Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CYZ v Children's Guardian [2017] NSWCATAD 255 Hearing dates: 14 August 2017 Date of orders: 14 August 2017 Decision date: 14 August 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: M Hitter, Senior Member A Limbury, General Member Decision: 1. The decision of the Respondent dated 20 January 2017 to refuse the Applicant a Working with Children Check clearance is set aside. 2. The Applicant is to be granted a Working with Children Check clearance. Catchwords: ADMINISTRATIVE LAW – child protection – Working with Children Check clearance - whether the Applicant poses a risk to the safety of children. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: BRT v Children's Guardian (2015) NSWCATAD 272 Category: Principal judgment Parties: CYZ (Applicant) Children's Guardian (Respondent) Representation: Counsel: Ms. Giacomo,(Respondent) Solicitor: Taperell Rutledge Lawyers, (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2017/00061908 Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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. REASONS FOR DECISION Introduction 1. The Applicant ("CYZ") applied for a Working With Children Check (WWCC) clearance on 16 December 2015 citing volunteer work in clubs or other nominated bodies. The Children's Guardian (the "Respondent") conducted a risk assessment and on 20 January 2017 refused to grant a WWCC clearance. A risk assessment was required under the Child Protection (Working with Children) Act (2012) (the Act) because CYZ was charged with committing sexual offences in 1983 and 1984. CYZ was found not guilty and acquitted of all charges on 3 September 2010. CYZ has not had any other complaints or charges made against her. 2. CYZ provided strong evidence in support of her application to set aside the Respondent's decision. References attest to her good character and positive relationships with children. An expert opinion from a psychologist who interviewed the Applicant and reviewed all the relevant material confirms that the Applicant does not pose a risk to the safety of children. 3. At the Hearing the Respondent told the Tribunal in light of all the evidence provided by the Applicant, the Respondent consents to the orders sought by the Applicant. 4. The paramount consideration in the operation of the Act is the safety, welfare and well-being of children and, in particular, protecting them from child abuse; the Act, s 4. The test the Tribunal must apply is whether CXT poses a real and appreciable risk to the safety of children (BRT v Children's Guardian (2015) NSWCATAD 272). 5. The Tribunal is satisfied that the Applicant does not pose a risk to the safety of children. The correct and preferable decision is to set aside the Respondent's decision to refuse a WWCC clearance and to order that the Applicant be granted a WWCC clearance. The material before the Tribunal 1. The Tribunal was provided with the following material: 1. Application received from the Applicant on 28 February 2017. 2. Documents filed by the Applicant on 2 August 2017. 3. Documents filed by the Applicant on 12 July 2017 4. Documents filed by the Applicant on 22 May 2017 5. Section 58 documents filed by the Respondent received on 20 April 2017. 6. Section 58 documents filed by the Respondent received on 23 June 2017 7. Section 58 documents filed by the Respondent received on 5 July 2017. 8. Respondent's outline of submissions dated 20 July 2017. 1. A hearing was held in Sydney. CYZ was present. 2. Section 30 (1) and (1A) of the Act provides the factors that the Tribunal must consider in determining this application. These are set out below. The seriousness of the disqualifying offence; and the period of time since this offence and the conduct of the person since it occurred; s30 (1) (a) and (b) 1. The trigger charges are serious; being sexual offences against a child between the age of 7 and 9 years. These offences were alleged to have occurred some 35 years ago. The Applicant was acquitted of all charges and there have been no other complaints or charges made against her. 2. The Respondent told the Tribunal that the evidence of the alleged victim contained in the transcript of proceedings raises doubts about the voracity of the complaints. This observation was also made in the independent expert psychological report. The Tribunal considered this weighs in support of the Applicant. The age of the person at the time of the disqualifying offences; the age of the victim; the difference in age and the relationship between the victim and the person; s 30 (1) (c), (d) and (e) 1. CYZ was 16 to 17 years old at the time the trigger charges were said to have occurred. The age of the victim was between 7 and 9 years of age and was CYZ's nephew. Whether the person knew that the victim was a child and the person's present age; s 30 (1) (f) and (g) 1. CYZ was aware the alleged victim was a child. CYZ is now 50 years of age. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred; s 30 (1) (h) 1. CYZ does not have a criminal record as she was acquitted of all charges. The likelihood of repetition of the offences or conduct and the impact on children of any such repetition; s 30 (1) (i) 1. CYZ was interviewed by a psychologist (CL) on 3 April 2017. CYZ also completed a self-report personality assessment. CL had the full copy of the transcript of evidence of proceedings in the District Court, which he said he read in its entirety. CL also had access to other relevant material including the Respondent's Notice of Refusal and Final Decision, and CYZ's Statutory Declaration made on 19 February 2016. 2. CL's report is comprehensive. Most relevantly, CL concludes that CYZ "appears to be genuinely a person of low risk, whose level of risk is indistinguishable from a female member of the non-offending population chosen at random". CL raises doubts about the voracity of the allegations made against CYZ but concludes that even if they were to be accepted as true, CYZ's "risk in regard to sexually predatory behaviour towards children or adolescents as a mature adult remains negligible. There is no likelihood of an appreciable risk of sexual abuse of a child or adolescent in her behaviour". 3. CL was also asked to provide a supplementary report following the involvement of Family and Community Services ("FaCS") in relation the CYZ's 22 year old son, who had been charged with sexual assault of a 7 year old boy. CYZ's son was given bail on condition he reside in the family home with CYZ (and her 13 year old daughter). 4. Relevantly, FaCS undertook a risk assessment of CYZ and a notification made to FaCS in March 2017 resulted in a finding of no risk of serious harm. FaCS noted that CYZ appeared to be protective and willing to work with them. CL was provided with the FaCS material and asked to consider whether this material changes his opinion of the risk posed by CYZ. CL said that there is "nothing in this new material that indicates a reconsideration of (CYZ's) risk level is warranted". Any information given in, or in relation to, the Application; s 30 (1) (j) 1. CYZ's evidence is provided in a statutory declaration 19 February 2016. CYZ has consistently maintained her denial of the allegations made against her. The Tribunal accepts her evidence that the criminal charges made against her and the criminal proceedings that followed have been traumatic for her. This has been compounded by the refusal to grant a WWCC clearance. CYZ said she would do "everything within her power to protect children". The Tribunal has no reason to consider that this would not be the case. 2. CYZ has provided a number of lay references in support of her good character. This includes a reference from a sporting club where CYZ has been involved for over 10 years working with teams of young people. The club reports no problems or concerns. Another reference is provided by a woman who engaged CYZ in the care of her children for about 9 months. She has known CYZ for about 20 years. A professional reference is also provided by a psychologist (LH) who has provided CYZ with psychological support. It is supportive of CYZ and states that CYZ always attends her sessions and is an "open and honest client". Application of the reasonable person test 1. The Respondent raises no concerns in relation to CYZ satisfying this test. CYZ provided evidence from members of the community attesting to their willingness to allow CYZ to look after their children. The Tribunal is satisfied that this test is met. Application to the public interest test 1. The Respondent concedes that the public interest favours CYZ being granted a WWCC clearance. The Tribunal is satisfied it is in the public interest to grant a WWCC clearance, which would allow CYZ to take part in voluntary activities as she has done for many years in her local community without incident. Conclusion and orders 1. The material presented to the Tribunal establishes on the balance of probabilities that CYZ does not pose a risk to the safety of children as required under the Act in order to obtain a WWCC clearance. The correct decision is to set aside the Respondent's decision to refuse a WWCC clearance and to grant CYZ a WWCC clearance: Administrative Decisions Review Act 1997 (NSW), s 63. Orders 1. The Tribunal orders that: 1. The decision of the Respondent dated 20 January 2017 to refuse the Applicant a Working With Children Check clearance is set aside 2. The Applicant is to be granted 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 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: 17 August 2017