FPE v Children's Guardian

Introduction

1. The applicant is known by the pseudonym "FPE" in these proceedings in order to protect the identity of the applicant. Disclosure of the identity of FPE 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.
2. On 10 September 2019, the applicant applied for a Working with Children Check Clearance (WWCC) nominating Transport Services for children (bus driver) as the child related employment sector.
3. On 20 October 2022, the Children's Guardian wrote to the applicant and informed him that his WWCC application was refused pursuant to section 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act")
4. The respondent determined that the applicant poses a real and appreciable risk to the safety of children.
5. FPE filed in the Tribunal an application for review under section 27 of the Act on 9 November 2022 concerning the decision of the Children's Guardian, as stated on 20 October 2022. That decision is the subject of this review due to the following circumstances.
6. The applicant applied for a stay of the refusal decision pending the determination of the application. On 24 November 2022, Senior Member Dr Lucy refused the stay application.
7. The respondent opposes the application for review of the decision and seeks that the original decision is confirmed.
8. The Act initially came into force on 15 June 2013.
9. 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.
10. The application for review was heard by the Tribunal on 12 May 2023.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 refuse the WWCC for the reasons which follow.

The evidence relied upon in the hearing

1. In addition to the Application filed annexing the decision refusing 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 9 November 2022: Exhibit 1; 2. Applicant's bundle of documents filed 3 April 2023: Exhibit 2; 3. Applicant's bundle of documents filed 13 April 2023: Exhibit 3; 4. Applicant's written submissions: Exhibit 4; 5. Respondent's section 58 Administrative Decisions Review Act 1977(NSW) (ADR Act) (section 58 documents): Exhibit 5; 6. Respondent's Bundle of documents filed 1 February 2023: Exhibit 6; 7. Respondent's Supplementary Bundle of Evidence filed 5 May 2023: Exhibit 7; 8. Submissions of the respondent filed 18 April 2023: Exhibit 8.
2. 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.
3. 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.
4. 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."
5. 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.
6. 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."
7. 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."
8. 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)
9. 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.
10. 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].
11. 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."
12. 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)
13. 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

1. 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 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.
2. 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."
3. 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."
4. The section 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.
5. 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."
6. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
7. "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."
8. 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.
9. 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.
10. 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. ...."
11. 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. …
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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].
18. 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.
19. 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."
20. 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.
21. 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.
22. The Court of Appeal has 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.
23. 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.
24. In Isles & Nelissen [2022] FedCFamC1A 97, Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ, at [55] considered the issue and manner of assessment of future unacceptable risk and explicitly approved the decisions in CXZ and NU.
25. The likelihood of future abuse or future unacceptable risk of harm is a matter which is not dependent on a finding that a past event occurred on the balance of probabilities or on the Briginshaw standard of satisfaction in relation to proof.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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."
32. 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."
33. 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.
34. 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."
35. 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.
36. 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

1. 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 refusal of the Working with Children Check Clearance: 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].
2. 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.
3. 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].
4. 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

1. 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.
2. 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.
3. 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.
4. 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 may determine an applicant or holder does not pose a risk to the safety of children only if the Children's Guardian is satisfied - (a) a reasonable person would allow the person's child to have direct contact with the applicant or holder - (i) while not directly supervised by another person, and (ii) while the applicant or holder was engaged in child-related work, and (b) the making of the determination is in the public interest. (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.
5. 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 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.
6. 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.
7. 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

1. The applicant is not a disqualified person.
2. The applicant is married and has 2 young children. The applicant states that he has separated from his wife but they remain living in same household and share finances for practical reasons.
3. The respondent's submissions set out in a convenient format the following events. The documents supporting this summary are in Exhibit 5.
4. According to a JusticeLink request made by the respondent, on 23 January 2017 the applicant and his wife engaged in a verbal argument in their home. The applicant threw a pair of thongs at his wife which struck her in the head. The applicant was then alleged to have struck his wife with an open hand on her arms and other areas of her body. The wife went into another room and the applicant followed her, continuing to strike her on the arms and back. The applicant then hit his wife with the thongs. The wife ran away from the applicant into the backyard apparently in order to avoid any further assault.
5. The applicant was charged with common assault (domestic violence) on 24 January 2017 and an interim apprehended violence order was imposed, with the applicant as the defendant, for the protection of his wife. The applicant was sentenced to a 12 month section 9 bond, under the Crimes (Sentencing Procedure) Act 1999 No 92 (NSW), which on 18 April 2017 on appeal to the District Court was varied to an 18 month section 10 bond under the Crimes (Sentencing Procedure) Act.
6. Section 9 of the Crimes (Sentencing Procedure) Act provides: 9 Conditional release orders (1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if - (a) the court proceeds to conviction, or (b) the court does not proceed to conviction but makes an order under section 10 (1) (b). (2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors - (a) the person's character, antecedents, age, health and mental condition, (b) whether the offence is of a trivial nature, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. Note - These factors are considered under section 10 in respect of an order under section 10 (1) (b) in connection with a conditional release order without a conviction. (3) To avoid doubt and without limitation - (a) a fine and a conditional release order cannot be imposed in relation to the offender in respect of the same offence, and (b) a conditional release order with a conviction may be made as an alternative to imposing a fine. (4) This section is subject to the provisions of Part 8.
7. Section 10 of the Crimes (Sentencing Procedure) Act provides: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders - (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9), (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under subsection (1) (b), a reference to a conditional release order made under section 9 pursuant to that paragraph. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied - (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to discharge the person under a conditional release order. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors - (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction - (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under the Victims Rights and Support Act 2013, Part 6, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. Note - Certain other Acts and regulations contain provisions to the effect that an order under this section made in respect of an offence is to be treated as a conviction for certain purposes of the legislation concerned. Accordingly, those provisions apply to an order under subsection (1) (b) in respect of the offence and a conditional release order made pursuant to that paragraph. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.
8. Section 5 of the Act contains the following definitions: conviction 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. criminal history - see section 5C.
9. Section 5C of the Act defines further: 5C Meaning of "criminal history" (1) A person's criminal history includes - (a) convictions (including convictions that have been spent, quashed or set aside or for which a pardon has been granted), despite anything to the contrary in the Criminal Records Act 1991, and (b) criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged, and (c) convictions or findings to which section 579 of the Crimes Act 1900 applies (despite the provisions of that section). (2) In this section - conviction has the same meaning as it has in the Criminal Records Act 1991.
10. The bonds under the Crimes (Sentencing Procedure) Act were made after a finding of "guilty" and are convictions for the purposes of the application under the Act and to be included in the reference to the applicant's criminal history in these proceedings.
11. According to a JusticeLink request made by the respondent, on 2 July 2017 the applicant and his wife engaged in a verbal argument at home. The wife and the children left the home. The applicant became enraged at his wife leaving, and followed her whilst continuing to argue. The applicant returned inside and threw a vase at the lounge room window, which smashed a panel of glass.
12. The applicant was charged with contravene prohibition/restriction of AVO (domestic) and destroy or damage property (domestic violence) in relation to his conduct. The applicant was sentenced to a 12 month section 9 bond under the Crimes (Sentencing Procedure) Act including attendance at counselling, educational development, drug or alcohol rehabilitation. On 20 October 2017 on appeal to the District Court the sentence was varied to a two-year section 10 bond under the Crimes (Sentencing Procedure) Act.
13. On 28 June 2019 a Risk of Significant Harm (ROSH) report was made to the child welfare authority. It was alleged that the applicant's daughter disclosed that 2 weeks prior she was hit across the face by the applicant. The daughter also stated to the caller that she was scared of the applicant did not feel safe to return home. The daughter reported that her father hits her mother and she bleeds. The daughter gets her mother some water and tried to stop her crying because if she stops crying her father will not hit her anymore but if she keeps crying he will continue. The daughter reported that she sees and hears her parents fighting all the time. The daughter said she was hit across the face by the applicant when he was hitting her mother.
14. According to a JusticeLink request made by the respondent, on 4 July 2019 the applicant and his wife engaged in a verbal argument at home. The wife asked the applicant to stop yelling at her because he was upsetting the children, as she had noted that both the children were crying. The applicant slapped his wife on the side of her face. The wife took the children outside away from the applicant until police arrived.
15. Later that day the applicant was charged with common assault relation to his conduct. The applicant was sentenced to a 12 month conditional release order without conviction. On 9 July 2019, a further interim AVO was imposed on the applicant, for the protection of his wife.
16. On 21 October 2019 a final AVO was imposed on the applicant, for the protection of his wife, which expired on 20 October 2021.
17. On 16 March 2020 a home visit was conducted by the child welfare authority for the wife at the home in which the applicant's family resided. The applicant was not living there at that time. The wife stated that the children had been scared as the result of domestic violence occurring in the home, that is the reason why children spoke to staff members at the children's school concerning their situation at home. The wife acknowledged she was using smacking as a form of discipline to correct the children's behaviour.
18. According to a JusticeLink request made by the respondent, on 12 November 2020 the applicant and his wife were engaged in a verbal argument at home. The applicant slapped his wife on the face. The wife pushed the applicant and the applicant pushed the wife back, causing her to fall to the ground. The applicant then kicked his wife to the back of her head. The applicant slapped his wife on the face while she was on the ground. The wife left the premises and screamed for help. The neighbour heard the wife screaming for help. The applicant's wife ran to the neighbour for refuge and the neighbour called the police.
19. It is recorded that the police observed the wife to be visibly upset as she was crying and shaking. The police used body worn video to record the wife's version of events. The police observed and photographed swelling to the right side of the wife's face and a red mark to the left forehead. The wife was unwilling to provide a statement to the police because she said she was frightened of the repercussions. Police also observed a smashed iPhone on the ground at the entry. The wife stated to the police in response to a question from then that the applicant had smashed the phone during the incident. There were food and sauce stains observed by the police on the wall and floor beside the bed, and similar food stains on the wife's shirt.
20. Later that day the applicant was charged with common assault (domestic violence), contravene prohibition/restriction in AVO (domestic), destroy or damage property (domestic violence), and assault occasioning actual bodily harm (domestic violence). The wife chose not to provide a statement to the police and gave evidence at the hearing of the charges, that while she remembered police attending her home, she did not remember what occurred before their attendance or what she spoke to them about.
21. After a contested hearing before the Local Court the applicant was found not guilty of the charges of destroy or damage property (domestic violence) and assault occasioning actual bodily harm. The applicant was found guilty of common assault and contravene prohibition/restriction in AVO (domestic) for which he was sentenced to a 12 month community correction order and $500 fine respectively. The applicant successfully appealed these convictions, which were set aside on 8 April 2022.
22. On 23 November 2021 a final AVO was imposed on the applicant for the protection of his wife. A further AVO was served on 8 April 2022 which expired on 7 April 2023.
23. There were alleged to be repeated instances of physical assault and domestic violence in the presence of the children, and a report that the applicant had in fact physically assaulted his daughter.
24. The question whether 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. The criminal standard of proof is not relevant to these allegations for the purposes of risk assessment under the Act, and acquittal or setting aside the convictions does not change the fact that under the Act there is a particular meaning given to "conviction" and "criminal history" so that the charges are relevant to the assessment of risk under the Act.
25. The applicant pleaded guilty to some of the earlier charges and as he submitted to the Tribunal, the Magistrate and/or Judge considered his offending to be on the lower end of objective seriousness.
26. The applicant acknowledged in his submissions that his "behaviour was unlawful and unacceptable."
27. According to the police records there have been 36 events involving the applicant, the majority relating to domestic violence incidents.
28. The matters which have been recorded earlier in these reasons which resulted in legal proceedings against the applicant in 2020 are more likely than not to have occurred.
29. 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 reports made which cannot be discounted as groundless. The 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 reasonable possibility that the allegations which did not lead to convictions are truthful even though they may be denied by the applicant.

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

1. The alleged incidents were recorded to have occurred between 2017 and 2020. The most recent AVO expired on 7 April 2023.
2. This is a relatively short period of time. There have been no other domestic violence allegations since that time.

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

1. The applicant was aged between 31 and 34 years of age when the offences and other matters occurred.

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

1. The difference in age between the applicant and his wife is 4 years so she was aged 31 to 34 years when the offences and conduct occurred. The applicant's wife has no relatives to support her in this country. The applicant's wife has financial dependence as well as dependence on the applicant for accommodation for herself and her children.
2. The applicant exercised control over his wife.
3. The difference in age between the applicant and his children is 29 and 32 years respectively. They were aged between 7 and 11 years old and 4 and 8 years old when the offences occurred. The children were particularly vulnerable due to their age, and the offences occurred in the compromised safety of their own home. The children were exposed to physical abuse between their parents, and there were allegations of physical abuse in relation to both of the children, perpetrated by the applicant.
4. The Act requires protection of children until the age of 18 years.

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

1. The difference in age between the applicant and the victims is set out under the previous heading.

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

1. The applicant knew that his wife was not a child.
2. The applicant knew that his children who were present in the home were exposed to verbal abuse and physical assaults perpetrated by him against their mother. The applicant is also alleged to have inflicted physical abuse on his children.
3. The applicant's daughter stated that she was scared to go home because of her father's behaviour.

The person's present age

1. The applicant is aged 40 years at the time of hearing.

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

1. The applicant has a criminal history which is considered by the Tribunal to be at a high level of seriousness in the context of working with children.
2. The applicant's conduct since the matters complained about has not attracted adverse comment or been the subject of any further investigation.
3. 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

1. The applicant relies upon the report of the psychologist Ms Lapierre dated 21 March 2023. The applicant submits that he has made significant progress in relation to his heightened anxiety and depression. The applicant submits that he has attended 3 psychology sessions to assist in anger management and relaxation techniques. The applicant also submits that he attended 5 psychology sessions to assist in gaining further insight into his mental health.
2. This counselling was commenced as a condition of a court order, a fact of which Ms Lapierre was apparently not made aware by the applicant. The applicant did not attend as a result of his own recognition of his deficits or the severity of his conduct. The applicant has not demonstrated insight and tends to minimise the seriousness of his behaviour and its impact on his children. As an example, in his application for review the applicant states "there were some hiccups in my family life with arguments arising out of nothing. These ended as DV and my wife reported to police [a] few times who obtained ADVO's making me the respondent." In relation to the children, he incorrectly writes: "…there were no complaints that my two children were at risk, except for them being present at home on one occasion (from memory)."
3. When asked about this counselling with Ms Lapierre by the respondent's assessment officer in 2022 the applicant stated to the effect that: "…he was required to see [the psychologist] due to his section 10 good behaviour bond. He said that the court ordered him to see someone to talk about his relationship with his wife and how he manages conflict. When asked if he found engaging with a psychologist helpful, he said yes, he couldn't remember how it benefited him because it was 3 years ago however he can recall benefiting from debriefing with [the psychologist] and relaxing his mind. He said he stopped seeing [the psychologist] because 'I was fine. I didn't need it anymore.'"
4. Since this conversation the applicant recommenced seeing the same psychologist, who gave evidence to the Tribunal. The applicant saw the psychologist between October 2019 and January 2020. He then recommenced seeing her from September 2022 until May 2023. It is the psychologist's recommendation that sessions should continue. The applicant in her opinion minimises domestic violence. The psychologist gave evidence that children are affected by witnessing domestic violence which causes them psychological harm, especially if there is a lot of tension in the home. The severity of the harm is dependent on the child's resilience, and without seeing the children specifically, the psychologist could not gauge the extent of harm caused to these particular children.
5. The key focus of the therapy has not been about domestic violence. The self-report from the applicant is that he is no longer experiencing heightened levels of anxiety, depression and stress. It was the psychologist's written evidence that she considered the applicant "is not a threat to the community, does not pose a risk to the safety of children and the likelihood of reoffending is low." This evidence was based on an incomplete disclosure from the applicant to the psychologist. The evidence remains that the applicant has minimised the domestic violence in his relationship and this lack of frankness and insight by him qualifies the psychologist's written evidence. Recognition and taking responsibility for his previous behaviour is part of his future successful treatment, and the evidence so far evidences a lack of insight by the applicant into the seriousness of the domestic violence which he perpetrated.
6. The applicant also told the assessment officer that he "doesn't have any convictions." The applicant is recorded to have said: "…the offences were all very minor, he never went to prison and just received section 10 bonds. The applicant said that he has never assaulted his wife then recalled throwing a thong at her. He said that he has never hit or kicked his wife, that the incidents were verbal arguments and were never witnessed by the children."
7. When the applicant was reminded that he was found guilty the applicant stated: "the police always believe the woman, that if his wife called the police now and claimed to have been assaulted, he would be charged." When reminded that the court found him guilty, not police, the applicant said: "this was based on false assumptions."
8. The applicant has undertaken meditation and spiritual practice in order to assist progress with his mental health.
9. 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.
10. 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 not provided evidence that he has yet successfully embarked upon a course of conduct to address acknowledged deficiencies in his behaviours arising from the reports of domestic violence. The applicant has re-engaged with his psychologist and that is likely to assist him in the future, subject to the development of insight into his behaviours.
11. 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].
12. 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.
13. 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.
14. 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.
15. The reports concerning the applicant's violent behaviours are not inherently improbable or unbelievable. The allegations are made over significant periods of time and are not isolated or one-off events. There is evidence that the applicant's daughter has been struck by the applicant, and that she exhibited concerning behaviours at her school in 2021 of which he was not aware. The applicant stated in cross-examination that he did not remember hitting his daughter, and that there are no problems at school for his daughter. The applicant has minimised the effect of his domestic violence upon his children.
16. 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].
17. 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].
18. 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") …"
19. 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."
20. 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).
21. If the applicant's conduct was repeated in the future the impact upon children would be significant. The behaviour if it occurred in the future would be likely to have an adverse effect upon a child.

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

1. There was no current order of a court or Tribunal brought to the attention of the Tribunal.
2. There were 3 interim and 3 final AVOs in place between 2017 and 2023 protecting the applicant's wife and their children. The most recent order expired on 7 April 2023.

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

1. The applicant has provided information during the course of the assessment by the Children's Guardian. As previously observed, that information was not consistent with the information provided by the police and the child welfare authorities.
2. It was not submitted that the applicant had failed to provide any relevant information. The applicant was cross-examined. Rather, the applicant has shown a lack of insight.

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

1. There is no relevant information provided in this category.

Any other matters that the Children's Guardian considers necessary

1. The Children's Guardian made submissions addressing those matters which the Children's Guardian considers necessary.
2. 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

1. 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.
2. According to the police records there have been 36 events involving the applicant, the majority relating to domestic violence incidents.
3. The behaviour was beyond reasonable community norms, the behaviour was part of a pattern, and the behaviour, if repeated, would do significant harm. There are few mitigating factors such as evidence of significant and sustained positive progress since the alleged behaviour occurred, the concerning behaviour is over a long period, and there is no recent evidence that there has been a genuine and sustained effort to successfully address the unacceptable risk of harm.
4. Remorse is not considered to be a factor that mitigates risk in this matter. The applicant has shown some remorse for his clearly inappropriate behaviours which pose a risk to the safety of children. The applicant accepts that his behaviour was unlawful and unacceptable.
5. The applicant stated that he requires a WWCC for his job as a bus driver. The applicant has found employment elsewhere which he states has resulted in a financial loss. The applicant would in the future like to work in a customer service role or be employed in Sydney trains, or go back to driving a bus.
6. There have been a number of reports made over a period of time relating to domestic violence. There have been no reports made in relation to the applicant's employment. Despite the applicant's acceptance of his unlawful behaviour his attitude minimises the effect and extent of the consequences of that behaviour. The applicant shows limited insight into the effect of his behaviours particularly on his children.
7. 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.
8. 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.
9. The Tribunal agrees that the provisions of section 30 (1A) of the Act apply to this application.
10. 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.
11. If the provision did apply, the Tribunal considers that a reasonable person with full knowledge of the applicant's criminal history, the reports of his exposure of his children to domestic violence over a period of 4 years, would not 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 child -related work.
12. Additionally, if subsection 30(1A) did apply the safety welfare and well-being of children and the need to protect them from child abuse would assume significant importance, if not be determinative. The violence which the applicant has perpetrated against his wife in the presence of his children is unacceptable behaviour. The applicant can pursue a living without obtaining a clearance. It is not in the public interest for the applicant to be granted a clearance.

Conclusion

1. 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.
2. 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.
3. 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.
4. 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.
5. It is concluded on the balance of probabilities that having regard to the circumstances surrounding the 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].
6. 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.
7. 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

1. The orders of the Tribunal are that: 1. The decision of the Children's Guardian on 20 October 2022 to refuse to grant the applicant a Working with Children Check Clearance under 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: 02 August 2023