CZZ v Children's Guardian

[2018] NSWCATAD 56

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

CZZ v Children’s Guardian [2018] NSWCATAD 56

Hearing dates:

28 September 2017

Date of orders:

13 March 2018

Decision date:

13 March 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member
Prof E Foreman, General Member

Decision:

(1) The applicant is not to be treated as a disqualified person for two offences of indecent assault under the Crimes Act 1958 (Vic).
(2) The application for an enabling order is granted.

(3) Pursuant to s28(6) of the Child Protection (Working With Children) Act 2012, the Children's Guardian is to grant a working with children check clearance to the applicant.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – disqualifying offences – enabling order – circumstances of offence –weight of evidence – discharge of onus

Legislation Cited:

Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Civil and Administrative Tribunal Act 2013
Evidence Act 1995

Cases Cited:

AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
CGP v Children’s Guardian [2017] NSWCATAD 12
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v CKF [2017] NSWSC 893
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CYY v Children's Guardian (No 2) NSWCATAD 262
Jones v Dunkel (1959) 101 CLR 298
M v M (1988) 166 CLR (HCA)
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
R v Commission for Children and Young People [2002] NSWIRComm 101
Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Smith v Commissioner of Police [2014] NSWCATAD 184
ZZ v Secretary of the Department of Justice [2013] VSC 267

Category:

Principal judgment

Parties:

CZZ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
M Giacomo (Respondent)

  Solicitors:
CZZ (Applicant in person)
Crown Solicitor’s Office (Respondent)

File Number(s):

2017/00096493

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR decision

Introduction

1. On 30 March 2017 the applicant applied for administrative review in the Tribunal of a decision of the respondent to refuse to grant the applicant a Working with Children Check Clearance on the basis that he is a disqualified person. That finding was made on 6 March 2017.

2. The Applicant in these proceedings is referred to as "CZZ". CZZ is the applicant's pseudonym used in these proceedings in conformity with the order referred to in par 4 (below).

3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons. We note that the jurisdiction is protective. As a result of the finding the application for an Enabling Order will be granted.

4. On 27 April 2017 an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify 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.

5. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature, as set out by the Court when considering s 28 of that Act: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

4 Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

6. These proceedings arise because on 6 March 2017, the Children's Guardian issued CZZ with a Notice to Disqualified Person pursuant to s 18 of the Act. The applicant stated in his application that he was notified of the decision on 7 March 2017. On this basis, the claim for administrative review was lodged within the required period and as a result his application for administrative review has been received within time.

Background

7. In February 2017, the applicant applied for a Working With Children Check Clearance. The applicant seeks a clearance to enable him to carry out volunteer duties at his children’s school.

8. We observed that on the basis put forth by the applicant, from an examination of the legislation including the regulations it may not be legally necessary for the applicant to obtain a clearance in order to carry out the role of a volunteer. The basis of this observation is contained in cl 20 of the Child Protection (Working with Children) Regulation 2013.

Child Protection (Working with Children) Regulation 2013

20 Exemption from Act for specified workers and employers

(1) The following workers engaged in child-related work (and employers of those workers in that capacity) are exempt from the Act (other than section 7 of the Act):

….

(b) a worker who works for a period of not more than a total of 5 working days in a calendar year, if the work involves minimal direct contact with children or is supervised when children are present,

(c) a worker who carries out the work in the course of an informal domestic arrangement that is not carried out on a professional or commercial basis,

(d) a worker whose work involves direct contact only with children who are close relatives of the worker, other than a worker who carries out the work in the capacity of an authorised carer,

(e) a parent, or close relative, of a child who attends a school, an education and care service or other educational institution when volunteering at or for activities of the school, service or institution,

(f) a parent, or close relative, of a child when volunteering in connection with a team, program or other activity of which the child is a member or in which the child usually participates,

……

(2) Subclause (1) (e) and (f) do not apply to a parent or close relative, if the volunteering involves any of the following:

(a) providing personal care services to children with disabilities, being services that involve intimate contact with those children, such as assistance with toileting, bathing or dressing,

(b) providing mentoring services as part of a formal mentoring program provided by a government or non-government agency.

….

(emphasis added)

9. We note that these observations were raised with the applicant at the hearing but in any event the applicant wished to proceed with his application to the Tribunal.

10. After receiving the application in February 2017 the respondent became aware of two matters in the applicant’s history. These matters equated to a ‘disqualifying offence’ under the Act creating an automatic refusal of the application by the respondent in accordance with s 18(1)(a). The disqualifying criminal matters are as follows:

1. The applicant indecently assaulted an adult female by touching her on her breast in February 1994 in Victoria.

2. The applicant indecently assaulted an adult female by touching her on her buttocks in February 1994 in Victoria.

The applicant was given a 12 month Bond under the relevant Victorian law.

11. The offences were commensurate with offences listed in Sch 2 of the Act, equating to ‘disqualifying offences’ as defined under the Act.

The application for administrative review

12. The grounds of the substantive application are:

“That the charges that the decision not to grant a clearance were in 1994 which makes them 23 years old in 2017. There has been no further charges of this nature. If granted through [sic] the approval would allow me to volunteer at the school/s that my children attend”

13. More detailed grounds were provided in written material submitted by the applicant.

14. The issue to be decided by the Tribunal is whether the applicant should be granted an enabling order under s 28 of the Act. In reaching this position the Tribunal is required to traverse sections 30(1) and 30(1A) and determine that he has rebutted the presumption that he poses a risk to the safety and well being of children.

The working with children legislative scheme

15. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, 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 Act.

16. 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: s 4 of the Act.

17. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

18. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1)(b) of the Act). A child related role is set out in s 6(3) of the Act.

19. Section 18 of the Act constrains the Children’s Guardian from granting clearances to disqualified persons.

18 Determination of applications for clearances

(1) The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

20. Other provisions of the Act deal with assessment requirements which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)) however disqualified persons do not undergo a formal assessment before the Children’s Guardian, as the Act mandates that the Children’s Guardian must not grant a clearance to such persons.

21. However the Tribunal is tasked with conducting an assessment of a disqualified person’s risk if an application for an enabling order is made to the Tribunal.

22. Part 4 of the Act deals with reviews and appeals. Section 28 provides for the making of an enabling order by the Tribunal of disqualified persons. Relevant to these proceedings the section provides:

28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a working with children check clearance, or

(b) the person’s clearance has been cancelled under section 23,because the person is a disqualified person.

(4) The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

(9) (Repealed)

(Emphasis added)

23. As a preliminary finding we note that the Children’s Guardian has refused the applicant’s request for a clearance and the conditions of s 28(3)(a) are satisfied.

24. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Section 30(1) of the Act provides:

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the offences or matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person's present age,

(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(j) any information given by the applicant in, or in relation to, the application,

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,

(k) any other matters that the Children's Guardian considers necessary.

Burden of Proof

25. The jurisdiction of the Tribunal under s 27 of the Act has been found to be protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110]; 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, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

26. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

27. An application pursuant to s 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

28. However in this case there is a presumption that the applicant poses a risk to children, as the applicant is a disqualified person seeking an enabling order pursuant to s 28 of the Act. (s28(7)).

29. In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety and well being of children. In reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk.

30. As stated above, the Tribunal is required to have regard to the matters contained in s 30(1) of the Act in deciding this issue. (See paragraph 24 above).

31. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for 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". ...'

32. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

33. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].

The issue to be decided

34. The primary issue is whether the applicant currently constitutes a risk to the safety and wellbeing of children and as a result whether he should be granted an enabling order.

The hearing

35. The matter was heard on 28 September 2017 at a Courthouse in regional New South Wales. The applicant did not have legal representation. The respondent was represented at hearing by counsel and instructing solicitors. At the conclusion of the hearing, the Tribunal reserved its decision.

36. As the applicant represented himself, we assisted the applicant’s understanding of the role of the respondent’s counsel, the purpose of evidence-in-chief and cross-examination. We reminded the applicant of his duty to fully disclose matters to the Tribunal and our obligations to ensure fairness in the hearing to both parties and any witnesses. At various times we invited the applicant to provide further comments, evidence and submissions on aspects of his evidence. This was particularly the case in respect of the disqualifying matters due to the limited material available primarily due to the age of those matters.

37. The applicant gave evidence at the hearing. After some discussion about the proposed evidence of the report writer the parties agreed not to call the author. As a result no other witness was called at the hearing. Both parties relied upon written material.

Written Evidence

Applicant’s written material

38. The applicant filed a number of written items in support of his application.

1. Exhibit ‘A 1’: the application for administrative review dated 26 March 2017 filed 30 March 2017;

2. Exhibit ‘A 2’: a document attaching 12 items in the nature of: A counsellor report, personal references, School Volunteer ‘thank you’ invitations, volunteer of the year Nomination from sporting association. (Item 13 filed but not admitted);

1. Exhibit ‘A 3’: Health care records / hospital records reports concerning children in applicants care provided under cover April 2017;

2. Exhibit ‘A 4’: copies of further documents discovered by the applicant concerning Provisional and Final ADVO’s and Federal Circuit Court documents / orders relating to custody / family proceedings and medical records March 2017 and October 2012;

3. Exhibit ‘A 5’: 3 x personal references from ‘C.W.’, ‘C.S.’ and ‘T.F.’ all dated September 2017.

Respondent’s written material

39. The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings.

1. Exhibit ‘R-1’: documents filed 30 May 2017 (257 folios);

2. Exhibit ‘R-2’: being further documents obtained under s 31 of the Act filed 24 July 2017 (4 folios); and

3. Exhibit ‘R-3’: being further s 31 documents filed 13 September 2017 (97 folios).

40. Whilst the respondent did not call any witnesses, substantial cross-examination of the applicant occurred at hearing.

Weight to be given to expert evidence

41. The respondent filed detailed written submissions prior to the hearing and both parties made oral submissions at the conclusion of the evidence.

42. At the commencement of the hearing the Tribunal dealt with an application from the respondent concerning the proposed tender of expert evidence by the applicant. The respondent submitted that the proposed report dealt with the clinician seeing the applicant in a therapeutic capacity. Reference was made to section 79 of the Evidence Act 1995 and how the Tribunal might receive or rule on the report.

43. Section 76 refers to the opinion rule:

6 The opinion rule

(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

Section 79 provides:

79 Exception: opinions based on specialised knowledge

(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2) To avoid doubt, and without limiting subsection (1):

(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and

(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:

(i) the development and behaviour of children generally,

(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

44. The respondent submitted that the proposed report of ‘V.L.’ referred to no relevant testing such as the ‘Static 99R.’ Whilst the ‘DASS21’ screening tool was applied to the applicant indicating moderate stress with no significant depression or anxiety, the respondent submitted that overall the opinion of the author should be given little weight or dealt with consistent with the provisions of s 136 of that Act.

45. We observe that the report does not comply with the Expert Witness Procedural Direction of the Tribunal which was in force at the relevant time. We will return to this report later.

46. In addition it was agreed that Item 13 of Exhibit ‘A 1’ would be withdrawn as it related to the ongoing Family Court proceedings some of which were adjourned to the month following this hearing.

Applicant’s Evidence at Hearing

47. In evidence-in-chief, the applicant adopted his statement prepared for the final haring and filed 26 September 2017. The applicant stated in his evidence that the disqualifying offences from 1993 did not involve children. The applicant stated that since that time there have not been any findings by a Court against him concerning children.

48. The applicant stated that he has a long history of working with children and in support of this statement referred to a decade of employment in a hospitality business where his colleagues were 14 years and nine months up to adulthood.

49. The applicant gave a history of his volunteering work at his local Public School since his eldest son was in kindergarten. He also gave evidence about his long-term volunteering as an AFL Umpire in a regional competition where he advised that he had mentored children and people of all ages. He had in addition to the sporting context also mentored young persons as a parent. The applicant said that he ‘stands by his written submissions’.

Applicant’s evidence under cross-examination

50. In cross-examination the applicant was asked about matters declared in his written submissions, where he had said that he had disclosed all relevant matters. The applicant stated that he has disclosed to respondent to the best of his ability.

51. The applicant was asked by Counsel about custody and access arrangements for his four children noting that as per his submissions the arrangements were different to what had earlier been recorded. The applicant stated that they had changed when at the end of March 2017 Ms H did not return the children: ‘E’, ‘E’ and ‘C’ to him in accordance with approved arrangements. Those children now live in Sydney and attend school in Sydney. When asked when he had last seen those children the applicant advised that it was the Thursday prior to Father’s Day.

52. The applicant was asked about the Family Court proceedings ongoing in 2017. Reference to a ‘Magellan Report’ (which relates to risk) was made and the applicant decided not to use the Magellan Report as the only relevant conclusion is:

‘that that the children should live with him’.

53. Counsel asked why the applicant had not sought leave of the Family Court to use the Magellan (Risk) Report in these current proceedings. The applicant stated that he forgot about it and wasn’t sure it could be used.

54. The applicant advised that his son (the fourth child) was in his full time care from the separation until 23 July 2017 when the son went for a visit with his mother. His son has not returned. This matter will go to the Federal Circuit Court in mid-October, one month from the date of the hearing. The applicant was asked why he had not disclosed the application for a recovery order and affidavit in support in these proceedings. The applicant advised that he did not have copies to give NCAT. In addition he stated that once filed he needs leave of the Federal Circuit Court to obtain and use that material.

55. The applicant was questioned about the two different schools that his children attend. One is Sydney based and the other is in regional NSW. The applicant’s evidence was that for both schools he requires a clearance in order to be able to attend and assist with his children’s classes as a volunteer notwithstanding the provision of the Regulation as previously referred to.

56. He had last seen his son to the second mother (his youngest child who was not returned from the access visit) on 23 July 2017.

57. The applicant was asked about the 1993 offences. The applicant stated that the victim was a 19 year old woman who he knew. His evidence was that prior to the offences he and the victim had engaged in a sexual relationship while she was still involved with her pre-existing boyfriend. On the crucial aspect of the offences the applicant’s evidence was that he:

… did touch her on the breast and buttocks while she touched him as well. It was by consent.

58. The applicant was asked why he pleaded guilty if the woman had consented. The applicant advised that it was 23 years ago and he can’t remember or know his state of mind at that time. The applicant was asked whether the victim accused him of doing anything else to her. The applicant could not recall that matter clearly.

59. The applicant was asked about more recent matters, specifically whether there was an occasion in 2010 when he pushed Ms H? The applicant denied this. The applicant was then asked whether there was an incident when he ‘strangled’ or tried to strangle Ms H. Again the applicant denied this.

60. The applicant suggested that instead of him being the perpetrator against Ms H that he was the victim and had endured physical and emotional abuse over a number of years and that that abuse continues to the present.

61. The applicant was asked about a workplace incident in 2010. The applicant admitted throwing a Stanley knife at work, but he does not accept that he threw it at a colleague. The applicant says that he actually confiscated it from workplace use as it had contaminated mayonnaise.

62. In respect of the mother of his three eldest children the applicant was taken in cross-examination back to some significant domestic incidents. The applicant was asked about an incident where the eldest child (‘E’) was present, and which was referred to in the respondent’s material. The applicant admitted throwing Ms H onto the couch and sitting ‘on top of her’. The applicant was asked whether ‘E’ (a pre-schooler at that stage) punched the applicant on the leg. The applicant denied this happened. The applicant was asked whether he told ‘E’ to ‘F... off’. The applicant refuted this. He was asked whether he pushed ‘E’ away and ‘E’ fell over. The applicant answered that this was not what occurred. His evidence was that he led ‘E’ away and ‘E’ fell over.

63. In respect of Ms H the applicant was asked whether he pushed her arms behind her back? The applicant denied doing this. He was asked whether he said ‘F.. off before I kill you’ to Ms H, which the applicant denied. He was asked whether he put his hand over Ms H’s mouth and throat which he also denied.

64. The applicant’s evidence was that the police turned up and then Ms H’s sister turned up. The applicant was asked whether he said ‘shut the f… up or I will smash you.’ The applicant denied saying this. The applicant stated that he didn’t ‘make a fist’ to police but merely pointed at them.

65. Whilst Apprehended Violence Orders (AVOs) were issued the applicant remained in a relationship with Ms H. FACS became involved and determined that the children were classified as at ‘moderate risk’ (of harm) due to their risk factors of neglect and abuse. The applicant was asked about the safety plan put in place by the Department. The plan involved the two adults not having any arguments in front of the children.

66. The applicant was asked about the court convictions arising from these incidents in 2012. His evidence was that he pleaded guilty to the charges as he was advised by his solicitor and the police that if he did not then he would be going to prison. The applicant gave evidence that during the course of the AVO a police officer (Senior Constable ‘M’) would park across the road from his house and follow him to work.

67. The applicant gave evidence that Ms H wanted to withdraw the charges but that the police refused as they told her that she was a ‘Crown witness’. The applicant told the Tribunal that he separated from Ms H in September 2012 after he found her in bed with another man. The applicant stated in his evidence at hearing that his son “E” was sexually assaulted by Ms H’s then boyfriend.

68. Counsel for the respondent put further propositions to the applicant. He was asked whether he ever controlled finances, isolated his partner from her family, assaulted her or placed his hands on her throat. The applicant denied all of these things and said that the reasons that he agreed to the Federal Circuit Court orders was because he saw it as being in the best interests of the children. It was suggested that these orders were agreed to despite the applicant’s concerns that Ms H would assault him and the children. It was therefore suggested that these concerns were unfounded.

69. The applicant was asked what he saw as being the risk to the children. The applicant stated that the risk was domestic violence. When asked about his ex-partner’s partners the applicant agreed that they were also risks to the children. However the applicant stated that he didn’t know that Ms H was with a partner when he agreed to the orders. He found out that she had a new partner later.

70. A number of direct questions were asked to the applicant about matters which might constitute child sexual assault. References where made to the child ‘K’ describing his penis a certain way. The applicant was asked whether he had ever hit or kissed ‘K’s penis, or whether ‘K’ had ever asked him to kiss it. The applicant answered that this had never occurred.

71. In the applicant’s view the two mothers of his children colluded to make the statements negative to him and his character. The applicant’s evidence was that the first mother of his children at one time threatened to kill the other mother (the mother of his youngest child ‘K’). Counsel suggested to the applicant that if that were true it was unlikely that they would work together to attack his character in respect of his children.

72. The applicant was asked about the Lynar report (which was the first item within Exhibit ‘A-2’). The applicant said that he had seen the professional twice in May and then a third time. He stated that he had attended on the professional specifically for the purpose of having a report prepared for these proceedings.

73. The respondent inquired as to whether Ms Lynar was actually aware that she was preparing the report for these proceedings, to which the applicant confirmed that she was aware. When prompted as to whether such a report seemed unusual bearing in mind that Ms Lynar was treating him, the applicant said that Ms Lynar advised that she can’t form an opinion on something that happened 24 years ago.

74. The applicant advised that he only gave Ms Lynar the disqualification letter from the Children’s Guardian and discussed with her the 1993 offences and his relationships with the mothers of his four children.

75. The report and session were ‘bulk billed’ on Medicare and the applicant advised that he told Ms Lynar that he needed a report for the Tribunal. There was some discussion with Ms Lynar as to whether it was specifically for the Tribunal. It was at that time the applicant showed the disqualifying letter to Ms Lynar. The applicant said that testing had occurred (the DASS 21) and that he saw her on the third occasion to pick up the report. At that time she asked him about his well-being. Prior to seeing Ms Lynar he obtained a Medicare referral from his General Practitioner as part of a mental health care plan. The applicant conceded when questioned that he had no current mental health plan in place.

76. A further allegation of dragging the child ‘C’ down the carpeted stairs was put to the applicant and denied.

77. Both the Tribunal and the respondent’s Counsel sought to better understand the nature and circumstances of the two related disqualifying offences. The applicant stated that the incident occurred in a shopping plaza in a Victorian regional centre in 1993.

78. The applicant explained that he was arrested by a police officer that he played football with at the time. The Tribunal asked questions of the applicant about what occurred as it was extremely unclear on the basis of the documentary evidence and the applicant’s earlier evidence. There was some suggestion that the boyfriend had gone away for the week or weekend and that the applicant and the victim teamed up to resume their affections.

79. The applicant suggested that his understanding was that the victim’s current boyfriend had not left town but had seen them and was following them in the Mall when the incidents occurred. The applicant implied that he worked out the boyfriend was nearby. We infer from the somewhat jumbled evidence that the applicant and the victim were putting on a ‘display’ for the benefit of the boyfriend, but that perhaps the victim had second thoughts about the matter. However the applicant stated that he understood that the victim and the boyfriend had made a complaint about him in concert. It was in these circumstances that the victim and her boyfriend had the applicant charged.

80. The Tribunal gave the applicant further opportunities to elaborate on these central matters, but the applicant was unable to elaborate. In re-examination the applicant clarified some of the issues around the evidence concerning the issuing of AVOs and ADVOs. The applicant stated that some of those orders were to protect him from his ex-partners.

81. At the end of the applicant’s evidence the respondent outlined that there was further material that had only been applied for one week prior to hearing as it related to Federal Circuit Court matters of 20 September 2017.

Applicant’s submissions

82. At hearing the applicant submitted that the serious disqualifying charges were 23 or 24 years ago and that this was a long time ago in the scheme of things. The applicant submitted that having been found guilty no formal conviction was recorded as a result of him successfully complying with the good behaviour bond.

83. The 2012 AVO was for one year and there were no breaches of any orders on record and that these matters stood in his favour. In respect of the Department investigating sexual allegations concerning his behaviour with the children ‘E’ and ‘C’, both children have subsequently stated that the alleged events did not happen.

84. The applicant submitted that there was no evidence against him nor is there any other allegation from any person other than his ex-wife.

85. The applicant submitted that his 14 years working with and slightly less time doing volunteer work with children should also stand in his favour. Reliance was placed on the school references.

86. The applicant submitted that the child ‘K’ who is his youngest, has recently been placed in full time care as a result of his mother’s inadequacies in caring for him since her failure to return the child to the applicant in July 2017.

87. In closing the applicant submitted that the School Principal has described him in a positive way on two occasions and significant weight should be placed on this.

88. In written submissions the applicant indicated how he had addressed the disqualifying offences as he was of the understanding from the respondent’s correspondence that these were the significant matters to address.

89. The applicant submitted that since 2010 no orders have been sought against him under child protection legislation and that he has never been found to be in breach of orders. Nor was he subject to any orders at the time of these proceedings.

90. The three eldest children were in his full time care from 2013 until March 2017 when they were taken to Sydney by their mother, contrary to Family Court orders, and enrolled in a public school in Sydney.

91. In respect of the 2010 incidents the applicant submitted that these arose from an argument with Ms H, and that police did not observe any injuries.

92. In respect of the late 2012 incident the applicant pleaded guilty on the advice of his solicitor at that time. The applicant submitted that Ms H was punching him in the face. As a result he pushed Ms H into the couch.

93. At all times the children remained in his care, with the knowledge of the Departmental case workers, and subject to orders which were complied with. On 30 June 2013 Ms H agreed to the applicant having full time custody of all three children. Various ADVOs were issued by police in the applicant’s favour in the period of 2013 concerning Ms H and her partner.

94. Final orders were issued in the applicant’s favour in June 2014 controlling the behaviour of his ex-wife and her associates.

95. Various submissions were made about Ms H’s applications to the courts to regain some access to her three children which occurred from late 2014 to late 2015. Consent orders were agreed to providing the mother with some access on weekends and portions of school holidays.

82. Consistent with his evidence at hearing the applicant pointed out how he had complied with all orders of the court, but his ex-wife had not. In respect of the 2017 sexual abuse allegations the applicant submitted that there were no signs of injury and that ‘E’ had made no disclosure. Further investigations did not identify any evidence to support the allegations against the applicant.

83. The applicant’s submissions set out other lines of ‘fruitless inquiry’ into allegations made against him. In closing the applicant made a Jones v Dunkel type submission in contrasting his evidence with that of the Children’s Guardian: Jones v Dunkel (1959) 101 CLR 298.

Respondent’s Submissions

98. The respondent in oral submissions referred to the applicant’s reference to Jones v Dunkel. The respondent submitted that there is no inconsistency in the evidence.

99. The respondent submitted that there were known reasons that the mother had removed the children earlier in 2017 from the applicant’s care. Whilst it was speculated by the applicant the respondent submitted that the reasons for the unauthorised ‘uplift’ was the disclosure of sexual assault by the child victim.

100. The respondent submitted that a Magellan report goes to risk, and that it may set out the relevant reasons. Whilst the applicant submitted at one stage that the women were colluding, the respondent submits that this is contrary to the evidence that they were at odds with each other (in dispute).

101. The respondent submitted that it was a significant omission of the applicant that he had not put the Federal Circuit Court material before the Tribunal, nor did he refer to those proceedings. In addition the respondent submitted that the oral evidence was ‘lacking’.

102. In respect of the 1993/94 disqualifying offence in Victoria, the respondent submitted that the applicant pleaded guilty but can’t remember why.

103. On the expert evidence of the applicant the respondent submitted that the report can’t be satisfactorily received under s 79 of the Evidence Act 1995 as the authors expertise was not sufficient to overcome the opinion issue. The respondent submitted that for the purpose of findings and evidence in these proceedings the author could not be considered an expert, and it appears from the available evidence that she saw the applicant in a therapeutic context.

104. In addition the respondent submitted that the author was provided with insufficient material and was unaware of more recent FACS involvement with the applicant.

105. The respondent conceded that the lay references are favourable to the applicant but notes that the majority disclose no evidence of knowledge of the disqualifying offences and in some instances other relevant matters. The respondent submitted that the referees seem to be under the view that the applicant is still the primary carer for his children.

106. An issue arising was that the applicant had consented to the return of the children to limited access over recent years even though by his own evidence there was risk. This it was submitted was adverse to the applicant.

107. In closing the respondent submitted that the presumption of risk has not been discharged because the evidence is not sufficient to do so.

Findings

108. We find that the applicant touched the victim on the breast and the buttocks without her consent.

109. We note that the matters which create the presumption that the applicant is a risk to children and young persons were positively found (as a matter of judicial record). However, we note that these disqualifying offences did not involve children in any way. We also note that these offences are at the very bottom of seriousness in respect of disqualifying offences, and the lack of a formal conviction, the entering into a bond after a finding of guilt illustrate that the circumstances were at the lower end of offending behaviour. Due to the significant passage of time, minimal weight can be attributed to this conduct in determining current risk. We are required to, and have considered the disqualifying offences but we find that they themselves are not indicative of current risk.

110. We find that the applicant gave his evidence in a candid manner, even though there were, at times, gaps and inconsistencies in his answers. We did not however discern anything untruthful in his evidence and are satisfied that as a self-represented person he has complied with his duty to disclose fully to the Tribunal to the best of his ability at hearing. The Tribunal accepts the evidence concerning the disqualifying matters upon which we have already made findings.

111. Notwithstanding our general observations above, we did not find his evidence as being fanciful to the extent that we could not accept any answers as true. We do note the major inconsistency in the evidence of the two mothers of his children both being enemies and allies at similar times in respect of the applicant. To the extent that the entire family dynamic was involved in custody and care proceedings and assessed as being dysfunctional, we observe that there may be viable explanations for such a state of affairs when the stakes are high.

Section 30 (1) considerations

112. Section 30 of the Act sets out the factors that the Tribunal must consider in determining a review application. We shall consider each in turn.

(a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.

113. The applicant's application to the Tribunal is brought about by two disqualifying offences committed at the same time as part of the same incident (even though a couple of days separate 2 charges on the administrative paperwork). The applicant is presumed to be a risk, but we note that those matters occurred almost a quarter of a century prior. In addition they did not involve children and were at the lower or close to the lowest of the range of seriousness of the schedule of disqualifying offences. The offences are serious due to the fact that they are listed in Schedule 2.

(b) The period of time since those offences or matters occurred and the conduct of the person since they occurred.

114. The offences occurred in February 1994 and occurred over 23 and a half years prior to the hearing.

115. In the time since those offences the applicant has been accused of a number of matters involving his partners and more recently his children. The applicant has however only received one common assault finding (other than resist arrest / assault police findings with police victims). Whilst those findings are also matters of judicial record, we note the totality of the evidence at hearing as to the circumstances of those incidents and how many of the primary matters over the 2010-2013 period were withdrawn by complainants.

116. The applicant has complied with all orders issued by the courts and has refuted much of the material filed against him. Other matters as set out in the respondent’s submissions at paragraphs 55-76 did not result in any positive findings against the applicant. On the evidence and material before us, in respect of the allegations concerning the January 2012 incident we are unable to ascertain what occurred. Whilst there is a positive finding in respect of the pushing of Ms H onto the couch, we are unable to determine what actually occurred. We find however that bearing in mind the police material, observations by the officers, and the lack of any further charges, that on the balance of probabilities the applicant’s version is to be preferred.

(c) The age of the person at the time the offences or matters occurred.

117. The age of the applicant when the disqualifying matters occurred was 21 years. We note that he was a young adult and is now a middle aged man. In the later court matters the applicant was 37 years of age.

(d) The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim.

118. The victims were adults (Ms H and police). Ms H was 23 years old. The victim of the disqualifying offence was 19 years old. There would have been a level of vulnerability due to the fact that the applicant was male and the other parties were female.

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

119. Based on the age range set out (above) the difference in age between the applicant and the child (‘E’ who was allegedly pushed) was 35 years. There is a 17 year age difference between the applicant and Ms H and a 2 year age difference concerning the disqualifying matters.

120. All matters involved a pre-existing relationship between the parties. All of the allegations involved persons well known to the applicant, as either a spouse, friend or close acquaintance. In respect of allegations concerning children, they involved his own children.

(f) Whether the person knew or could reasonably have known, that the victim was a child.

121. None of the victims in the matters positively adjudicated by the courts were children, but in respect of the relevant allegations, where children were involved for the reasons set out at (e) the applicant knew who was a child.

(g) The person's present age.

122. The applicant was 44 years old at the time of the hearing.

(h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred.

123. The applicant’s criminal record comprises the two disqualifying matters, and the 2012 matters involving common assault and offences against arresting police. The record is serious but not in our view extremely serious. When we have regard to the totality of the evidence the seriousness diminishes slightly and we note that the sentences imposed were in the bottom half of the applicable range of penalties.

124. We also note the positive references and the attestations from the school (including the Principal) concerning the applicant’s positive attributes. The applicant on the evidence before us has been involved in acrimonious custody proceedings before the courts for the last five years involving children from both of his child bearing relationships.

125. We accept much of the applicant’s evidence at hearing on his history and the inferences that should be drawn from that over the last 8 or 9 years. As all of the allegations (other than the criminal charges) have been significantly discounted by both the investigating authorities and the evidence and material before us, we find that other than the criminal findings, the applicant’s conduct has been broadly satisfactory. This is not a statement of endorsement of the applicant’s character but couched in the context of the ultimate task that the Tribunal is considering.

(i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition.

126. The Applicant provided a number of references and letters of support but note that his expert’s opinion in our view can be given little weight for the reasons already set out. Whilst the applicant has not had proper access to his children in the months leading up to the hearing, in our view there was little evidence to indicate any significant likelihood of any repetition of offending behaviour. It would appear (on our assessment of the evidence) that by separating the parents, conflict no longer arises in a domestic context and there is minimal impact on children by the applicant’s current behaviour. The serious abuse allegations were determined to be unfounded and in our view on the totality of the available evidence are significantly unreliable so as to be attributed little or no weight. We find that in the evidence and material before us, the alleged sexual abuse matters have no basis in fact.

127. However if any offending behaviour was to reoccur it is clear from the material before us that the impact on children would be significant.

(j) Any information given by the applicant in, or in relation to, the application.

128. The applicant tendered a number of character references in support, and report by a health professional (the Lynar report) He also provided written material some of which was adopted in evidence. The character material is (in our view) in some ways supportive of his history of working with children in an unsupervised and unproblematic context. We find for the reasons set out at paragraphs 46 and 47 above that the Lynar report should be given little weight.

(j1) Any relevant information in relation to the person that was obtained in accordance with section 36A.

129. The material from Victoria was inconclusive other than in respect of the positive Court findings against the applicant leading to him being assessed as a disqualified person under the Act. We note that in addition to the respondent’s powers under the Act, material was again sought under the summons provisions and powers of the Tribunal.

(k) Any other matters that the Children's Guardian considers necessary.

130. The respondent made various submissions concerning the current state of the care proceedings between the applicant and Ms H and future matters concerning Ms ‘S’. The respondent maintained its position that the clearance should be refused.

The statutory approach

131. The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Unlike the facts in BKE, certain matters in the current case were settled, in that the Courts had made positive findings on the conduct and the applicant. Whilst the applicant did not formally resile from that position, he made various submissions concerning the basis for the court outcomes against him.

132. At pars 29 - 33 of BKE the Court observed:

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).

30. Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at p 70).

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.

Consideration

133. Our substantive role is to assess risk, and whether specifically the applicant poses a risk to the safety and well-being of children and young people. We have based our consideration on all of the evidence given by the applicant at hearing (and in documentary form), and for this reason we have set out above much of his evidence at hearing. We refer to our observations about the nature of that evidence and the timing and confluence of related proceedings occurring close to the hearing date in these proceedings.

133. We acknowledge the applicant’s motivation in seeking an enabling order even if our preliminary view is that for the stated purpose in the context set forth, the applicant does not legally require a clearance.

134. We refer to our comments around the circumstances of the disqualifying offences, the outcomes of those matters, and our findings at para 112. In particular we note the lack of any formal adverse finding concerning children, other than the court evidence concerning ‘E’ in the assault of Ms H being the incident involving police (resist / assault) charges.

135. Notwithstanding the import of the disqualifying provisions, and the positive findings against the applicant, we discount the 1993 matters as having any remaining weight when considering the notion of current risk as set out by Young J in Commission for Children and Young People v V as referred to at para 31 (above).

Further finding

137. Based on a consideration of all of the evidence, we are not satisfied that the applicant currently poses a real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we so find.

138. In consideration of real and appreciable risk based on consideration of all the circumstances we find that the applicant does not pose a risk to the safety and well being of children and young persons.

139. We note that the safety, welfare and well being of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act. In making these findings, we are of the view that the applicant has discharged his onus under s 28 (7) of the Act.

Section 30 (1A) consideration and findings

140. Having made the finding that we have, we are required to have regard to this section.

141. The section requires the reasonable person to allow his or her child to have direct contact with the affected person that was not directly supervised by another person whilst engaged in child related work. In addition the section requires that the making of the order be in the public interest.

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

142. In our view a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. As in the Victorian cases we are of the view that a reasonable person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk. Particular regard would be had to the relevance of the disqualifying matters and the evidence of the applicant concerning the last 10 years notwithstanding the one suite of charges.

143. Regard would also be given to the unblemished history of working as a volunteer with children over a significant number of years since 1994.

144. A reasonable person whilst approaching the matter with some caution would in our view find that any risk was insufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A).

145. We note that the case of CYY v Children's Guardian (No 2) NSWCATAD 262 dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:

73. 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. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

146. In CZZ’s situation a reasonable person would be aware of the circumstances of the evidence before us, and as a result, we find that a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work

147. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

74. The second part of the test of s.30(1A) is the public interest test. The Tribunal 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 considerations.

75. 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.

148. In our view there is nothing contrary to the notion of the public interest in the granting of a clearance. The issuing of a clearance would not pose an unjustifiable risk to the safety of children. Consistent with the reasoning in PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 we believe that it is in the public interest to grant the clearance.

149. As a result we find that it is the public interest to make the enabling order.

Conclusion

150. For the reasons set out above, we reach the following conclusion.

151. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does not pose a risk to the safety and wellbeing of children.

152. In our view, having regard to all of the material before the Tribunal, the applicant does not currently pose a risk to the safety of children.

153. It therefore follows that the applicant should be granted an Enabling Order.

Orders

1. The applicant is not to be treated as a disqualified person for two offences of indecent assault under the Crimes Act 1958 (Vic).

2. The application for an enabling order is granted.

3. Pursuant to s 28(6) of the Child Protection (Working With Children) Act 2012, the Children's Guardian is to grant a working with children check clearance to the applicant.

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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

Amendments

29 March 2018 - Order 3 included

Decision last updated: 29 March 2018