DMA v Children's Guardian

NCAT Administrative and Equal Opportunity|2018-11-02

QJ [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 Deiter & Deiter [2011] FamCAFC 82 Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 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 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 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: DMA (Applicant) Children's Guardian (Respondent) Representation: Counsel/Advocates: D McMullen (Applicant) I Fraser (Respondent)

Solicitors: Legal Aid NSW (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2018/00176772 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 "DMA" in these proceedings in order to protect the identity of the applicant. Disclosure of the identity of DMA would also incidentally identify children associated with the applicant which is not in the interests of those children and such identification of them is contrary to section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). It is considered appropriate therefore to protect the identity of the applicant and to make a non publication order.
The applicant was granted a Working with Children Check Clearance on 22 October 2013. The applicant and her husband were assessed and authorised as carers by the Department of Family and Community Services in about 2010. In November 2014, two reports were made to the Department of Family and Community Services concerning allegations that the applicant and her husband were harming children in their care. The children were placed in emergency respite care while the investigation of the allegations occurred. The allegations of physical abuse, such as being hit with a spoon, placing chilli and pepper in the children's mouths, and exposure to family violence were sustained. The other allegations were not sustained. The authorisation as carers was not cancelled as a result of the investigation.
In 2015 the applicant and her husband were authorised carers for an Aboriginal foster care agency.
In January 2017 a report was made to Family and Community Services concerning allegations by a child that he had been sexually assaulted by the applicant and her husband whilst in their care. The allegations were investigated by the Joint Investigation Response Team (JIRT). In March 2017 the investigation was finalised. It was determined that the allegation was substantiated in relation to the applicant but not in relation to her husband. The applicant was listed as a "person of interest" and not as a "person causing harm". A "person of interest" is a person who is alleged to have caused significant harm to a child.
On 15 June 2017 the Children's Guardian imposed an interim bar on the applicant engaging in child-related work or residing on the same property as an authorised carer. Following the imposition of the interim bar the applicant moved out of her home. The applicant's husband continued to provide care to a child for a number of weeks after the applicant moved out of the home. The husband then informed the agency that he no longer wished to be a carer, and the child was then placed with relatives of the child.
On 5 April 2018 the Children's Guardian wrote to the applicant and informed her that she intended to cancel her clearance.
The respondent has determined that the applicant poses a risk to the safety of children and cancelled her clearance. The date upon which the clearance was cancelled is 1 June 2018.
DMA filed in the Tribunal an application for review under section 27 of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act") concerning the decision of the Children's Guardian, as stated on 1 June 2018, to cancel the applicant's Working with Children Check Clearance. That decision is the subject of this review. The application for review under section 27 of the Act in the Tribunal was filed within time, that is, on 6 June 2018.
The respondent opposes the application.
The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 apply to this particular matter due to the date of the application which was after the commencement date of those amendments: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. In CHB v Children's Guardian [2016] NSWCATAD 214 the Tribunal held that section 30(1A) of the Act applies where the Children's Guardian has made a decision to cancel a person's Working with Children Check Clearance after the commencement of the amendments and the application for review is made after the commencement of those amendments.
The Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW) amendments to the Act commenced on 25 October 2016. In particular the amendments made to section 30(1) do not apply to or in respect of a review (or an appeal arising from a review) if the review commenced before that amendment and that provision, as in force immediately before that amendment, continues to apply to and in respect of any such review or appeal: Schedule 3 Part 5 clause 25 of the Act. This review commenced after the commencement of those amendments.
The Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) ("2018 Amendment Act") was given assent on 18 April 2018 and relevantly for this review the amendment to subsection 30(1)(h) and insertion of subsection 30(1)(i1) of the Act both commenced on 1 June 2018. Section 5B of the Act was also inserted at the same time.
There were no transitional provisions in the 2018 Amendment Act.
Because of the terms of section 30 of the Interpretation Act 1987 (NSW) the amendments will be applied: see SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 per Basten JA (with whom Ward and Simpson JJA agreed) esp. at [33]-[36]. None of those amendments purport to affect or vary in any material way any rights, liabilities, or obligations of any person but simply specify existing factual matters which must be considered by the Tribunal.
The antecedent factual matters are the basis for making a determination as to the future grant of the Working with Children Check Clearance: see Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 at 31, per Jordan CJ; Robertson v City of Nunawading [1973] VR 819 at 824, per Victorian Full Supreme Court; Re A Solicitor's Clerk [1957] 1 WLR 1219; La Macchia v Minister for Primary Industry (1986) 72 ALR 23 (Full Court of the Federal Court); Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856. The presumption against retrospectivity does not apply in these circumstances. This determination is also appropriate since the nature of the review and the issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. This determination is also consistent with the reasoning in CHB v Children's Guardian [2016] NSWCATAD 214.
The applicant was subject to a risk assessment by reason of section 14 and section 15(1) of the Act.
The applicant seeks a Working with Children Check Clearance, in order to work with children in the out-of-home care sector.
The applicant is without a Working with Children Clearance now, preventing her from working in "child-related work": subsections 6(3)(c) and section 8 of the Act. That means she cannot work in the out-of-home care of children related employment sector.
The application for review was heard by the Tribunal on 2 November 2018.
The review will comply with the Act provided that the matters which must be considered in section 30 of the Act are taken into account: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.
There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.
In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998 (NSW). It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid, at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.
The Tribunal may not lawfully attach conditions which would be permitted by the legislation effectively for the grant of a conditional clearance for this and the additional reasons set out in this decision. A conditional grant of a clearance for the purpose of allowing the applicant to work with conditions and in her chosen area is not permitted by the legislation.
An order has been made under section 64(1) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. That order is continued and made in accord with the current practice of the Tribunal.

The evidence relied upon in the hearing

The applicant and respondent relied upon a large volume of documents which were tendered as Exhibits as follows: 1. Application filed 6 June 2018: Exhibit 1; 2. Affidavit of the applicant filed 18 September 2018: Exhibit 2; 3. Documents filed by the applicant on 18 September 2018: Exhibit 3; 4. Applicant's submissions filed 18 October 2018: Exhibit 4; 5. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW): Exhibit 5; 6. Further documents filed by the respondent 11 October 2018: Exhibit 6; 7. Documents produced by Family and Community Services filed by the respondent 12 October 2018: Exhibit 7; 8. Transcript of New South Wales Police interview with a child on 23 October 2017 filed by the respondent 30 October 2018: Exhibit 8; 9. Letter from New South Wales Ombudsman to children's Guardian dated 23 October 2018 filed by the respondent on 30 October 2018: Exhibit 9; 10. Respondent's submissions filed 29 October 2018: Exhibit 10.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact is determined upon the civil standard of proof which is on the balance of probabilities.
The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "…For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997."
This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.
Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]: "Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct."
The Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 ("Bronze Wing") at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted: "[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36]. [72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test. … [74]Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party."
The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 ("Karakatsanis ") at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis: "[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law. [37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be 'comfortably satisfied' of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting 'a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct'. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])] [38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).] 'The notion of 'inexact proof, and indefinite testimony or indirect references [scil. inferences]' needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.' [39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present."(footnotes and references included)
The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017 after granting leave to appeal, dismissed the appeal from Justice Button's decision and orders in Bronze Wing.
The Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil standard of proof in determining a factual matter: CJT v Office of the Children's Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61].
The effect of the Act and the 'practical onus' which falls on a party notwithstanding the principles referred to in the previous paragraphs of these reasons is as the Act states in section 27(4): "An applicant must fully disclose to the Tribunal any matters relevant to the application."
The initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened." (Citations omitted)
The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are referred to now and necessarily involve some repetition of previous statements made in earlier decisions, so that the legislative basis of this particular decision is transparent and identified for the parties.
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows: "Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence."
The section was amended with effect from 4 February 2019 to include an additional maximum penalty of 2 years imprisonment, or both 200 penalty units and 2 years imprisonment. For present purposes that is not relevant to this application.
The objects of the Act are set out in section 3 which provides: "Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
"Conviction" as defined in section 5 (1) of the Act "includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction." That is not the circumstance in relation to the applicant.
The definition of "risk to the safety of children" is a reference to a real and appreciable risk to the safety of children: section 5B of the Act.
Pursuant to section 14 of the Act a person becomes subject to an assessment requirement in the circumstances referred to in the section which is as follows: 14 Assessment requirements A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.
The applicant is subject to an assessment requirement because in March 2017 the investigation of the allegations of sexual misconduct with a child was finalised. It was determined that the allegation was substantiated in relation to the applicant. It is submitted by the respondent that the Children's Guardian was made aware of a "continuous check event" relating to the applicant which then triggered a risk assessment.
Pursuant to section 15(1) of the Act the Children's Guardian must conduct a risk assessment of the applicant. 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. ...."
The hearing before the Tribunal, because there was a cancellation of the Working with Children Check Clearance, is therefore pursuant to an application under section 27 (2) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act does not apply to this decision: see section 27 (7) of the Act.
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children's Guardian [2015] NSWSC 523.
The Tribunal is required to follow the decision in the Supreme Court BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [30]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in the often-cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order: "However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
It is also not necessary for the Tribunal to make any findings that allegations not the subject of convictions in fact occurred: Children's Guardian v BQJ [2016] NSWSC 869 at [64] per Button J.
In Office of the Children's Guardian v CFW [2016] NSWSC 1406, Harrison J at [14]-[17] considered that the Tribunal should first consider whether positive findings could be made about any alleged acts of wrongdoing on the balance of probabilities or secondly, whether the Court or Tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding that something occurred will have a significant impact upon the ultimate decision. Even if there is no positive finding able to be made on the evidence presented, the Tribunal is required to consider questions of risk which may be indicated by all of the facts. In Children's Guardian v CKF [2017] NSWSC 893, Davies J stated that whether a finding is made or not is a factor which is to be weighed up in assessing whether the person poses a risk to safety of children.
The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children's Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children's Guardian at [33]. The reasoning behind the Tribunal's determination is set out in these reasons.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.
The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.
The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.
In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.
The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following: "All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."
In the following paragraph the Minister stated: "While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."
As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.
In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states: "Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."
If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.
It is the Tribunal's assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight, are not determinative of the current assessment of risk on the whole of the information before the Tribunal. The applicant in this matter does not seek an approval subject to conditions.

The Issue

As previously referred to, the primary issue before the Tribunal in this application is what the correct and preferable decision is, having regard to the material before the Tribunal, in relation to the cancellation of a Working with Children Check Clearance held by 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.
In CGR v Office of Children's Guardian [2018] NSWSC 26, Justice Lonergan gave consideration to the circumstances where the applicant had her clearance cancelled under section 23 of the Act. This Supreme Court decision observed that the Children's Guardian is required to cancel a person's Working With Children Check Clearance, pursuant to section 23 of the Act, if it is satisfied that such a person poses a risk to the safety of children. There was no error of law where the applicant's understanding of child protection issues, in the situation she was in, was clouded by a strong loyalty to her immediate family and a general lack of understanding about issues concerning the protection of vulnerable children in care. Hence, her understanding of her role as a person authorised to provide out-of-home care for vulnerable children was lacking. It was found this lack of understanding was indicative of a lack of the protective qualities necessary for persons engaged in child-related work and hence the applicant posed a risk to the safety of the children placed in her care. The question was whether she continued to pose a risk to the safety of children today if her clearance were restored to her. It was found that the applicant continues to pose that risk. The Tribunal found that the applicant continues to hold the very strong views that she has always held and failed to demonstrate that she reflected on her conduct in any way, especially in her dealings with the specified child after her brother was charged. The Tribunal was not persuaded that issues of risk would not re-occur if the applicant's clearance were to be restored to her. In these circumstances, the Tribunal found that the decision of the Children's Guardian to cancel the applicant's clearance is the correct and preferable decision and should be affirmed. The Supreme Court found no error in this determination.

Considerations and the Evidence

The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in sub sections 15 (4) and 15 (4A) of the Act which are more aptly descriptive of that process than is sub sections 30 (1) and 30(1A) of the Act. It is relevant to note that the factors contained in the subsections address the same considerations expressed in slightly different language.
Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to and consider both sections 30 (1) and section 15 (4) considerations as required by both sections.
Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.
Section 15 of the Act relevantly provides as follows: 15 Assessment of applicants and holders ..... (4) In making an assessment, the Children's Guardian may consider the following: (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (4A) The Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children's Guardian is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and (b) it is in the public interest to make the determination. (5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.
Section 30 of the Act relevantly provides in relation to this application as follows: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person") to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.
The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is recited under subheadings referring to the required considerations under the Act.
Also, as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant and the circumstances around the applicant's conduct: section 63 of the Administrative Decisions Review Act.

The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar

The applicant is not a disqualified person. The applicant was not convicted of any offence. The applicant has not been the defendant in Apprehended Domestic Violence Order proceedings.
The applicant held a clearance since 2013, although she and her husband were authorised carers since 2010, and the clearance was cancelled pursuant to section 23 of the Act on 1 June 2018. Prior to that cancellation an interim bar was imposed as referred to earlier in these reasons.
The purpose of the risk assessment is to be protective of children and not punitive of the applicant. The risk assessment identifies factors which are relevant in determining the risk the applicant may pose to children. The legislature has included this factor as a matter relevant to the assessment of risk. A realistic assessment of the seriousness of the conduct is necessary to understand the risk issue. The context is relevant to the assessment of risk.
The first allegations were investigated by Family and Community Services and none were found to be sustained or confirmed. The allegations were that during periods of respite on weekends at the applicant's home the applicant swore in the presence of the 7-year-old child and made the 5-year-old child almost choke on a tablet by not giving him enough water. The applicant was alleged to have kept prizes won by both children at a fete. The applicant was alleged to have made disparaging comment about the carer. The applicant was alleged to have thrown the 7 year old on the bed and sprayed her mosquito bites with "cockroach spray". The younger child did not confirm any of the allegations made by the older child. The children continued to attend the applicant's home for respite after the allegations were investigated.
It was alleged in 2011 that the applicant had scratched the older child's leg when she was running to the toilet. It was also reported that the children had observed the applicant's husband urinating by the car in front of them, on the way home from the swimming pool. It was also raised that the applicant had called someone (possibly the carer) "a piece of crap" to the younger child and kept the children's clothes. These allegations were investigated but Family and Community Services continued the applicant's authorisation and placed another child in the care of the applicant and her husband. Subsequently, Family and Community Services placed two additional children in the care of the applicant and her husband on a long-term basis. The applicant states that there were no additional conditions placed upon the authorisation, nor was the applicant required to undertake additional support or training.
The reportable conduct unit at Family and Community Services in June 2012 informed the applicant that the allegation she threw the child on her bed and sprayed her with cockroach spray were not sustained. The allegation of swearing or disparaging comments was not confirmed and did not meet the definition of reportable conduct.
In 2013 the applicant and her husband were authorised carers with an agency different to Family and Community Services authorisation.
Between 2013 and 2014 a number of children were placed with the applicant and her husband on a short-term or respite basis. Another 3 children were placed in their care by the agency.
On 22 August 2014 a report was made that the applicant had been given an incorrect dose of his prescribed medication presumably for ADHD. The applicant reported that she was giving the dose following verbal advice from the child's doctor. When the doctor was contacted by the caseworker she said she had advised the applicant to follow the prescribed dosage. The applicant when told this said that she had disposed of the medication. No further action was taken by the agency.
On 22 September 2014 a report was made to Family and Community Services by one of the children in the applicant's care that her sister was smacked hard enough to leave bruises. This child was not in the applicant's care because she had been moved in May 2014 after the applicant raised concerns about her need for more intensive support to deal with the impact of her brother's death in a house fire. This allegation was not investigated.
On 12 November 2014 a report was made that the applicant smacked a child on the bottom. The allegation was that other children were also smacked and he is also reported to have said that the other children get smacked, not him. This allegation did not meet the definition for risk of significant harm, because it was thought not to involve physical injury. The agency arranged respite care and provided additional support and training, and also counselling for the applicant and her husband to attend. The applicant in her affidavit stated that the agency came to her home and asked the child whether the allegation was true. The applicant says that he said it was not true. The applicant says that the agency did not ask the applicant to undertake additional training or counselling as a result of this allegation. There is no corroborative evidence from the agency that a request to undertake additional training or counselling was made.
On 27 November 2014 a report was made to Family and Community Services that a child disclosed physical abuse, including use of a wooden spoon. It was alleged that two of the children were made to put chilli and pepper in their mouth, were locked in a bedroom using ropes around the door handle, and had to climb out the window. It was alleged that the children were sworn at, had their iPad stolen and were exposed to verbal abuse between the carers. The child was allegedly abused for bedwetting and left in her wet sheets, and the applicant did not let the children have showers. The report was also made that the applicant swore at another child, smacked him and then her husband locked him in his room. These allegations were investigated jointly by the agency and Family and Community Services. The children were interviewed at their school or childcare. On 18 December 2014 the applicant and her husband were interviewed by an external investigator. The allegations of physical abuse, such as being hit with a spoon, placing chilli and pepper in the children's mouths, and exposure to family violence were sustained. The other allegations were not sustained.
On 12 December 2014 it was reported that a female child had made a disclosure that she had been touched on her bottom and "wee wee" by another child and the applicant's husband. The female child was interviewed by JIRT on 18 December 2014 but did not make a disclosure. The allegation was not substantiated and JIRT took no further action. This allegation was not substantiated by Family and Community Services. This allegation can be disregarded for the purposes of this risk assessment.
On 16 February 2015 a female child made disclosures about being sexually touched by a male child while living with the applicant and her husband. It was alleged that the applicant was told about the male child's behaviour towards the female child. It was said that the applicant did not believe her. This was a potentially reportable allegation of neglect against the applicant.
On 17 June 2015 the Ombudsman wrote to the agency and agreed there was consistency in the children's evidence that they were smacked but it would be preferable to consider the contact as a pattern of "ill-treatment" and make findings in that regard rather than physical assault. The allegations of chilli and pepper in the children's mouths was thought by the Ombudsman to be an allegation which could not be sustained, because it was only mentioned by one child and the carers denied it and no rationale was given by the investigator as to why it was considered the allegation could be sustained. The Ombudsman did not ask for that finding to be reviewed and was not substituting their own finding. The Ombudsman considered that the allegation of exposure to family violence would need to identify that the children were caused ongoing distress and psychological harm rather than simply exposure to fighting between the carers. The children's interviews were fairly brief and did not canvass this issue in any depth. In those circumstances, the Ombudsman preferred an appropriate finding of "not sustained-insufficient evidence".
The Ombudsman requested that the further allegations on 12 December 2014 and 16 February 2015 be investigated as well as the allegation of over-medicating one of the children in their care. It was noted by the Ombudsman that the applicant did not currently have any children in her care. The Ombudsman raised questions as to whether the applicant was to be de-authorised, whether any other children were to be placed with them, and whether a carer reassessment had been conducted. There were clearly deficiencies in the agency's handling of these allegations.
On 30 January 2017 an allegation was made by a male child 8 years of age against the applicant and her husband. The child had been in their care since 2010. He had been restored to his mother's care at the time the allegation was made. It was alleged that he had been permitted to watch pornographic movies and that the applicant and her husband threatened to murder him if he ever told anyone. It was also alleged that the applicant had inserted her fingers into his bottom. The child also alleged that the applicant touched his penis in a rubbing motion underneath his clothing. The allegations were investigated by police and Family and Community Services and the child was interviewed. The applicant and her husband were also interviewed. They denied the allegations. The police took no action. Family and Community Services "substantiated" sexual abuse, however declined to list the applicant as a "person causing harm", instead listing her as a "person of interest". The rationale for this is identified in Exhibit 5 at pages 340-341. This rationale was endorsed by the appropriate delegate in Family and Community Services.
The reasoning for concluding that the sexual abuse was substantiated took into account the fact that the disclosures contained inconsistencies, and the disclosures were made after he was found to be engaging in sexually harmful behaviours towards his sister. The child's mother asked him whether anyone had touched him inappropriately. He then made the disclosure. When interviewed the child repeated the allegation that the applicant had inserted her finger into his anus and disclosed that on another occasion, she had rubbed his penis. The child stated that he asked her to stop on this occasion and she said no. The child alleged that the applicant had filmed both assaults on her mobile phone. No recordings were discovered. The applicant and her husband were interviewed and denied all the allegations against them.
While the ordinary meaning of substantiation includes an assessment of the truth of the allegation, at this level of assessment it does not necessarily import a finding of truthfulness of the allegation but simply reflects the fact that there was an interview of the child which supports the original report.
It is concerning that some of the allegations were not properly investigated and some appear to have not been investigated at all. The allegations of physical abuse are particularly concerning because as authorised carers the applicant and her husband are not permitted to use physical discipline at all. If the allegation does not meet the threshold of significant harm it is still relevant to an assessment of risk. A finding of ill-treatment falls into a similar category.
In this matter the applicant submitted that, based on the material tendered, the Tribunal is unable to make positive findings in relation to the allegations that the applicant (and her husband) harmed children in her care.
The respondent's submissions have summarised the allegations made against the applicant. The applicant's submissions also refer to the allegations but do so in more detail and identify 6 matters to place the allegations in a relevant factual context.
The first matter to observe is that there is no criminal history or relevant domestic violence history for either the applicant or her husband. This is a relevant consideration which is referred to later in these reasons.
The second matter is that a number of the allegations were not substantiated, or to put it more plainly in the context of this risk assessment, were not considered established on the balance of probabilities. However, there was substantiation of at least one allegation.
The applicant had a child in her care from December 2015 to June 2017 when the interim bar was imposed. During this period of time there were no misconduct allegations, workplace investigations or reportable conduct. The allegations which were made span from 2010 until late 2014. The later period of time during which there were no allegations made is in contrast to the previous 4 years.
The next matter to observe is that the Ombudsman disagreed with the assessment of the allegations by the agency and came to the view that some of the allegations which were held sustained by the agency could not, in the opinion of the Ombudsman, be sustained or lacked sufficient evidence.
It would also appear that the agency considered that the evidence which was available was insufficient, and that the original investigation had been poorly managed.
Lastly, in amplification of the previous paragraph there are obvious and significant deficiencies in the investigation of some of the allegations.
The allegation of sexual abuse which involves penetration of the child's anus by the applicant, and touching his penis in a rubbing motion underneath his clothing, is objectively serious. Similarly, allegations of physical abuse and ill-treatment of various children in the care of the applicant are also objectively serious.

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

The alleged incidents were said to have occurred between December 2010 and 2015.
The applicant has not been charged with any criminal offence. The applicant has therefore also not been convicted of any criminal offence. The applicant has not been the defendant in any Apprehended Domestic Violence Order proceedings.
The applicant was the carer for another child between 2015 and June 2017 without any reported concerns or incidents. There were no steps taken to deauthorise the applicant as a carer before the imposition of an interim bar.

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

The applicant was aged between 25 and 29 years of age at the time of the matters which were raised against her.

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

The children were aged between 12 months and 7 years of age at the time of the alleged incidents.
The Act requires protection of children until the age of 18 years.
The children were very young when the alleged conduct occurred. They were vulnerable because of their age and because they were entitled to expect to be protected by their carers from abuse and domestic violence.

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 about 20 years. The applicant was the children's authorised carer.

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

The applicant knew that the alleged victims were children.

The person's present age

The applicant is aged 33 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 likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

The applicant submitted that the Tribunal is entitled to take account of the fact of the making of the allegations in forming an opinion about risk and relevantly the risk that the applicant will engage in the alleged behaviour.
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 prospectively behaves. The applicant has consistently denied the allegations.
There is no independent assessment of the risk by a psychologist or 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].
The use of actuarial risk assessments is not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and "gut feeling" play a determinative role in making a judgment.
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 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.
If the alleged conduct was repeated in the future the impact upon children would be significant. The alleged sexual abuse if it occurred in the future would have a devastating effect upon a child. All of the children who were in the applicant's care were the subject of neglect or abuse prior to being placed into her care. The effects of trauma and abuse are cumulative and it is likely that children in that position will suffer significant additional trauma.

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 now provided information including the affidavit which is Exhibit 2.
It was not submitted that the applicant had failed to provide any relevant information. The applicant was cross-examined. The impression gained from her evidence is that the children (or at least some of them) were a handful because of their pre-existing issues and/or diagnoses, but the applicant thought that she had a great relationship with the children.
The applicant denied 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 and the Minister's second reading speech identifies that there are a number of matters which may be relevant to an assessment of risk.
The applicant has denied the allegations.
The applicant stated that she doesn't intend to become an authorised carer again if she is granted a Working with Children Check Clearance. The applicant stated that she wished to stay with her mother and aunt who are authorised carers. The applicant cannot do that if she does not have a clearance.
There have clearly been deficiencies in the investigations which have been undertaken. The Ombudsman has identified a number of those deficiencies.
The Tribunal is not in a position to find to the relevant standard that the factual matters behind the allegations of sexual abuse actually occurred. There is, however, no persuasive reason to discount the finding made by others that any of the allegations were substantiated or sustained and they cannot be discounted as groundless.
On 18 December 2014 the applicant and her husband were interviewed by an external investigator. The allegations of physical abuse, such as being hit with a spoon, placing chilli and pepper in the children's mouths, and exposure to family violence were sustained.
On 17 June 2015 the Ombudsman agreed there was consistency in the children's evidence that they were smacked but it would be preferable to consider the contact as a pattern of "ill-treatment" and make findings in that regard rather than physical assault. The allegations of chilli and pepper in the children's mouths was thought by the Ombudsman to be an allegation which could not be sustained, because it was only mentioned by one child and the carers denied it and no rationale was given by the investigator as to why it was considered the allegation could be sustained. The Ombudsman did not ask for that finding to be reviewed and was not substituting the finding. The Ombudsman considered that the allegation of exposure to family violence would need to identify that the children were caused ongoing distress and psychological harm rather than simply exposure to fighting between the carers. The children's interviews were fairly brief and did not canvass this issue in any depth. In those circumstances, the Ombudsman preferred an appropriate finding of "not sustained-insufficient evidence".
Family and Community Services "substantiated" sexual abuse, however declined to list the applicant as a "person causing harm", instead listing her as a "person of interest". The rationale for this is identified in Exhibit 5 at pages 340-341. This rationale was endorsed by the appropriate delegate in Family and Community Services.
The assessment of risk requires that consideration be given to the allegations even if no positive finding can be made.
There have been a wide-ranging number of allegations made about the applicant's care of children over a number of years. It is true that allegations of physical abuse or ill-treatment have been made and to some extent considered established by those investigating those allegations.
Having regard to all of the matters referred to previously in these reasons it is the Tribunal's determination that there is an unacceptable risk of harm posed by the applicant. That unacceptable risk of harm can exist independently of a finding on the balance of probabilities that particular events have occurred: BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33]; Children's Guardian v CFW [2016] NSWSC 1406.
The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.
The Tribunal agrees with the reasoning in CHB v Children's Guardian [2016] NSWCATAD 214 at [109]-[124] and the provisions of section 30 (1A) of the Act apply to this application.
The Tribunal is required to consider subsection 30(1A) of the Act in the event that the Tribunal considers that the applicant does not pose a risk to children. The finding of the Tribunal is that the applicant does pose a risk to the safety of children. Therefore, this provision does not apply to this matter. However, in the event that the Tribunal is in error concerning the risk the applicant poses to the safety of children it is necessary to consider this provision. That subsection provides that the Tribunal may not make an order under this Part of the Act which has the effect of enabling a person, or the affected person, to work with children in accordance with this Act unless the Tribunal is satisfied that: 1. a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child related work, and 2. it is in the public interest to make the order.
The Tribunal has previously considered this provision in CSZ v Children's Guardian [2017] NSWCATAD 57, where an enabling order was made, and in CHB v Children's Guardian [2016] NSWCATAD 214, where the applicant had a clearance cancelled by the Children's Guardian and the Tribunal confirmed that decision. It was observed that analogous to the Victorian legislative scheme, the matters in s 30(1A) of the Act and its Victorian equivalent only need to be considered once the risk test has been satisfied: see ZZ v Secretary, Department of Justice [2013] VSC 267.
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence."
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."
Taking into account the paramount consideration and the objects of the Act, assuming knowledge of various allegations of physical abuse and ill-treatment and the findings made by the various investigative bodies, including in particular the sexual abuse allegation in relation to the applicant, it is determined that a reasonable person would not permit his or her child to have direct contact with the applicant unless it was directly supervised by another person while the applicant was engaged in any child -related work.
This determination is consistent with the objects of the Act and takes into account the variety of the forms of abuse contemplated in the offence creating provision in section 227 of the Children and Young Persons (Care and Protection) Act 1998.
Since the Tribunal is not satisfied that a reasonable person would allow his or her child to have contact with the applicant contemplated by s 30(1A)(a), the Tribunal is precluded from making an order enabling the applicant to work with children in accordance with the Act. It is thus not necessary to consider the application of s 30(1A)(b).

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

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

Conclusion

There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]; Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
If the applicant is granted a clearance she 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, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act, referred to in detail previously in these reasons, the correct and preferable decision having regard to the material before the Tribunal is that the applicant does pose a risk to the safety of children and should not have a Working with Children Check clearance. The decision of the Children's Guardian should therefore be confirmed.

Order

The orders of the Tribunal are that: 1. The decision of the Children's Guardian on 1 June 2018 to cancel the applicant's Working with Children Check clearance under section 23 of the Child Protection (Working with Children) Act 2012 (NSW) is confirmed. 2. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 3. It is noted that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2019

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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