Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DTX v Children's Guardian [2020] NSWCATAD 90 Hearing dates: 06 February 2020 Date of orders: 06 February 2020 Decision date: 24 March 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: C Grant, Senior Member Professor P Foreman AM, General Member Decision: (1) The decision of the Children's Guardian dated 27 April 2016 to refuse to grant the applicant a working with children check clearance is set aside. (2) In substitution for that decision, the following decision is made; the applicant is granted a working with children check clearance. Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant charged with indecent assault – acquittal at trial – whether applicant poses a risk to the safety of children Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Prohibitive Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BHA v Children's Guardian [2014] NWCATAD 161 BJB v Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 CHB v Children's Guardian (2016) NSWCATAD 214 CMA v Children's Guardian (2016) NSWCATAD 264 McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 R v Commission for Children and Young People [2002] NSWlRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88 Smith v Commissioner Police 2014 NSWCATAD 184 ZZ v Secretary of the Department of Justice [2013] VSC 267. Category: Principal judgment Parties: DTX (Applicant) Children's Guardian (Respondent) Representation: Counsel: V Hartstein (Respondent) Solicitors: John Puleo Solicitors, (Applicant) Crown Solicitors (Respondent) File Number(s): 2019/00098937 Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION Overview 1. The applicant is a 41 year old man who seeks a Working with Children Check clearance ("clearance") to enable him to coach young person's football teams and to further his Australian Defence Force career. 2. In March 2015, the applicant applied for a clearance but after conducting a risk assessment, the Children's Guardian, on the 27 April 2016 decided to refuse him a clearance. Their decision was based on the applicant being charged in May 1999 with maliciously inflicting bodily harm on his 12 week old daughter. The alternative charge of assault was later laid on the applicant. In December 1999, the applicant was acquitted after a trial. The Children's Guardian was satisfied that the applicant posed a risk to the safety of children and appears to have relied on the seriousness of the 1999 allegations. 3. The applicant seeks an administrative review of a decision of the respondent, the Children's Guardian, to refuse him a clearance. The applicant relies on the fact he was acquitted of the 1999 charges and he has no criminal history. He also provided an expert opinion from a psychologist stating he is not a risk to the safety of children and several written personal references in support of his application. 4. The issue for us to determine is whether, as at the date of hearing, we can be satisfied the applicant poses a real and appreciable risk to children if he were granted a clearance to work in child related-work. 5. After consideration of all the evidence, we decided to set aside the decision of the Children's Guardian and grant the applicant a clearance. The reasons are set out below. 6. Due to the sensitive nature of these proceedings we have made the order under s 64(1) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the complainant in the 2012 criminal proceedings are not to be published without leave of the Tribunal. To give effect to this order, the pseudonym 'DTX' for the applicant's name has been used and persons other than the professional expert witnesses have been referenced by their relationship with DTX. Jurisdiction and role of Tribunal 1. There is no dispute that we have jurisdiction to review the decision of the Children's Guardian that is the subject of this application. Our role in reviewing that decision is to determine the correct and preferable decision having regard to the material before us and the applicable law: see Administrative Decisions Review Act 1997 (NSW), s 63(1). Upon an application for review we may make orders that include an order to affirm the decision of the Children's Guardian, or an order to set aside the decision of the Children's Guardian and in substitution thereof making another decision (in this case an order to grant a clearance): see Administrative Decisions Review Act, s 63(3) and the Act, ss 18(2) and (3). 2. The application for review to the Tribunal was not filed by the applicant until the 29 March 2019 but this late application was remedied on the 9 May 2019, when the Tribunal granted leave to extend the time to file the application. This issue is not contested by the Children's Guardian. Applicable Law and Legal Principles 1. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances: s 3 of the Child Protection (Working with Children) Act 2012 ("the Act"). 2. The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse: s 4 of the Act. 3. The Children's Guardian will consider those matters set out in s 15(4) of the Act in making a risk assessment. The Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children: s 18(2) of the Act. 4. A person who has been refused a clearance may apply to the Tribunal for an administrative review of the decision: s 27(1) of the Act. The applicant must fully disclose to the Tribunal any matters relevant to the application; s 27(4) of the Act. 5. In this administrative review, neither party bears the onus of proof. There is no presumption that DTX poses a risk to the safety of children as would be the case under s 28(7) of the Act if he was a disqualified person. See McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6. Woodward J there observed in relation to the Administrative Appeals Tribunal (at 356-357(FCR): There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's. 1. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (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 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (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 is sought to prove". 2. An application under s.27 of the Act is a merits review and not a review in which DTX must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88. 3. Our jurisdiction under s 27 of the Act is protective of children and not punitive of DTX: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111; R v Commission for Children and Young People [2002] NSWlRComm 101. 4. The issue for us as required by s 18(2) of the Act is whether DTX, on the balance of probabilities, poses a risk to the safety of children. Young CJ in Commission for Children and Young People v V (2002) NSWSC 949 considered the test to be applied is: "...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. We may not make an order on conditions, whether under s 27 or 28 of the Act: BJB v Children's Guardian (No. 2) [2014] NSWCATAD 164. 2. In determining this application, we must first have regard to the factors set out in s 30(1) of the Act. If we are considering making an order enabling DTX to work with children, we must then consider the two-part test set out in s 30(1A) of the Act. Evidence Documents 1. The applicant, DTX filed the following written material: 1. Applicant's Statement dated 12 December 2019, 2. personal references, 3. report of Dr Christopher Lennings dated 27 November 2019, 4. report of Clinical Psychologist, Dr Martijn dated 17 October 2019, and 5. outline of submissions dated 3 February 2020. 1. The Children's Guardian filed a s.58 bundle of documents including the police brief of evidence relating to the criminal charges against DTX that allegedly occurred on 28 January 1999 including the police record of interview of DTX, Indictment filed at Penrith District Court and Notice of not guilty verdict after a jury trial, nil criminal history of DTX, nil AVO history of DTX, records from Family and Community Services database regarding DTX, subpoena material produced by Dr Martijn, response to Notice to Produce from Australian Defence Force and outline of submissions dated 23 January 2020. 2. The applicant was represented by a solicitor and the respondent was represented by counsel. 3. During the hearing, DTX gave oral evidence and was cross-examined by the respondent's counsel. Dr Lennings and Ms Martijn gave oral evidence and were cross-examined by the respondent's counsel. No other witnesses were called by either party and final submissions were made by both parties. Details of the trigger offences that led to Children's Guardian refusing DTX a clearance 1. The Children's Guardian considered two (2) criminal charges for Assault occasioning actual bodily harm (AOABH) and Maliciously inflict grievous bodily harm. The charges relate to allegations that on the 28 January 1999 DTX inflicted injuries on his twelve (12) week old daughter. The criminal trial took place over 3 days in December 1999. The outcome was that DTX was found not guilty of the charge of Maliciously inflict grievous bodily harm and the charge of AOABH was dismissed. 2. The facts of the 1999 offences can be summarised as follows: 1. On 28th January 1999, the Joint Investigation Team received a notification that the 12 week old child of DTX had been conveyed by ambulance to the Children's Hospital with a spiral fracture to the left femur and bruising to the left side of the face. 2. A consultant pediatrician stated that in his opinion the child has suffered a "non-accidental fracture of the left femur and has bruising on her face consistent with a slap mark of an adult's hand". 3. DTX and his partner were interviewed by police the day after on 29 January 1999. DTX said that the facial injuries had occurred a few days earlier. The child had allegedly fell back whilst he was nursing her on his knee and hit her face on the wooden arm of a lounge chair. He stated the spiral fracture occurred when he was changing her nappy on the change table. He just inserted a suppository into her for constipation problems. He turned her on her side and was wiping her down. He reached to remove a nappy liner and the child rolled off the change table and onto the carpet floor. He tried to grab her around the waist and hip area but couldn't hold her and she hit the floor. When he picked her up he noticed that her left leg was limp. She was very distressed and DTX called the ambulance. 4. DTX said he noticed further bruising to the child's face after arrival at the hospital and he believed that was the result of the fall. 5. DTX's partner said that she had arrived home to find DTX in an hysterical state. She said that DTX had told her he wasn't fully awake and he wasn't paying attention and we went to wipe the child's bottom after rolling her over and she fell off the change table and he tried to grab her. When she was asked if she was aware if anyone had slapped the child on her face, DTX's partner said "I've heard a slapping noise but I haven't seen it and I don't know where it's from." 6. Another consultant pediatrician at the Children's Hospital provided a second opinion. He stated, "It is my view that the history provided does not explain the injury in this case. In order to cause a spiral fracture of the femur, a force is applied by grasping the foot or lower limb and rotating this with significant force while the body remains static, or, in toddlers, having a twisting force applied to the body while the foot remains static. Grasping the upper portion of the leg while the child fell would not be likely to produce such a torsional force and, therefore in my view this explanation for the fracture is invalid. Neither the bruising or the fracture adequately, explained, and the combination of these two injuries is strongly suggestive of child abuse." 7. DTX was the only person at home having the care of the child at the time the injuries were sustained. The evidence of DTX 1. DTX made a written statement dated 12 December 2019 and gave oral evidence at the hearing. 2. He has been a member of the Australian Defence Force for 23 years and is currently an Officer. He has been happily married to his wife since 2007. At the time of meeting his wife, she had a son aged 4 (now 18) from a previous relationship who has lived with himself and his wife since they were married. He has another son aged 10 with his wife and an adult daughter from a previous relationship who was the victim in the 1999 incident. He has made the application for a clearance as it is often a requirement for many senior positions within the Defence Force to have a clearance. This is due to the presence of younger recruits aged 16 or 17 years and may also be part of the Defence Force's mandatory requirements. DTX also needed a clearance as he is interested in coaching and developing younger football players. He has been a successful men and women's football coach since 2011. 3. He gave evidence about how the incident occurred as he described to the police. He acknowledged the seriousness of the injuries to his daughter and fully accepted that police and departmental intervention was required to investigate the matter in order to ensure his daughter's safety. He reiterated his actions that caused his daughter's injuries were accidental. He told us that as soon as the incident occurred he called the ambulance to seek immediate medical assistance. Since the day the accident occurred, DTX told us that he has always been consistent and open when explaining to others how it occurred and how sorry he was. Consideration of s.30(1) factors and findings a) Seriousness of any matters that caused the assessment in relation to the person 1. The trigger offence for the adverse assessment by the respondent was that DTX was charged with assaulting his daughter in 1999. The charges were serious as the victim was a 12 week old infant and her injuries were a fracture to her left femur and bruising to her face. DTX's position was that the injuries were caused by his lack of attention when caring for his daughter and were accidental. After a three day trial, DTX was acquitted of the charges. We do not have the benefit of the transcript of the trial that may have identified the reasons for the acquittal but DTX told us in evidence that he has consistently described the cause of his daughter's injuries as accidental. 2. During the hearing, counsel for the respondent put to DTX that his version of events was not true. That is, it was not an accident. Counsel surmised that at the time of the incident he was a young and inexperienced father, his daughter was causing him frustration and he lost his temper. DTX denied this version of events. We note this version is without evidence, contrary to the acquittal verdict and is purely speculative. b) The period of time since those offences or matters occurred and the conduct of the person since they occurred. 1. The incident occurred in January 1999, 21 years ago. 2. DTX has not been subject of any other criminal allegations, or complaints or disciplinary proceedings. c) The age of the person at the time of the offences or matters occurred. 1. DTX was 20 at the time of the incident. 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. 1. The victim was 12 weeks old and therefore vulnerable. She was the daughter of DTX and totally dependent on him for care. e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person. 1. There is a 20 year old age gap between the DTX and the victim, who is his daughter. f) Whether the person knew, or could reasonably have known, that the victim was a child 1. DTX was the victim's father and knew she was a child. g) The person's present age 1. The present age of DTX is 41 years of age. h) The seriousness of the person's total criminal record and the conduct of the person since the matters occurred. 1. DTX has no criminal history. 2. There is a police record to the effect that on 7 January 2011, [DTX] and his sister had an argument outside his house during which he poured a drink over her. No charges were brought as a result of the incident. There were three children in the home at the time. i) The likelihood of any repetition by the person of the offences or the conduct or any other matters that caused the assessment and the impact on children of any such repetition 1. Clinical Psychologist, Dr Christopher Lennings was engaged by DTX's solicitor to provide a risk assessment. He interviewed DTX on the 21 November 2019 and prepared a report dated 27 November 2019. He also gave evidence to the Tribunal. 2. Dr Lennings found that DTX presented as a person without any obvious psychopathology. That is, he does not present as a person who is subject to either aggression or violence or unrestrained behaviour. He is not impulsive and presents as a contained man. 3. In carrying out a risk assessment of DTX, Dr Lennings found this task to be 'quite vexed'. He stated, "typically risk assessments in regard to child protection risk predict risk over a 12 month period. However, as the alleged events took place in 1999 and there have been no notifications despite the fact that over the last 14 years, [DTX] has been involved in child rearing, it would be inappropriate to utilise a risk assessment device based on behaviour in 1999". Dr Lennings also referred to studies that indicate that by the time a 20 year period has elapsed there is no predictive value to the initiating event, even if it is assumed there is some doubt that something may have happened. He concluded, "as there has been no child protection notifications for the last 20 years, any risk associated with the 1999 event has been completed attenuated". 4. Dr Lennings noted there were no factors that suggest DTX represented any form of appreciable risk of harm to either children or adults. "He has no substance abuse problems or any significant mental health problems. He is respectful and contained within relationships. He has no history of apprehended violence orders and no criminal history. There is nothing that would indicate any suggestion that he represents a risk of harm. Under these circumstances it appears that there is no appreciable risk in regards to [DTX] as to his potential for harming children or young people". 5. Clinical Psychologist, Dr Martijn prepared a report dated 17 October 2019 and gave oral evidence. DTX was referred to Dr Martijn by his local general practitioner to assess and treat DTX for reported depressed mood and coping with a recent rejection of a requested change in position within his Australian Defence Force employment. This rejection was due to the decision by the Children's Guardian to refuse DTX a clearance. 6. Dr Martijn completed 14 sessions with DTX. Dr Martijn stated, "[DTX] demonstrated a consistent commitment to therapy, he was open during his sessions, reflective and motivated to work on his mental health…He presented as a person who prides himself on his open and honest approach with others, is a role model for many colleagues, and the various teams he coached over the years." She also stated that at the completion of his therapy, DTX's mood had been stable and free from depressive symptoms for two months. He had also displayed an improved resilience in coping with stressors. 7. Dr Martijn gave evidence and told us that DTX had been very committed to his therapy and had not missed a session. He was always interested in taking up her advice and attempting to resolve his issues. Dr Martijn also told us that she believed DTX's mental health and wellbeing would improve even further upon the resolution of these current proceedings regarding his clearance. 8. Based on all the information before us, including the expert report of Dr Lennings, we are satisfied that the likelihood of the 1999 incident being repeated is extremely low. We also note that were the incident repeated in future the impact on a child would be very serious given the age of the child and the injuries she sustained. j) Any information given by the Applicant in, or in relation to, the application 1. DTX provided a statement from his wife dated 12 November 2019. She made the following points: 1. She is fully aware of the incident involving her husband's daughter that occurred in 1999. He told her when they commenced their relationship and she has observed her husband's being greatly affected by the incident. 2. Her husband is the most loving and caring father. He has a close relationship with both children including his step-child who changed his name by application to Births, Deaths and Marriages office to make his surname the same as [DTX] which is testament to how her son feels about [DTX]. 3. She has observed her husband being a patient, loving and supportive father to his daughter when they meet up. 4. Her husband has enjoyed coaching and mentoring children and always shows patience and composure to get the best out of them. 5. She believes her husband does not pose a risk to children. 1. DTX provided several personal and professional references. They all expressed positive views of DTX which included that he was an honest and trustworthy person of good character, a loving father, they would not hesitate in allowing their own children to have direct contact with DTX or be cared for by him, unsupervised and they all believed that he did not pose a risk to the safety of children. j1) Any relevant information in relation to the person that was obtained under section 36A 1. No such information was provided to the Tribunal. k) Any other matters that the Children's Guardian considers necessary 1. No other information was provided by the Children's Guardian Consideration 1. DTX gave evidence about the 1999 incident in an open and honest way. He did not seek to minimise the incident or the injuries to his daughter. He was clearly remorseful and remains upset about the injuries he caused his daughter but maintained it was an accident. He appeared to be a witness of truth. 2. Counsel for the respondent indicated that after hearing all the evidence, the Children's Guardian neither consents to nor opposes the application. In her final submissions, counsel acknowledged and accepted the exemplary employment history of DTX in service of his country and that over 20 years since the 1999 incident without any further incidents or complaints was a significant period of time. 3. We carefully considered all the evidence, including the acquittal verdict after the trial in December 1999, the length of time since the incident without DTX being subject to any charges, complaints or allegations, the evidence of close parental involvement, commitment and love shown by DTX to his own children, the statement of his wife, the personal and professional statements in support of DTX and the expert opinions of both Dr Lennings and Dr Martijn who supported DTX and his application. Based on all the evidence, we find that DTX does not pose a real and appreciable risk to the safety of children. Application of s.30(1A) of the Act 1. We must now consider the tests outlined in s.30(1A) of the Act. The first test we must determine is whether a reasonable person would allow his or her child to have direct contact with DTX in circumstances where he would not be directly supervised by another person while engaging in child related work. 2. The case of CHB v Children's Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. In this case, the relevant facts would include the criminal charges regarding the 1999 incident, the brief of evidence including the ERISP of DTX, the acquittal of DTX after trial, the fact that DTX had not been subject to any charges, complaints or allegations since the 1999 incident, the reports of Dr Lennings and Dr Martijn. It would also include the statement from his wife supporting him as a caring and loving father and the several references from friends and professional colleagues, many of whom stated they would not hesitate to allow DTX to supervise their children unsupervised. Based on the relevant facts, we are satisfied that a reasonable person would leave a child unsupervised in DTX's care. 3. The second part of the test of s.30(1A) is the public interest test. We must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount consideration. 4. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children. 5. DTX has been a member of the Australian Defence Force for 23 years and is currently an Officer. He is seeking a clearance to enable him to move to other positions within the Defence Force that may involve engagement with young recruits aged 16 and 17. He also requires a clearance so he can develop and coach young people in football. He has been a successful coach of men's and women's football since 2011. He has provided personal and professional references, all of whom attest to his good character. The professional references attest to his expertise and professionalism in his work. Based on all the evidence including his exemplary employment record with the Australian Defence Force, we are satisfied that it is in the public interest to grant DTX a working with children check clearance. It therefore follows that the correct and preferable decision is for us to make the following order. Orders 1. The orders are as follows: 1. The decision of the Children's Guardian dated 27 April 2016 to refuse to grant the applicant a working with children check clearance is set aside. 2. In substitution for that decision, the following decision is made; the applicant is 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 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: 24 March 2020