Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CGY v Children's Guardian [2016] NSWCATAD 112 Hearing dates: 27 April 2016 Date of orders: 27 April 2016 Decision date: 27 April 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: R Booby, Senior Member P Foreman, General Member Decision: The decision of the Children's Guardian dated 26 October 2015 to refuse to grant the applicant a Working with Children Check Clearance is set aside and in substitution the respondent is to grant the applicant a working with children check clearance. Catchwords: Administrative law – review under section 27 Child Protection (Working with Children) Act 2012 Working with children check – clearance – protective jurisdiction – safety and well- being of children- whether applicant poses threat to safety of children Legislation Cited: Child Protection (Working with Children Act) 2012 NSW Crimes Act 1900 NSW Administrative Decisions Review Act 1997 NSW Civil and Administrative Tribunal Act 2013 NSW Commission for Young Children and Young People Act 1998 NSW Family Law Act 1975 (Cth) Evidence Act 1995 NSW Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 247 Commission for Children and Young People v V [ 2002] NSWSC 949. ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140] RV v Commission for Children and Young People [2007] NSWADT 299 Commissioner for Children and Young People v FZ [2011] NSWCA Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 Category: Principal judgment Parties: CGY (Applicant) Children's Guardian (Respondent) Representation: Counsel: C McGory (Respondent) Solicitors: CGY (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1510732 Publication restriction: 64(1) of the Civil and Administrative Tribunal Act 2013 NSW, prohibiting the publication of information about the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. reasons for decision 1. On 16 September 2013 the applicant, who is referred to in this decision as CGY, applied for a Working with Children Check Clearance from the respondent, the Children's Guardian. 2. Section 14 of the Child Protection (Working with Children Act) 2012 establishes that an "assessment requirement" arises where any of the matters specified in Schedule 1 of that Act apply. 3. Schedule 1 of the Act is to the effect that an assessment requirement trigger includes matters where proceedings have been commenced in respect of a matter listed under Clause 1 of Schedule 2 of the Act, where the offence was committed as an adult and the person is not, because of those proceedings, a disqualified person. 4. Clause 1 of Schedule 2 of the Act includes an offence listed under s.61I of the Crimes Act 1900. 5. On or about 19 March 2007 the applicant was arraigned for, and pleaded not guilty to, having sexual intercourse with a complainant on 30 January 2006 without her consent and knowing that she did not consent contrary to section 61I of the Crimes Act 1900 NSW (the trigger matter). On 22 March 2007 a jury returned a not guilty verdict in respect of the charge. 6. CGY is not a 'disqualified person' by virtue of these proceedings because he was not convicted of that offence (s.18(1) Child Protection (Working with Children Act) 2012). 7. This matter resulted in the requirement for the Children's Guardian to conduct a risk assessment in respect of CGY's application. 8. Section 18(2) of the Child Protection (Working with Children Act) 2012 provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 of the Act unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. 9. The Children's Guardian determined that CGY is a risk to the safety of children and refused to issue a working with children clearance. The Children's Guardian notified CGY of this decision on 26 October 2015. 10. In an application filed on 19 November 2015 pursuant to s.27(1) of the Child Protection (Working with Children) Act, CGY seeks a review of the decision of the Children's Guardian to refuse him a Working with Children Check Clearance. 11. There is no dispute that the Tribunal has jurisdiction to hear and determine the application. 12. 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]). 13. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 NSW, prohibiting the publication of information about the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. Child Protection (Working with Children Act) 2012 1. The Child Protection (Working with Children) Act 2012, came into force on 15 June 2013. Its object is to protect children by not permitting certain persons to engage in child related work and requiring persons engaged in child related work to have a working with children check clearance. 2. Section 4 of the Act provides that the safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. 3. The words "well-being" of children as they appear in the Child Protection (Working with Children) Act 2012 did not appear in the previous Act, the Commission for Young Children and Young People Act 1998. Arguably, their inclusion in the Child Protection (Working with Children) Act 2012 broadens the previous considerations which were for the safety and welfare of children. 4. The Act adds to those words, that "in particular" protecting children from "child abuse" is the paramount consideration. 5. The Act does not define "abuse". However, some guidance might be found in legislation aimed at protecting children. The Family Law Act 1975 (Cth) provides that the "best interests" of a child include consideration of the matters set out in section 60CC of the Family Law Act 1975 (Cth). In particular, the matter given primacy in determining the child's best interests is referred to in section 60CC(2)(b) as follows: "the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence." 1. Section 4(1) of the Family Law Act 1975 defines "abuse" as including: "causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence" 1. The meaning of the word "risk" was considered, by Young CJ in Commission for Children and Young People v V [ 2002] NSWSC 949. At paragraph 41 His Honour states that the sole criterion should not be to protect children from "any possibility of abuse". At paragraph 42, His Honour said that the word, as it appeared in the former Child Protection (Prohibited Employment) Act 1998, meant: "whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children." 1. The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the Commission for Children and Young People Act 1998 to have the same meaning (see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15]). 2. Taking into account all of these matters, it is our view that the meaning of "risk" is as set out by Young CJ in Commissioner for Children and Young People v V (supra), that is, a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. 3. Part 3 of the Act provides for the determination of applications by the Children's Guardian. 4. Subsection 15(4) sets out the factors that the Children's Guardian may consider when making the assessment. These are: 1. The seriousness of any matters that caused the assessment in relation to the person, 2. The period of time since those matters occurred and the conduct of the person since they occurred, 3. The age of the person at the time the matters occurred, 4. 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, 5. The difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. Whether the person knew, or could reasonably have known, that the victim was a child, 7. The person's present age, 8. The seriousness of the person's total criminal record and the conduct of the person since the matters occurred, 9. 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, 10. Any information given in, or in relation to, the application, 11. Any other matters that the Children's Guardian considers necessary. 1. The Tribunal's review function is provided under Part 4 of the Act. Subsection 30 (1) sets out the factors the Tribunal must consider in determining a review application. These are: 1. 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 2. The period of time since those offences or matters occurred and the conduct of the person since they occurred, 3. The age of the person at the time the offences or matters occurred, 4. 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, 5. The difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. Whether the person knew, or could reasonably have known, that the victim was a child, 7. The person's present age, 8. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred, 9. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, 10. Any information given by the applicant in, or in relation to, the application, 11. Any other matters that the Children's Guardian considers necessary. 1. Subsection 28(5) of the Child Protection (Working with Children Act) 2012 requires that an applicant must fully disclose to the Tribunal any matters relevant to the application. 2. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on an applicant but to minimise possible risks to the safety of children. 3. In this administrative review, neither party bears the onus of proof. There is no presumption that the applicant poses a risk to children as would be the case pursuant to s. 28(7) of the Act if he were a disqualified person. 4. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in the matter of Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 in which the High Court stated that: "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove". This principle, which is also expressed in section 140(2) of the Evidence Act 1995 NSW, establishes that where a court is required to make a decision based on the balance of probabilities, the court may take into account: 5. (1) the nature of the cause of action or defence, and 6. (2) the nature of the subject-matter of the proceeding, and 7. (3) the gravity of the matters alleged. 8. In BKE v Office of the Children's Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]: [29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 ("Briginshaw") in the above passage from IK (at [68]). I share his Honour's misgivings. Briginshaw warns about the use of "inexact proofs" in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw's admonitions might give rise to an appeal on a "question of law". It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J). [31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made "unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw" (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ): "It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case." [32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists "an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access" (M v M at p 78). [33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with "unacceptable risks" but "real and appreciable" risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. 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. 1. The Tribunal notes that in this matter, unlike the matter in BKE v Office of the Children's Guardian, the applicant does not bear the onus of proof. The Evidence 1. The applicant gave sworn oral evidence and in addition tendered into evidence without objection: 1. His application for review 2. A handwritten letter to the Tribunal and a typed letter dated 17 February 2016 3. Two personal references 4. A Complaints/Compliments record from the Roads and Maritime Services. 1. The respondent tendered into evidence without objection: 1. A bundle of documents pursuant to s. 58 of the Administrative Decisions Review Act 1997 numbered page 1 through to page 122. 2. A bundle of documents tabbed 1 through to 3 being transcripts of evidence in respect of the trigger matter. 3. A bundle of documents being two documents produced under summons. Consideration Matters taken into account by the Children's Guardian 1. In a letter dated 26 October 2015 to CGY, the Children's Guardian advises that it had decided to refuse to grant a working with children check clearance by reference to the matters set out in subsection 15(4) of the Child Protection (Working with Children) Act and in particular: 1. The seriousness of the matters considered. 2. The period of time since the matters and the occurrence since then including two additional incidents of physical assault involving a police presence. 3. CGY's age at the time of the matter 4. The vulnerability of the complainant in the trigger matter and the presence of a six months old child at the time matter occurred. 5. Significant concerns about CGY's alleged behaviour and his ability to reflect and adjust his behaviour when in the presence of a child and behaviour that is suggestive of indifference to the complainant and the complainant's child. 6. The lack of indication that CGY acknowledged the concerns raised by the matter or that he had taken any reasonable steps to mitigate the concerns. 7. The additional matters in which CGY has been involved exemplify a lack of consideration of the impact of his actions on others. 8. The risk of safety to children if he were to engage in child related employment and repeat any of the behaviours that could be witnessed by or involve children. 9. The Children's Guardian concluded that due to CGY's "serious criminal record and lack of mitigating evidence" he poses a risk to the safety of children. 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 trigger matter is a charge of sexual intercourse without consent that was alleged to have occurred on 30 January 2006 (the "Alleged Incident"). CGY was found not guilty of the Alleged Incident at Sydney District Court on 22 March 2007. He was also charged with two counts of the offence of Assault with an act of indecency and the Director of Public Prosecution decided not to proceed in relation to that charge. 2. The Police Facts Sheet regarding the Alleged Incident includes the following details regarding the allegations: 1. CGY and the complainant met on 29 January 2006 when they were introduced by one of the complainant's co-residents. On that day CGY and complainant engaged in consensual penile-vaginal intercourse. 2. On the day of the Alleged Incident CGY visited the complainant at her house, which was a refuge operated by the YMCA. The complainant invited CGY into her bedroom. 3. The complainant's child aged six months was in a cot beside her bed. 4. CGY and the complainant were on the bed kissing and fondling. CGY undressed the complainant from the waist down with her consent. 5. The baby started to cry and the complainant got up and lifted the child in her arms. 6. CGY went into the ensuite bathroom attached to the room and when he returned he started fondling the complainant's buttocks from behind. CGY said "Let's do it this way" and the complainant said "I don't do anal sex" and CGY said "if you like me, you'll do it". 7. CGY put his hand between the complainant's buttocks and began sliding his hand up and down. The victim could feel CGY rubbing around something that felt like cream or water. 8. CGY continued to say "If you like me you'll do it" and the complainant said "No, I don't like it, I don't have anal sex. I'm not that kind of girl". 9. Without consent the accused quickly inserted an unknown number of fingers into the complainant's anus causing her to jump forward and CGY's finger(s) came out of the complainant's anus. 10. The complainant felt "scared and in pain" and put on her lower clothing and "raced out of the bedroom" with her baby. 11. Wanting to know what the accused had rubbed between her buttocks the complainant asked CGY if he had used a bottle of hair moisturiser that was in her ensuite and CGY took her into the ensuite and pointed a bottle of skin moisturiser that was on the sink and said "this one". 12. The accused then left the premises. 13. The complainant was taken to Royal Prince Alfred Hospital in the early hours of 31 January 2006 and examined by doctors. The examination revealed that the complainant had two splits to her skin and a skin tag that were consistent with the reported assault. 1. On 11 March 2006 police interviewed the applicant and asked if any part of his hand or fingers went inside the complainant's bottom. He said "Can't really remember that Ma'am". On 6 June 2006 he was interviewed again and denied committing the offence. 2. On or about 19 March 2007 the applicant pleaded not guilty to the charge of having sexual intercourse with the complainant without her consent. 3. At the trial of CGY the complainant gave sworn evidence regarding the Alleged Incident. Her account of the Alleged Incident is generally in accordance with the Police Facts Sheet. She also stated that: 1. After CGY had inserted his fingers into her anus she left the bedroom and sought the company of her co-residents and was worried because when she could not, at first, see them, she thought she might be alone in the house with CGY. She found the two female co-residents (the "Witness" and the "Declarant") in the backyard of the house and stayed out there for a time with the Witness whom she asked to tell CGY to leave the house. 2. CGY came out of the bedroom and joined her and the Witness. 3. When the Witness did not pick up on her indications that she would like the Witness to tell CGY to leave, she returned to her room where she noticed that a bottle of hair conditioner was on the floor. She picked it up and took it outside to CGY and asked if he had "used" the conditioner on her to which CGY said "no come with me". 4. The complainant went back into her bedroom with CGY and he pointed a bottle of cocoa butter and said "no this one". 5. The complainant said to CGY "Why, I don't like this, why are you doing this". CGY did not reply. 6. The complainant and CGY went back into the lounge room and he was starting to leave. The complainant asked him to leave and said " I don't want to see you anymore" and he said "That's fine". 1. During the trial it was put to the complainant that having settled her baby she again initiated intimate contact with the applicant who did not ask for anal sex and who at no time inserted his fingers into her anus. She denied these matters when they were put to her. It was also put to the complainant that on the occasion of their penile/vaginal sex the day prior to the hearing and during their intimate actions at the time of the Alleged Incident, CGY could have moved his fingers around and between her buttocks, even if not into her anus. She denied that this would have occurred on the previous occasion of penile/vaginal sex and said that she did not recall if that happened at the time of the Alleged Incident. 2. A number of matters were put to the complainant during the trial of CGY that go to her reliability as a witness. These included: 1. Questions related to the complainant's prior criminal record including her involvement in a matter of aggravated breaking, entering and stealing for which she was sentenced on 9 November 2005 at which time a matter of "detain for advantage" was taken into account. She received a suspended sentence of 21 months with a non-parole period of 9 months. The circumstances of the offences as outlined in questions and answers at the trial of CGY was that the complainant's accomplice sent messages on an internet chat room pretending to be a person named "Sally" and the complainant had telephone conversation or conversations with the man in which she pretended to be "Sally" . The man with whom the complainant and her accomplice were communicating was robbed. Under cross-examination the complainant said that another man had been robbed under similar circumstances. She also agreed that she provided assistance to police regarding her accomplice in this matter. 2. During cross examination the complainant was also questioned about assistance she had given police by wearing a recording device to obtain evidence to assist police to prosecute her prior boyfriend who was subsequently imprisoned for a robbery offence. 3. The complainant agreed that she had asked a police officer investigating the Alleged Incident about Victims of Crime Compensation and had completed and posted a form regarding compensation related to the Alleged Incident. She said that she had received a letter one year prior to the trial of CGY and had been advised that she would need to produce some documents for an assessment of her eligibility for compensation that could include monetary compensation and counselling. She said that she had not followed through with the claim. 4. The complainant was also questioned about a report compiled by a psychologist in September 2004 prior to her sentencing for the aggravated break enter and steal offence and she agreed that the psychologist had expressed the view that she was deeply psychiatrically and psychologically disturbed. She also agreed that the report refers to a delusional disorder scale which indicated that she had an acutely paranoid state and that the psychologist's opinion was that people with such a score could have irrational but interconnecting delusions and that people with her scores on a clinical personality scale have a capacity to transgress the rights of others. 5. During re-examination evidence was led that after that assessment the complainant had attended a peri-natal clinic and a clinical nurse consultant said she had no concerns about the complainant's mental health and had not seen evidence of anything that was written in the psychological report dated 27 September 2004. 1. A female who was living in the house at the time of the Alleged Incident ( "the Witness") gave evidence at the trial about the Alleged Incident and said that the complainant told her that the applicant had asked to have anal sex and she had said "no" and CGY had "put a finger in her bum". The Witness said that the complainant told her that after the alleged incident she had a conversation with CGY because she wanted to know what he had done in her bathroom. When the Witness asked the complainant what CGY had done in the bathroom and she said that "he used conditioner". 2. Another female who was living in the house with the complainant at the time of the Alleged Incident (the Declarant) made a statutory declaration in relation to the matter. The Tribunal's copy of the statement is initialled but unsigned and undated and was provided by the Respondent as part of documents provided by Sydney District Court in response to a section 31 request for information. In that statement the Declarant states that she did not believe the complainant's complaint. She states that after CGY and the complainant were in the room of the complainant they came out of the bedroom and joined in a conversation with the Declarant and the Witness in the backyard of the house. She states that they were together outside for approximately five to ten minutes and that the complainant went inside and called for CGY who went inside with her and that they were together on the couch for approximately five minutes before CGY said he was going home. She states that she spoke to CGY in his car for about five minutes and then went for a ten-minute walk. She states that when she got home, the Witness told her that the complainant was in her room upset and was complaining that CGY had "stuck his fingers up her arse". She states that the Witness then called the police. 3. In a Statutory Declaration dated 8 October 2105, but not witnessed, CGY states that he was not guilty of the Alleged Incident and believes that he is being punished twice for something of which he was found not guilty. He states that the complainant contacted the Victims of Crime Register a few days after the Alleged Incident and had "charge (sic) two people before me in Queensland" and she sent the father of her baby to gaol. 4. In his submissions counsel for the Respondent submits, and the Tribunal accepts, that there was no evidence that the complainant had previously had people in Queensland charged and that whilst she had completed and forwarded documents related to Victims of Crime compensation she had not followed through with further documentation. 5. During the current hearing CGY continued to deny that he had digitally penetrated the anus of the complainant and said words to the effect that he could not comment on the evidence of the doctor about the complainant having injuries consistent with the complaint. 6. Counsel for the Respondent made written submissions to the following effect regarding the allegation of digital anal penetration: 1. The applicant has not denied being in the room with the complainant. 2. The medical evidence was to the effect that the complainant's injuries were consistent with the complaint. 3. During the trial of CGY there was no alternative explanation offered for the injuries sustained by the complainant. 4. There was no evidence that despite submitting victims of crime compensation form the complainant had followed up on any claim. 1. In its Notice of Final Decision to CGY dated 26 October 2016, the Office of the Children's Guardian advises, amongst other matters, that it is of the view that upon the complainant's child becoming distressed and following the complainant attending to the child, CGY "persisted in these behaviours and unwanted advances when the complainant has explicitly stated that she did not wish to engage in anal sex with you. Your conduct is suggestive of indifference to the complainant and the complainant's child" 2. In respect of the Children's Guardian's view about the behaviour of CGY, the Tribunal is unsure which "behaviours" the Children's Guardian refers to in the quotation in the previous paragraph. 1. CGY was charged with only one matter, which was the insertion of his finger or fingers into the anus of the complainant, not with multiple behaviours. 2. In respect of any other behaviour around the time of that Alleged Incident, the Tribunal is of the view that whilst there is evidence that the complainant told CGY she did not want to have anal sex, she did not indicate that she wanted the intimate activity to stop. 3. Given that lack of evidence that the complainant wanted the intimate activity in general to stop, the Tribunal is not satisfied that in proceeding with intimate contact whilst the applicant was tending to her child, the applicant was indifferent to the complainant or her child. The Tribunal accepts that if the applicant did proceed to inserting his finger(s) into her anus, he did so with indifference to her wishes. 1. An offence of sexual intercourse without consent is serious and carries with it a maximum sentence of 14 years imprisonment. 2. In assessing the subjective seriousness of this matter the Tribunal takes into account that: 1. The Police Facts and the evidence given by the complainant are to the effect that the complainant and CGY had been introduced to each other by the Declarant the day before this matter and had consensual vaginal intercourse in the car of CGY on that day. CGY was present in the complainant's room at her invitation where they were involved in intimate activities. 2. There is no evidence that CGY had targeted the complainant or used any threats or inducements to facilitate the Alleged Incident. 3. After the Alleged Incident, the complainant had a conversation with CGY and others and also went back into her room with him. 4. There is no evidence that CGY made any further attempts engage the complainant in sexual activity or that she remained afraid of CGY after she had located her co-residents. 5. The complainant's baby was present at the time of the alleged digital anal penetration. However the complainant had invited CGY into her room, taking the baby with her, and the baby had been present during the consensual intimate activity that preceded the Alleged Incident. 6. The baby was only six months old and there no evidence that the baby was aware of the nature of any of the intimate activity around the time of the Alleged Incident or that she was aware of the Alleged Incident which, according the Police Fact Sheet happened when the complainant had her back to CGY and was holding the baby in her arms. 7. There is no evidence that the baby became distressed as a result of the intimate activity in the bedroom. In her evidence at the trial of CGY, the complainant said that the baby cried often because she was teething at that time. 1. CGY was found not guilty of the Alleged Incident and at the trial of CGY a number of matters were put to the complainant impugning her reliability as a witness. The Tribunal also notes, however, that the complainant had injuries consistent with the assault allegations. 2. The Tribunal is not in a position to determine whether the Alleged Incident occurred, but whilst accepting the jury's decision that CGY was found 'not guilty' on the criminal standard of proof, the Tribunal is also not comfortably satisfied that the Alleged Incident did not occur. 3. The Tribunal is of the view that if Alleged Incident occurred, taking into account the circumstances of the Alleged Incident as outlined in the preceding paragraphs, it is not at the most serious end of the scale for offences of this nature. The period of time since those offences or matters occurred and the conduct of the person since they occurred, 1. The Alleged Incident was on 30 January 2006, more than ten years prior to the hearing of CGY's application for review. 2. Since that time three matters have been noted in Police Incident Reports as "events of relevance" to CGY. These are: 1. On 1 February 2006 police received a telephone call from the Complainant regarding alleged theft of some of her property. Police notes indicate that they doubted the veracity of her claims and there is no mention that these matters could involve CGY. On the same day the Complainant reported that she had received a threatening call on her mobile telephone from a private number saying "If you don't drop the charges I'm going to get my brothers onto you. Who called the police?" "Drop the charges" and "even if I go to gaol, my brothers are going to get you" "You don't know me. You don't know what I'm going to do". In respect of this matter there is no mention that CGY could have been involved in these matters. The complainant signed a statement to the effect that she did not fear for her safety or her property. 2. On 26 March 2011 a physical altercation occurred involving CGY's father and another man who were arguing about the starting time of their taxi driving shifts ("the 2011 incident"). Each man had called his son, or sons including CGY, and an altercation developed involving six people. Police were called but no charges resulted. The Police Incident Report notes that the incident was recorded in case at a later date any person came forward and all those involved were charged with affray. There was no further action regarding this matter. 3. On 15 December 2012 CGY who was a taxi driver, was involved in an altercation with a passenger who left the taxi without paying his fare ("the 2012 incident"). A witnesses report was to the effect that CGY left the taxi and grabbed the passenger by the shirt and dragged him to a nearby fence where he began to punch him. A passing witness called the police and yelled at the passenger to give CGY some money and he handed CGY $10:00. When questioned by police, CGY said that the passenger had slapped him first and that he had slapped him back. He denied other assaults. He is said to have argued with police, saying "I have the same job as you, you get to use your Taser and I can hit back". The passenger had no visible injuries and told the police that he wanted to pay the rest of the fare the following day when he was sober. He did not want to make a statement and said he did not recall what had happened due to his intoxication. There was no further police action. 4. When questioned during the hearing about the incident on 15 December 2012, CGY said that the passenger had hit him first and that the witness who called the police had not seen that. He agreed that he had grabbed him by the shirt but said he had not punched the passenger. When asked about his alleged comments about a Taser, CGY asked what is a Taser? He said he did not say he is allowed to hit back, but he said that he believes that he is allowed to defend himself. 1. In his oral submissions counsel for the Respondent submitted that the 2012 incident gives rise to concerns that CGY believes that he is entitled to use force to resolve issues. 2. In his written submissions, counsel for the Respondent submits that the applicant has not provided evidence of any therapy, counselling or programs regarding anger management and none of the material provided by the applicant demonstrates a recognition or insight regarding the inappropriateness of or concerns that arise in resect of, the incidents in 2011 and 2012. 3. During the hearing counsel for the Respondent asked CGY if he had any other instances of physical altercations related to taxi driving. He said that on one occasion another driver had bitten his hand and he nearly passed out. 4. The Tribunal asked CGY if he had experienced other incidences of fare evasion by passengers. CGY said: 1. On an occasion a person had said he would go inside and get money and did not come back. He said that he rang the police who made the passenger pay the fare. 2. On another occasion a person exited the taxi without paying but left a letter with her address in the taxi. CGY contacted the police who went to her house and spoke with her mother and the fare was paid. 1. CGY also said that: 1. On an occasion in Kings Cross a female passenger asked for sex but he refused. 2. On another occasion when a female passenger suggested they have sex he declined saying that he was married. 1. Counsel for the Respondent declined to cross-examine CGY regarding these matters. 2. During the hearing CGY said that he is not currently employed as a taxi driver because he is caring for his child. 3. In respect of CGY's conduct since the trigger matter, in a statement dated 17 February 2016 CGY states that: 1. He is now married and has a son who was born on 12 February 2016. 2. He is the uncle of two girls and a boy aged between six to twelve years. 3. He has lived with his nieces and nephews and younger sister for a number of years and is loved by each of them. 4. He strongly opposes violence against children because he believes they are the future of the nation. 1. In a handwritten note to the Tribunal. CYG states that: 1. He is now a family man who has been married for nine years. 2. He and his wife had no children and so used IVF and had a son who at time of writing was one month old. 3. When he came to Australia, he used "go clubbing, drinking, smoking and used to think that's what life is about". However, after being charged with the Alleged Incident he has changed his life and does not drink or smoke or go clubbing. 4. He describes himself as having made a big change in his life and states that that he is " trying my best to be a good person and I love my son and will respect all kids and women and every human being". 1. The Tribunal is of the view that the matters relating to the possible theft from the complainant and the telephone call she reported receiving are not matters that should be given any weight in assessing CGY's behaviour since the trigger matter because there is no evidence that links him to these matters. 2. In considering the extent to which the 2011 and 2012 incidents indicate that CGY has a propensity to aggression that renders him a risk to children in the absence of counselling or treatment the Tribunal took into account the following: 1. There was no police follow-up regarding those matters and no charges were laid. 2. The 2011 incident involved five other people and the Tribunal has no evidence regarding the role played by CGY, other than the non-specific comment in the police incident report that the altercation involved all six people who were present. 3. Whilst a witness reported seeing CGY punch the passenger in the 2012 incident, CGY states that he slapped the passenger in self-defence. Police reported that there were no visible injuries sustained by the passenger and police did not take the matter further. 4. The two matters are of a different nature, the first occurring when CGY was called upon by his father to provide assistance and the second an allegation of an assault said to be initiated by CYG. The Tribunal is not satisfied that they should be viewed together as indicating a propensity for aggression. 5. CGY provided the Tribunal with other examples of fare evasion where he did not use physical means to resolve the matter and instead appropriately called police and had them deal with the matters. He was not cross examined regarding these accounts. Taken at face value the Tribunal is of the view that these accounts demonstrate that whilst on an occasion he dealt inappropriately and aggressively with a fare evader, he does not routinely act in that way. 1. There is no evidence that any children were involved in the 2011 or 2012 incidents. 2. Having regard to all of these matters, the Tribunal is of the view that the 2011 and 2012 incidents are not such that they suggest that CGY has a tendency to aggression, or that he requires counselling or other programs to address aggression. 3. The Tribunal is also not satisfied that the 2011 and 2012 incidents are such that they suggest that CGY would pose a risk to children greater than that posed by any other person. The age of the person at the time the offences or 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, the difference in age between the victim and the person and the relationship (if any) between the victim and the person, whether the person knew, or could reasonably have known, that the victim was a child. 1. At the time of the trigger matter the applicant was 23 years old, as was the complainant. 2. The complainant was not a child. However at the time of the Alleged Incident the complainant was holding her baby. 3. In his submissions counsel for the Respondent submits that the complainant was vulnerable in that she was living in a refuge without family or appropriate family supports and was holding her baby at the time of the Alleged Incident. 4. The Tribunal does not accept that the available evidence supports the conclusion that the complainant was vulnerable at the time of the Alleged Incident for the following reasons: 1. It was accepted at the trial of CGY that the complainant had invited CGY to her bedroom, into which she knowingly took her baby intending to engage in sexual activity, and had engaged in intimate acts with him knowing the baby was in the cot. The Tribunal is not satisfied that the fact that she interrupted the consensual intimacy to tend to the crying baby renders her vulnerable. 2. At the trial of CGY the complainant explained that she was in the refuge for financial reasons because she was receiving social security benefits and could not afford other accommodation. 3. At the trial of CGY the complainant said that she had previously been living with her then partner who was imprisoned having been found guilty of an offence after she had co-operated with police by wearing a hidden recording device to assist to collect evidence on which to convict him. 4. In her evidence at the trial of CGY the complainant said that she had alternative accommodation with her parents in Queensland but had chosen to remain in Sydney at the refuge. 5. There was no evidence that CGY was psychologically or emotionally vulnerable or was without support. Her evidence during the trial of CGY was to the contrary. During re-examination in that trial the complainant agreed with the Crown that during her pregnancy she had attended the Royal Prince Alfred Pre-Natal Clinic. She said remained in contact with the Clinical Nurse Consultant at the Royal Prince Alfred Peri-natal clinic who had no concerns about her mental health. 1. The Tribunal is not satisfied that there are issues related to age of the offender or the complainant or the vulnerability of the complainant that cause concern that the applicant represents a risk to children that is greater than that of any other person. The person's present age 1. CGY was born on 18 May 1982. At the time of the hearing he was almost 34 years old. As noted above, at the time of the offence he was 23 years old. The Tribunal is of the opinion that there is a significant difference in the maturity levels of 23 and 34 year old people and that CGY's increased age since the Alleged Incident is significant and the more so for the changes he has outlined in his life including that over that period he has married and had a child through IVF which is likely to have involved significant emotional and financial investment from the couple. The seriousness of the person's total criminal record and the conduct of the person since the matters occurred, 1. CGY has no criminal convictions. As noted above, in addition to the Alleged Incident, he was mentioned as a person of interest in two matters relating to physical altercations but no charges were laid. 2. In his evidence during the hearing, CGY spoke of two occasions on which as a taxi driver he was offered sexual favours by female passengers, but declined the offers. He was not cross examined on these matters. The Tribunal is of the view that these matters represent a difference in attitude of CGY currently compared to 2003 where it was accepted that upon first meeting the complainant he drove with her to a park and participated in consensual intercourse. The likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, 1. The Tribunal was not provided with any psychological risk assessment of the likelihood of CGY repeating the offences alleged to have occurred on 30 January 2006. 2. In the absence of any formal risk assessment the Tribunal takes into account the Alleged Incident was more than ten years ago and CGY has not come under notice for any similar matters. As noted above, he is significantly older than he was at the time of the Alleged Incident and his life and lifestyle have changed significantly since then. 3. There is no evidence that CGY has become involved in any additional physical altercations with fare evaders and his unchallenged evidence during the hearing was that he has reacted to fare evasion since that time by contacting police who have dealt with the matter. 4. There have been no children involved in any of the incidents recorded against CGY. 5. The Tribunal is of the view that it is not likely that in the future CGY would be involved in behaviour such as that alleged on 30 January 2006, or in acts of aggression that would pose a risk to children. 6. In his written submissions counsel for the Respondent submits that there would be a significant impact on a child of any repetition of the applicant's behaviour as alleged on 30 January 2006. 7. The Tribunal is not satisfied that there would be a significant impact on a child of any repetition of the applicant's behaviour as alleged on 30 January 2006 for the following reasons: 1. The child that was present at the time of the Alleged Incident was six months old and there is no indication that she was aware of the nature of any of the intimate activities engaged in by the applicant and complainant in her company. 2. There is no evidence that the six months old baby was aware of the alleged digital anal penetration of her mother who was holding the baby in front of her at the time the incident was alleged to have occurred. 3. Whilst the six months old baby was crying there is no evidence that she was distressed by the behaviour of the applicant or the complainant. The complainant said she was crying because she was teething. 4. There was no evidence that the complainant had asked the applicant to stop physically intimate activity whilst she tended to the baby or that he had ignored any such request. 5. There is no evidence that the applicant would participate in similar activity in the presence of an older child who was more likely to be aware of the nature of any of the activities. 1. The Tribunal is of the view that there would be a risk to a child who was present during an altercation such as CGY was involved in in 2011. However that genesis of the altercation was an argument between older men who called on the assistance of young men. There is no evidence that a similar situation would eventuate in which young children were present or that CGY would have participated had a child been present. 2. Taking all of these matters into account, the Tribunal is not satisfied that there is likely to be a recurrence of an incident such as the Alleged Incident, or of the 2011 and 2012 incidents. Taking into account that the incidents were not directed towards children and that the only child present was a six months old baby at the time of the alleged incident, the Tribunal is also not satisfied that even if there were an occurrence of similar behaviours by CGY that they would involve children. Any information given by the applicant in, or in relation to, the application 1. CGY states that the reason he is applying for a Working with Children Check Clearance is that his wife wants to start a family day care business from their home. 2. The applicant also provided copies of his Responsible Service of Alcohol Certificate obtained in 2007 and a Certificate II in Transport and Logistics obtained in 2009, his acceptance as a Silver Service taxi driver and a Certificate of Achievement for excellence as a driver for Combined Communications Network and proof of his enrolment in a Diploma of Early Childhood Education. 3. CGY provided the Tribunal with a number of character references. Counsel for the Respondent submits, and the Tribunal accepts, that it is not able to place weight on those references because there is no indication that the referees are aware of the nature of the allegation against CGY. 4. CGY said during the hearing that he has not told his wife about the allegation and that if he did so he is afraid that she would divorce him and that this would affect his son. 5. Counsel for the Respondent submitted, and the Tribunal accepts, that it is a matter of concern that the applicant has not advised his wife of the allegation as it is related to his involvement in her proposed business because of its implications for his Working With Children Check Clearance. However the Tribunal accepts that the Alleged Incident was ten years ago and was prior CGY's marriage and that CGY is worried about the effect of disclosure on his family. The Tribunal was not provided with any evidence to the effect that CGY's failure to disclose this allegation to his wife increases the likelihood that he would again be involved in a similar matter or that he would be a risk to children. Any other matters that the Children's Guardian considers necessary 1. The Children's Guardian did not raise any additional matters. Conclusion and orders 1. As outlined above, the issue for determination is whether on the material before the Tribunal we can be satisfied that CGY poses a risk to the safety of children. 2. In relation to the Alleged Incident the Tribunal is not satisfied that it occurred but is not satisfied that it did not occur. The Tribunal is satisfied however, that even if the incident occurred as alleged in the Police Facts, taking into account the circumstances of the Alleged Incident, the time since that matter and the conduct of CGY since the alleged matter, there is little likelihood that CGY would in the future act as it was alleged he acted at the time of the Alleged Incident. 3. The Tribunal does not accept that CGY's continued involvement in intimate activity generally whilst the complainant was tending her crying baby is indicative of indifference to the complainant or the complainant's child, but is of the view that if he proceeded to digitally penetrate the anus of the complainant he was indifferent to the complainant's wishes. 4. Whilst the Tribunal accepts that a child was present during the time of the Alleged Incident, the Tribunal is not satisfied that the child was aware of the behaviours at the time. The Tribunal is also of the view that there is no evidence that if a child who was able to be aware of those matters were present, CGY would act in a way that was alleged he acted at the time of the Alleged Incident. Accordingly the Tribunal is not satisfied that even if CGY were to repeat the Alleged Incident, it would be in a context where children would be harmed. 5. Taking into account the nature and circumstances of the 2011 and 2012 incidents referred to in the Police Incident records and taking into account the conduct of CGY since those incidents, the Tribunal is not satisfied that it is likely that CGY would become involved in similar incidents in the presence of children. 6. The Tribunal is also of the view that CGY's current life circumstances and increased maturity are such as to render unlikely a repeat of the Alleged Incident or the 2011 and 2012 incidents and his failure to disclose the Alleged Incident to his wife does not significantly increase the likelihood that he would repeat behaviours that were alleged. 7. Taking into account the conclusions noted above and the views of the Tribunal as expressed throughout these Reasons, the Tribunal is of the view that the evidence does not establish that CGY poses a real and appreciable risk of harm to children that is greater than the risk posed by any other person. The Tribunal's view is that the evidence indicates that the CGY should be granted a Working with Children check clearance. 8. It follows that the orders of the Tribunal are: The decision of the Children's Guardian dated 26 October 2016 to refuse to grant the applicant a Working with Children Check Clearance is set aside and in substitution the respondent is to grant the applicant a Working With Children Check Clearance. 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: 07 June 2016