This case is is the first reported case of a person subject of Prohibition Notice (under section 186) applying to a court or tribunal for its cancellation. As such it provides guidance to Regulatory Authorities and those subject to Prohibition Notices.
The case was heard by the New South Wales Civil and Administrative Tribunal and involved the applicant, Felicity Kendrick, seeking review of a decision by the Secretary of the
NSW Department of Education (the NSW Regulatory Authority under the National Law) under section 186(6), Children
(Education and Care Services) National Law (National Law), to refuse to
cancel a prohibition notice given to the applicant in April 2018. The applicant was an educator with a family day care service. The Department issued the Prohibition Notice on the applicant on the basis that there may
be an unacceptable risk of harm posed by the applicant to children in
circumstances where child abuse material was found on a USB memory stick at the applicant’s premises, and at the same
time, a letterhead template belonging to the applicant was
found on the same USB memory stick. However, police did not find sufficient evidence to charge anyone at the premises with a criminal offence.
The detailed facts of the case are set out in the judgment and I will not go into the details here. However, what is of particular interest is the Tribunal's assessment of what constitutes "an unacceptable risk of harm to a child or children", the ground for the giving of a notice under section 182. It is worth quoting, in detail, from the judgment:
The need to
determine whether there “may be an unacceptable risk of harm” posed by the
applicant to children is central as to whether the prohibition notice should be
issued in the first place pursuant to section 182 of the National Law, and
subsequently whether that notice should be cancelled pursuant to section 186 of
the National Law. The Regulatory Authority may issue the prohibition notice “if
it considers that there may be an unacceptable risk of harm to a child or
children” if the applicant were allowed to provide education and care to
children at her home. The Regulatory Authority may cancel a prohibition notice
in respect of a person if it is “satisfied” that there is not a “sufficient
reason” for the prohibition notice to remain in force for the person.
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 Child Protection (Working with Children)
Act 2012 (NSW) as follows at [29], and [31]-[33]:
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).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.”
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).
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.
In Children’s Guardian v CKF [2017] NSWSC 893 Justice Davies
agreed that the correct approach to risk is as outlined by the High Court in M
v M and the discussion referred to by Justice Beech-Jones extracted earlier in
these reasons. In Office of the Children’s Guardian v CFW [2016] NSWSC 1406,
Justice Harrison considered what use could be made of events where the Tribunal
had a lingering doubt or where suspicion remains. In addition, the Court of
Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 considered that a
number of similar allegations, in different locations, and from apparently
entirely independent complainants is material upon which the Children’s
Guardian and the Tribunal are entitled to act, or more practically, may lend
some weight to other risk factors.
The relevant section of the National Law (section 182)
refers to the phrase “unacceptable risk of harm”. It was submitted in this
matter that the approach articulated by the High Court and the Supreme Court,
and adopted in the Tribunal in the context of decisions made about Working with
Children Check Clearances, applies in relation to the context of the decision
to be made in this matter. The assessment of unacceptable risk of harm is
dependent upon a consideration of the objectives under the National Law, and
unacceptability of risk involves consideration of both the likelihood of the
risk eventuating and the gravity of the risk that may eventuate.
The provisions of the National Law and the associated
regulations are highly prescriptive in order to minimise the risk of harm to
children attending education and care services who are in a very vulnerable position,
and to protect those children from unacceptable risks of harm.
The risk to children arising from the discovery of the child
abuse material is not simply exposure to that material, which is an extremely
serious risk to the safety, health and well-being of children attending an
education and care service. There is also a risk that children attending that
service may be co-opted or forced to participate in the production of child
abuse material, which is an even more serious risk. The fact that child abuse
material was found on the premises grounds a strong inference that someone on
those premises is interested in child abuse material, and also therefore poses
a risk as a potential perpetrator of child abuse. A person who is a collector
of child abuse material encourages the market for production of that material
and is therefore complicit in the abuse of children the subject of that
material. The magnitude of the risk posed arising from the discovery of child
abuse material is therefore quite high. The fact that no perpetrator or
offender has been identified does not diminish or lessen the seriousness of the
risk. The gravity of the risk to children attending an education and care
service is gravely serious.
The child abuse material was discovered at the home of the
applicant. There appears to be little room for doubt that it belonged to one of
the residents of the premises. There is also no doubt about the existence of
that child abuse material. In all the circumstances, there is an unacceptable
risk of harm to children from being on the premises of the applicant and in the
care of or in the company of persons on those premises. The words used in
section 182 of the National Law are “if it [the Regulatory Authority] considers
that there may be an unacceptable risk of harm to a child”. Since section 182
refers to whether the Regulatory Authority considers there may be an
unacceptable risk of harm to a child, rather than a higher standard of
satisfaction, the provisions are considered to be protective and attempt to
prevent an unacceptable risk from arising. Therefore, it is appropriate to find
that the issue of the prohibition notice was justified in the circumstances of
this matter.
There is no necessity to identify the owner of either the USB
memory stick or the material which was stored upon that stick in order to say
that there may be an unacceptable risk of harm. This is consistent with the
authorities to which these reasons earlier refer. It is difficult to believe
that the applicant knew that the USB memory stick device contained child abuse
material since she gave it to her employee to use. In fact, it appears that the
applicant believes Mr Kendrick may have utilised the USB memory stick device,
but that he is currently no risk to children due to his disability. The
applicant said that the USB memory stick was safely stored in her bedroom.
Indeed, the police intelligence report which indicates that the post office box
address to which correspondence was addressed to the applicant’s husband was
probably a secret from the applicant. There is insufficient evidence however to
make a finding that Mr Kendrick was responsible for the child abuse material on
the USB memory stick device, and he did not give evidence presumably because of
his disability. Despite what is said by the applicant about her knowledge, she
cannot be excluded from the pool of possible owners of the device or the
material on it due to her knowledge of the existence of the device and her
comments to the investigator to which reference is made in the following
paragraph.
When the applicant was confronted with the fact that the USB
memory stick device was provided to police by her employee her response was
that: “She could have just came (sic) and told me what she found on it and
given it back to me and I could have destroyed it. I’m so angry about this.” In
other words, she would have destroyed the USB memory stick if she was aware
that her employee had found child abuse material on it. The applicant attempted
to put forward a proposition that she would have taken it to the police rather
than destroy the USB memory stick device, but that is clearly not what she
stated as recorded by the investigation.
The Tribunal is in the position of preferring the evidence
of the investigator to that of the applicant about the applicant’s statement
concerning destroying the USB.
Whilst it is understandable that the applicant may have
wished to protect her family from embarrassment and perhaps prosecution, she
was prepared to prefer her own interests or those of her family to the
interests and protection of children in her care.
The purpose of the National Law is to prefer the interests
of children in the care of paid carers over the interests of others.
The fact that the police could not identify an offender does
not mean that there is not an unacceptable risk of harm. As observed by Justice
McCallum in CMD v NSW Office of the Children’s Guardian [2018] NSWSC 1348 at :
“I am not persuaded that error is established. As noted on
behalf of the Children's Guardian, the task posed by the statute is to make an
assessment of risk. The statute plainly contemplates that, whereas the
imposition of a criminal penalty requires proof of a specific allegation beyond
reasonable doubt, it is enough to disqualify a person from clearance under the
Act that there exists a real and appreciable risk to the safety of children.
That is an evaluative judgment. It is to be undertaken in a very different
context from the assessment of the allegations in the criminal context, most
importantly including the fact that the applicant has a statutory duty to
disclose all relevant information. I do not see any conceptual difficulty with
the proposition that a tribunal might fail to be satisfied on the balance of
probabilities as to whether any specified act occurred and yet hold a
sufficiently strong apprehension concerning whether any of the conduct might
have occurred as to be satisfied that the person in question poses a real and
appreciable risk to the safety of children. That is the third category of case
explained by Harrison J based on the approach approved by the High Court to
Family Court matters where the question of risk arises. It is an approach which
unashamedly prefers the safety of children to all other considerations. To hold
that the Tribunal could not be satisfied that a person poses a risk to the
safety of children without making firm findings as to the occurrence of
particular conduct specified with the particularity of an indictment would
undermine that protection.”(emphasis added
The assessment of risk in this matter requires less
particularity than under the legislation which was governing the exercise in
CMD v NSW Office of the Children’s Guardian because of the broad compass of the
phrase “if it considers that there may be an unacceptable risk of harm to a
child or children” in section 182 of the National Law.
The applicant’s son stated in the presence of the police
when they executed their warrant words to the effect: “It’s OK Mum, it was
Dad’s before he got sick.” This was apparently in reference to the USB memory
stick device. Whether the son knew of the existence of the child abuse material
present on the USB memory stick device is not clear from the evidence before the
Tribunal. If the son knew what was on the USB memory stick device clearly the
risk to children in the applicant’s home is increased because no steps were
taken to protect the children at family daycare or to report the offending
images and videos to the police.
The applicant gave evidence that her son did not know where
the USB stick came from despite his comment in the presence of police.
The Regulatory Authority has determined that there is a
sufficient reason for the prohibition notice to remain in force. (paras 67-83).
The Tribunal held that rights and best interests of the child are paramount (a guiding principle of the NQF) to ensure the safety, health and wellbeing of childrenand "...that there is an unacceptable risk of harm to children in the care of the applicant or at premises from which she conducts family day care services." (paras. 64, 84, 86).
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