently was that the applicant's ordination was void and he was ineligible for future employment as a Minister or teacher.
On 25 March 2013 the applicant was informed that the concurrent investigation in relation to allegations which arose concerning alleged historical misconduct towards children had been terminated.

Allegation 3 as referred to in Exhibit 11

The applicant's former wife made a statement on 30 April 2015 to the Royal Commission Into Institutional Responses to Child Sexual Abuse. The content of this statement in so far as it relates to the former wife has been identified as Allegation 3 in the material before the Tribunal. The statement is contained within the material in Exhibit 8 pp100-126. The statement appears to be drafted by the applicant's former wife.
The statement also raises other issues in relation to the response by the church into investigating the risk that his former wife considered the applicant posed to young children.
The applicant's former wife did not raise the issues mentioned in the statement in the Apprehended Violence Order application proceedings in April 2011 nor did she raise them during the course of the Family Law Act proceedings, that the applicant had been violent or sexually violent towards her. That does not mean the allegations are not true.
The applicant submits that the former wife should have been made available for cross-examination in relation to her allegations of sexual, spiritual and emotional abuse by the applicant of his former wife.
It was an option available to the applicant to ensure that his former wife was present if the applicant considered she should be cross-examined.
The Tribunal is not in a position to determine whether the allegations are true or not. The Tribunal is required to consider and assess the risk the applicant may pose the safety of children. As referred to elsewhere in these reasons, the assessment of risk is distinct from fact finding as to past events.
The respondent submits that the Tribunal may consider the matters raised are not inconsistent with other allegations by other people and not inconsistent with other evidence before the Tribunal. The submission correctly identifies that it is a matter of weight to be given to this allegation in the context of other allegations.

Allegation 4 as referred to in Exhibit 11

The applicant's maternal cousin gave a statement to police in 2007 in which she alleged the applicant placed his hand inside her pyjamas and put his fingers inside her labia majora. This event is alleged to have occurred in 1982 when she was about 7 years old and the applicant was about 10 years old. It was said that the applicant and other children were asleep in the one room when the applicant beckoned her to join him under the covers, and it is in that context the touching occurred. It was said that this was an isolated incident.
It is apparent that the alleged incident first came to light in 1991 when the cousin disclosed it to her parents and began treatment with counsellors and psychologists. After the commencement of the treatment she made a statement to the police.
The applicant makes extensive submissions about factual matters which are alleged to be inconsistencies with the report made by the cousin. Included in the submissions relying upon the applicant's statement it is stated that the applicant was invited to the cousin's wedding in 1998. This does not confirm the existence or nonexistence of alleged abuse. In her police statement the cousin disclosed that they were quite good friends after the incident.

Allegations 5 and 6 as referred to in Exhibit 11

The applicant's former sister-in-law, who is the younger sister of his former wife alleged that the applicant was physically intimate with her, hugging her and encouraging her to sit on his knee, bouncing her on his knee when she was still a child between the ages of 14 and 17 years. The applicant is alleged to have placed his arms around her waist when she was 17 years sitting on his knee. She said the physical contact made her feel uncomfortable but did not object as the applicant was a brother-in-law. The applicant was also a church pastor in their local church. She also considered that he sent her an anonymous email which stated "I have seen you naked and can't stop thinking about you."
The church failed to conduct an investigation into the allegations to determine whether it was a reportable matter and advised in a letter dated 26 July 2012 it resolved not to investigate matters involving young people any further. This was at the same time as investigations for alleged breaches of the applicant's employment contract. The former wife's statement to the Royal Commission was in April 2015. The Ombudsman in September 2015 directed the church to undertake the necessary statutory investigation.
The applicant agrees that there may have been an occasion that his sister-in-law sat on his knee but that was in the context of the family relationship.
The sister-in-law also alleged that when she was 18 in about 2000-2001 she accompanied the applicant on a trip to New Zealand. At the end of the trip the 2 of them went on a 2 day tour. On the first night they stayed in a motel with 2 single rooms. On the 2nd night the applicant booked a bed and breakfast which had a double bed and a lounge. The sister-in-law said the applicant invited her to share the double bed with him and said to her: "It's okay because we are like brother and sister." The sister-in-law said that the invitation left her in no doubt that the applicant's interests were sexual and when she declined his offer and slept on the lounge, he was frustrated and irritated with her. This allegation was documented in 2011 during the workplace investigation.

Allegation 7 as referred to in Exhibit 11

This allegation concerns a young female aged 15 or 16 when she was introduced to the applicant at a teen summer camp operated through the church. The applicant was an adult working at the camp whom the female knew as a pastor and Assistant Director for Youth Ministry at the church. When she first met the applicant he stepped forward to give her a hug, then pulled back a short distance and said words to the effect: "mountains and valleys [the girl's name], mountains and valleys" before moving in again and giving her a closer hug pressing his chest firmly against her breasts. She was taken aback at this behaviour because they had only just met, and his reference to her breasts and invading her personal space made her feel uncomfortable. She said that had any other man hugged her like that she would probably have slapped their face. Because of his position as a pastor and youth leader she felt she was not in a position to object.
It is alleged that this behaviour crossed boundaries, of a sexual nature with a young woman in the care of the applicant and in his workplace. The behaviour is alleged to have occurred in front of other young people and was inappropriate and potentially harmful to the child. It is said to be behaviour which constituted an abuse of the applicant's position of power in the church and the church community, and was conduct which the young female would not have accepted from someone not in that position.

Allegation 8 as referred to in Exhibit 11

Another different young female, a junior colleague of the applicant's alleges in about 2000 to 2001 she arrived at the applicant's home and as she walked in the applicant said to her: "Gee, you've lost all your weight, and your tits have gone too" and he immediately grabbed her on the breast. The young female said she laughed it off given that the applicant was always "huggy" and friendly with women.
This allegation was made in the context of the workplace investigation in 2011. The applicant says that this person was not a junior work colleague but a visitor to his family home. It appears on the applicant's evidence she did become a work colleague later. The applicant says in submissions in Exhibit 14 at [62] he was not ordained at the time and was not a Minister in the young woman's church, though he gives evidence that he was a Minister in the church. The submissions of the applicant attribute this allegation to workplace gossip, generated after the separation of the applicant and his wife, and his extramarital affair becoming public knowledge. It is submitted that the Tribunal should find the alleged conduct not occur. The applicant alleges that he has a good relationship with this woman. The applicant submits that it was requested she should be made available for cross examination. Again, the applicant could have made arrangements for the person to attend to be cross-examined if that was considered desirable or necessary.
The submissions and evidence by the applicant raise an expectation that if she was called to give evidence or be cross examined the evidence would be supportive of the applicant. There is no explanation why she was not called to give evidence in those circumstances, in the applicant's case.
The relationship of the young female to the applicant on the current state of the evidence undermines the submission that this was an allegation generated by gossip and negative publicity. The Tribunal considers this evidence and submissions to be more corroborative of the allegation than undermining the credibility of the young woman.

Allegation 9 as referred to in Exhibit 11

The Children's Guardian does not submit that the Tribunal would rely upon this allegation to find the applicant poses a real and appreciable risk to children. The respondent does not submit that the Tribunal could find this allegation possibly true on the material before it.
However, the allegation has been made. The allegation is that the parent of a 4-year-old girl alleged that the applicant sat her on his lap during a church concert and stroked her hair, neck, back and over her body. The police applied for an Apprehended Personal Violence Order in 2016 which was withdrawn and dismissed in 2017. The child's statements as reported in the evidence were innocuous and imprecise and it is no surprise that the application was withdrawn. The fact that the police withdrew the application and also the fact that the transcript of the child's evidence was not available to the Children's Guardian prior to the receipt of the applicant's affidavit evidence justify the submission now made by the respondent.

Allegation 10 as referred to in Exhibit 11

This allegation is that the applicant touched his oldest daughter inappropriately and said inappropriate things to her, making her feel insecure and uncomfortable. The daughter's affidavit is contained in Exhibit 10 at pp 1949-1971. The daughter was aged over 18 at the time of this affidavit. She was also cross-examined on her evidence in the Federal Circuit Court. The transcript is in Exhibit 10 at pp 867-943.
The affidavit of the daughter is comprehensive and appears to be her genuine reservations about her father's behaviour.
The submissions of the respondent accurately encapsulate the evidence of the daughter.
The daughter stated that in the six-year period from 2013 to 2019 she had repeatedly asked the applicant not to touch her but he did not accept this. The father touched her on the butt, she was telling him to stop and he would laugh at her reaction say "it's my right as a father", or "don't be so sensitive". The applicant slapped her on the breasts with his hand and said "we will need to get a bigger bikini" or "your boobs are getting too big" or "your boobs are getting bigger". When she asked him not to touch her boobs (breasts) the applicant responded "why do you think that's weird?" The applicant tried to pull open her top and look at her boobs on 2 occasions and on one occasion her stepbrother and his friend were in the room. The applicant said at the time "you need to get a bigger bra". The daughter said on another occasion the applicant said to her "you are losing weight. You will lose your boobs."
The applicant repeatedly invited the daughter to sleep in his bed until she was around 15 years old. This was normalised by the applicant's new wife and caused the applicant's daughter to fear for her stepsiblings.
The applicant compared his daughter's body with her younger sister's body and said things to her such as "[your sister] is skinnier than you. You need to go for a run."
The daughter said that the applicant would refer to her soiled underwear in front of her stepmother and siblings and say "I have to scrub your undies".
The daughter said that the applicant had come into her room and "mooned" her by exposing his anus, testicles and penis. The first occasion was in 2017. The daughter said the applicant encouraged her brother to do this as well.
The daughter also said that the applicant and her brother would try to unlock the door while she was in the shower and she would have to get out of the shower to lock the door again. The daughter stated on one occasion she entered the applicant's bedroom in her dressing gown and the applicant tried to lift up her dressing gown and as she slapped his hand away said "can you not do that".
The daughter said that the applicant would play fight with her brother and she would see the applicant hit and grab her brothers testicles to which she said "stop doing that, I don't like it."
The daughter said it was in 2016 when she first raised with her mother her concerns about the applicant touching her inappropriately and not stopping when she asked him to stop.
In 2018, without her consent the applicant secretly recorded conversations with his daughter on 5 separate occasions in the period 21 July 2018 to 28 November 2018. In one of those recordings the applicant cross-examined his daughter on her interview with the police in 2016. The applicant sought leave in the family law proceedings to rely on transcripts of the recordings. That leave was refused.
On 11 December 2019 the applicant's daughter was cross-examined by the applicant's counsel in the family law proceedings a copy of which is in Exhibit 10. The daughter adhered to the evidence contained in her affidavit. The applicant accepts that she did not resile from the allegations in cross-examination.
It is submitted by the respondent that these allegations are reflected in substantially similar terms to the interview which was conducted by police in July 2017 concerning the alleged conduct which commenced when she was 13 years of age.
The applicant's evidence essentially denies the evidence of his daughter.

Allegation 11 as referred to in Exhibit 11

The applicant made electronic recordings of his private conversations with his daughter on 5 separate occasions without her knowledge and consent including his cross examination of her statement to the police in 2016.
The applicant was not permitted to rely upon those recordings in the contravention proceedings in the Federal Circuit Court. The court determined that those recordings were not made to protect his legal interests. Those recordings were made to further his application for quasi-criminal contravention proceedings against the children's mother.
It is submitted by the respondent that the applicant's conduct constituted a breach of trust and an abuse of the father child relationship. The recordings are made clearly in order to pursue a personal desire to punish the child's mother. It is submitted that the applicant preferred his own interests over those of his daughter. The applicant's daughter was entitled to privacy in relation to those private conversations. The applicant may have also occasioned psychological and emotional harm to his daughter and his relationship with her in circumstances where the daughter may consider that the father engaged her in conversation primarily to gain evidence rather than fulfilling his role as her father. The conflict to which his daughter was exposed is likely to be detrimental to her long-term emotional and psychological health.
The applicant relied upon the evidence of his friend contained in Exhibit 3. That evidence confirmed that the friend and his children visited the applicant for lunch and the applicant would get dolls out for his daughter to play with and Lego for his son to play with. The friend did not see any inappropriate behaviour.
The applicant relied upon the affidavit of Dr Nielssen, psychiatrist Exhibit 5. There was no information provided to Dr Nielssen which suggested any abnormal sexual interest on the part of the applicant. Dr Nielssen was cross-examined and indicated that the applicant did not display any sexual interest towards children and no particular fixation with teenage girls. Dr Nielssen does not believe that the applicant's employment in healthcare would place a child placed in his care at risk. Dr Nielssen relied upon the applicant's self-report and does not comment on the risk to his daughter of the illicit recordings to her psychological and emotional development.
However there are clearly a number of allegations by different people over periods of time which indicate that the applicant has invaded personal space by exhibiting unwanted physical contact with members of the opposite sex. A number of these allegations relate to teenage children. The respondent characterises these as a number of interpersonal boundary violations and frankly lack of respect for personal integrity. The applicant's former wife and his eldest daughter also make similar allegations.
The question whether sexual or other abuse as alleged had or had not occurred, is not determinative of whether there is an unacceptable risk of harm. As referred to with approval in NU v NSW Secretary of Family and Community Services [2017] NSWCA 221, the relevant test is whether there exists an unacceptable risk of harm.
It is the Tribunal's considered finding that there is an unacceptable risk of harm to the safety of children posed by the applicant on the basis of the allegations which cannot be discounted as groundless. The other matters which entitle the Tribunal to find that there is an unacceptable risk of harm arise from the concerns about the behaviour of the applicant. There is a distinct possibility that the allegations are truthful even though they are denied by the applicant.

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

The alleged incidents were recorded to have occurred between 21 and 15 years ago in relation to allegations 1 to 3 and 4 to 9. It is less than 3 years since the last alleged conduct giving rise to the allegations. Allegation 11 substantiated conduct occurring as recently as 2018. Since those events the applicant has not had contact with his children.
The applicant has not been charged with offences. The applicant has not been convicted of any criminal offence.
The applicant engaged in unlawful activity by recording his daughter's private conversations and in seeking to rely upon those conversations displays a lack of sensitivity and understanding of personal privacy and integrity.
The applicant denies the matters alleged occurred apart from recordings of his daughter and there is submitted on his behalf that there is no question as to his conduct since that period to be determined.

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

The applicant was aged between 11 and 49 years of age at the time of the matters which were alleged against him.
There is a pattern to the behaviour about which there are allegations. The allegations have been made by the number of different people over different periods of time.

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

One of the complainants was aged 7 years at the time of the alleged conduct.
Four of the alleged victims were in their early to late teens.
Two. of the alleged victims were adult women.
The applicant has also allegedly behaved inappropriately with his teenage son.
The Act requires protection of children until the age of 18 years.
The children were vulnerable because of their age. Some of the alleged victims were vulnerable because of their involvement in either the applicant's family, or were working closely with the applicant who was in a position of power and control. The applicant's status as a church and therefore community leader is relevant to an assessment of their relevant vulnerabilities in relation to the applicant.

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 variable. In relation to his daughter he was 30 years older than her. In relation to the other alleged victims he was 15 years older, 6- 7 years older and 3 years older than them.
The relationships were characterised by trust and an abuse of the trust.

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

The applicant knew that four of his alleged victims were children at the time of the conduct the subject of the allegations. The other allegations related to people who were adults but in a position of vulnerability because of the applicant's position and status.

The person's present age

The applicant is aged 50 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 matters complained about has not attracted adverse comment or been the subject of any further investigation.
The applicant has denied the alleged conduct or attempted to minimise the alleged conduct to normalise it.

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

The applicant has provided an assessment by Dr Olav Nielssen who was also cross-examined. That assessment is essentially supportive of the applicant's application.
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 may prospectively behave. The applicant has allegations made against him of serious breaches of trust, crossing of boundaries, and sexual abuse. The applicant has not provided evidence that he has embarked upon a course of conduct to address any deficiencies in his own personality arising from those allegations.
There is independent assessment of the risk by a psychiatrist. 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].
As previously stated, it is not necessary for the Tribunal to make any findings that the behaviour asserted in the allegations 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 known facts.
An assessment of risk has two elements. The first involves the prediction of the likelihood of the occurrence of an harmful event. The second consideration is the severity of the impact of such an event would have if it occurred, so that if the consequences of the event occurring will be significant that will have a greater bearing on the assessment of whether there is an unacceptable risk: Deiter & Deiter [2011] FamCAFC 82, at [61]; Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344 esp. at [66]; Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395.
The allegations concerning the applicant's behaviour are not inherently improbable or unbelievable. They involve allegations of the applicant's inability to maintain boundaries, disregard for other persons' physical or bodily integrity and privacy. The allegations are made by a number people over differing periods of time and are not isolated or one-off events.
It is now settled that the proper test to be applied in proceedings in respect of risk is that of "unacceptable risk to the child": M v M [1988] HCA 68 at [25]; NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 see supra. That case, M v M, dealt with past sexual abuse of a child but the principles there set out have been applied to other forms of harm, such as physical and emotional harm. It has been reiterated in a number of decisions that a positive finding of an allegation of harm having been caused to a child should only be made where the decision maker is so satisfied according to the relevant standard of proof, with due regard to the matters set out in Briginshaw. Nevertheless, it has also been applied law that an unexcluded possibility of past harm to a child or children is capable of supporting a conclusion that the child (or another child) will be exposed to unacceptable risk in the future from the person concerned: see M v M at [26].
It is also clearly the applied law that: "Whether there is an 'unacceptable risk' of harm to children is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] Fam CA 1235. This is an exercise in foresight": per Sackar J in GR v Department of Communities and Justice [2021] NSWSC 1081 at [195].
In Johnson v Page [2007] Fam CA 1235; (2007) FLC ¶93-344 the Full Court of the Family Court referred with approval to an analysis which helps to explain the High Court decision in M v M; 68. In his recent paper entitled 'Unacceptable risk - A return to basics' the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows: 1 The decisive issue is and always remains the best interests of that child. All other issues are subservient. 2 The nature of the risk is best expressed by the term 'unacceptable risk'. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. 3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies. 4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk. 5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child. 6 The onus of proof in reaching that conclusion is the ordinary civil standard. 7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard. and thereafter expanded some points contained in the summary. 69. Relevantly for the issues raised in this appeal, he noted that rather than referring to "the Briginshaw test" it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) ("the Evidence Act") …"
More recently the analysis of unacceptable risk and the assessment of allegations of risk has received attention at the highest level in the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction, in Isles & Nelissen [2022] FedCFamC1A 97. The Court convened a 5 member bench consisting of Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ. The reasons were delivered on 1 July 2022. The Court at [46] in its joint reasons stated that: "Moreover, for clarity, neither Potter and Potter nor Johnson and Page should be regarded as accurately reflecting the law." The inaccuracy, to be seen from the balance of the reasons, is obviously in relation to point 6 in the extract of paragraph [68] in Johnson and Page. The Court also referred with approval at [55] to the approach taken in the decision CXZ v The Children's Guardian [2020] NSWCA 338 referred to previously in these reasons. After referring at [52] to the decision of the High Court in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 ("MZAPC") (at [38] and [39] of that decision) the Court then observed at [53]: "The point being made, importantly for present purposes, was that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities."
In CXZ v The Children's Guardian [2020] NSWCA 338 at [12]-[26] Basten JA in his dissenting judgment (in relation to the result) analyses the manner of assessing risk to children under the Act and refers to High Court decisions which support the process articulated to arrive at the answer to the ultimate question "whether a clearance will create a real and not fanciful risk to the safety of children." In the judgment of Simpson AJA at [57]-[59] (with which McCallum JA agreed) the process is clearly articulated (see previous reference and extract).
The applicant denies the risk of harm by him in relation to the conduct alleged and does not accept that his behaviour requires change. It is not known whether the applicant is capable of changing his behaviours.
If the alleged conduct was repeated in the future the impact upon children would be significant. The alleged sexual behaviour if it occurred in the future would have a devastating effect upon a child.

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

There was no current order of a court or Tribunal brought to the attention of the Tribunal.

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

The applicant has provided information including the documents marked as Exhibits.
It was not submitted that the applicant had failed to provide any relevant information. The applicant was cross-examined.
The applicant denied the substance of the allegations.

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 submitted that in the circumstances the correct and preferable decision is that the applicant poses a risk to the safety of children.

Consideration

The Act is designed to be protective of children 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 behaviour alleged was beyond reasonable community norms, the alleged behaviour was exploitative, the alleged behaviour is part of a pattern of ongoing events, and the behaviour, if repeated, would do significant harm. There are no mitigating factors such as evidence of significant and sustained positive progress since the alleged behaviour occurred, the allegations of concerning behaviour is over a significant period, and there is no evidence that there has been a genuine and sustained effort to address the unacceptable risk of harm.
Remorse is not considered to be a factor that mitigates risk in this matter. The applicant has not shown commensurate remorse for his alleged behaviours which have been reported to have occurred over a number of years and are clearly inappropriate behaviours which pose a risk to the safety of children in his care.
The applicant stated that he requires a WWCC for his career and financial and religious reasons. The applicant states that he was awarded in 2019 a PhD for his thesis which was related to health in adolescents. The applicant wishes to lecture at a University but cannot do so without a WWCC. The applicant also states that without a WWCC he cannot attend his church unless he signs a safety agreement. It is not clear from the evidence that this is so.
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; NU v NSW Secretary of Family and Community Services [2017] NSWCA 221.
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 jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk must give primacy to protective factors whilst balancing all of the risks which may be posed to children.
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.

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.
As referred to previously in these reasons it is the Tribunal's determination that there is an unacceptable risk of harm posed by the applicant. 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, 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.
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.

Order

The orders of the Tribunal are that: 1. The decision of the Children's Guardian on 19 December 2017 to cancel the Working with Children Check Clearance under section 23 of the Child Protection (Working with Children) Act 2012 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.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2022

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

Commission for Children and Young People Act 1998(NSW)

(2006) 36 Fam LR 395

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Cases Cited (65)