DNG v Children's Guardian

[2018] NSWCATAD 291

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DNG v Children’s Guardian [2018] NSWCATAD 291

Hearing dates:

On the papers

Date of orders:

14 December 2018

Decision date:

14 December 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C A Mulvey, Senior Member
L Houlahan, General Member

Decision:

1. Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with.

 

2. It is declared the applicant is not a disqualified person for the purposes of section 28(1) of Child Protection (Working with Children ) Act 2012 (NSW) for the two offences of carnal knowledge pursuant to s 71 Crimes Act 1900 entered on 28 November 1973 at the Court of Petty Sessions in Hornsby.

 

3. The application for an enabling order under section 28
Child Protection (Working with Children) Act 2012 (NSW) filed 23 July 2018 is granted.

4. The Children’s Guardian is to grant a working with children check clearance to the applicant pursuant to section 26(6) of Child Protection (Working with Children) Act 2012 (NSW).

Catchwords:

ADMINISTRATIVE LAW – review under section 28 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – carnal knowledge with a girl over 10 years of age and under 16 years of age – section 71 Crimes Act 1900 (NSW) – enabling order – discharge onus -would a reasonable person allow unsupervised access to their own child in context of child related work

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Children and Young Persons (Care and Protection) Regulation 2012 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:

AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BKE v Office of the Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BYR v Children’s Guardian [2013] NSWADT 310
Children’s Guardian v BQJ [2016] NSWSC 869
CHB v Children’s Guardian [2016] NSWCATAD 214
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
DHB v Children’s Guardian [2018] NSWCATAD 123
M v M [1988] HCA 68; 166 CLR 69
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1
R v Commission for Children and Young People [2002] NSWIRComm 101
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30
SL v Secretary, Department of Family and Community Services [2016] NSWCA 124
Smith v Commissioner of Police [2014] NSWCATAD 184
T v H, Unreported, Supreme Court NSW, Hodgson J, 19 December 1985
ZZ v Secretary of the Department of Justice [2013] VSC 267

Category:

Principal judgment

Parties:

DNG (Applicant)
Children’s Guardian (respondent)

Representation:

In Person (Applicant)

  Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s):

2018/00225794

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. This is an application filed on 23 July 2018 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”). The Children’s Guardian informed the applicant, who is referred to as “DNG” in these proceedings, that due to a disqualifying offence included in his criminal history, he was not eligible to be granted a Working with Children Check clearance (“WWCCC”).

2. In late 1973, the applicant was charged with two counts of carnal knowledge of a girl above the age of 10 and under the age of 16. The applicant made full admissions in relation to the offences. He pleaded guilty to the charges and received a sentence of “a 12 month good behaviour bond” and a fine of $100. The offence is one which is specified within Schedule 2 of the Act which deems the applicant to be a Disqualified Person and who is unable to obtain a WWCCC.

3. An order has been made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the “NCAT Act”) prohibiting publication and disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal. 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.

4. An application was made by the applicant to the Children’s Guardian for a WWCCC. On 26 June 2018, the applicant was advised that he was a ‘disqualified person’ due to the offences with which the applicant was convicted of in 1973.

5. In support of an order under section 28 (1) of the Act the applicant told the Tribunal that he wishes to be able to participate in employment as a bus driver and requires a WWCCC in order to fulfil that ambition.

6. The respondent filed written submissions in support of a declaration that the applicant not be treated as a disqualified person for the purposes of the Act in respect of the two convictions. Further the respondent contends that an enabling order be granted pursuant to section 28(6) of the Act so that the respondent grant to the applicant a WWCCC.

The Hearing

7. The matter was decided to be determined on the papers without a hearing by consent.

8. Section 50 of the NCAT Act provides:

50 When hearings are required(1) A hearing is required for proceedings in the Tribunal except:

(a) in proceedings for the granting of leave for an external or internal appeal, or(b) in connection with the use of any resolution processes in proceedings, or(c) if the Tribunal makes an order under this section dispensing with a hearing,

or(d) in such other circumstances as may be prescribed by the procedural rules.

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a) afforded the parties an opportunity to make submissions about the proposed order, and(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.(5) This section does not prevent the Tribunal from holding a hearing even if it is not required.

9. We are satisfied that the matter can be properly determined without a hearing in accordance with s 50 (2) of the NCAT Act.

The Evidence

10. The Application in this matter attached a letter from the Children’s Guardian dated 26 June 2018 informing the applicant that he is a disqualified person under the Act. The documentary evidence provided on behalf of the applicant and the respondent, which has been received by the Tribunal, is as follows:

1. Application filed 23 July 2018: Exhibit A1;

2. Letter of AB dated 7 August 2018: Exhibit A2;

3. Documents filed by the respondent 11 September 2018: Exhibit R1.

11. The Tribunal received and was assisted by written submissions from the respondent.

Legislative Provisions

12. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a WWCCC, or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see sections 3, 28 (1) of the Act.

13. The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act.

14. There is no relevant definition of “child abuse” contained in the Act.

15. However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children’s Guardian [2014] NSWCATAD 115 at [19]- [30], an offence of “child and young person abuse” has been included in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence is as follows:

Child and young person abuseA person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or(c) the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.Maximum penalty: 200 penalty units

16. In BFX v Children’s Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows:

The ordinary meaning of “child abuse” in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987.

17. The offence with which the applicant was charged was carnal knowledge of a girl of or above 10 years, and under the age of 16 years pursuant to section 71 Crimes Act 1900 (NSW), in the circumstances referred to later in these reasons. The offence with which the applicant was charged and ‘convicted’ is one which falls within clause 1(1)(g1) of Schedule 2 of the Act. Therefore, the applicant is treated as a “disqualified person”. By reason of section 18 (1)(a) of the Act the Children’s Guardian must not grant a WWCCC to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as “disqualified persons”, in the same section of the Act. The applicant is, relevantly for the purposes of the Act, now an adult and was an adult, aged over 18 years, at the time of the offence.

18. An enabling order is sought by the applicant pursuant to section 28 of the Act, which 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,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.

19. The respondent is a party to the proceedings pursuant to section 28 (4) of the Act.

20. A person is not permitted to engage in “child-related work” unless they hold a WWCCC: see section 8 of the Act. There is no issue in this matter that the applicant wishes to potentially engage work as a bus driver which requires that the applicant obtains a WWCCC.

Standard of Proof

21. It is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children (section 28 (7) of the Act). It is well established that the standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J at [34].

Relevant considerations

22. In making a determination under section 28 of the Act, the Tribunal must consider the matters under section 30 of the Act. Those matters are:

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,

(i1) any order of a court or tribunal that is in force in relation to the person,(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.

(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.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

What must be determined

23. The Tribunal is to determine whether the applicant has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut the presumption that he poses a risk the safety of children: section 28 (7) of the Act; BKE v Office of the Children’s Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before it in order to assess whether the onus of proof has been discharged to rebut the presumption. Such evidence to be considered will include the evidence provided by the respondent as well as the evidence provided by the applicant.

24. In determining whether the applicant does pose a risk to children it is accepted that the risk must be “a real and appreciable risk”: see BYR v Children’s Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was); BKE v Office of the Children’s Guardian[2015] NSWSC 523 per Beech-Jones J esp at [26], [27].

25. In BKE v Office of the Children’s Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[29] In Commissioner for Children and Young People v FZ [2001] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J)....[31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

[32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).[33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

26. In the disqualifying matter before the Tribunal the applicant had a conviction recorded and was sentenced to a good behaviour bond and received a monetary fine for the offences referred to in Schedule 2 of the Act.

27. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: 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] NSWIR Comm 101 at [130].

Discussion of the evidence

28. The evidence received by the Tribunal is required to be considered under each of the eleven subsections of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. Some of the subsections may be thought less relevant and may be given less weight than others, however each of the subsections is to be considered. That evidence is now set out below.

29. In addition, if the Tribunal concludes that the applicant does not pose a risk to the safety of children, it must also consider the remaining criteria as set out in section 30(1A) of the Act.

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

30. It is without doubt that the offence of carnal knowledge is serious. Notwithstanding this, the circumstances in which the applicant offended are set out in the respondent’s evidence R1. The applicant pleaded guilty to the offence. He states that at the time he offended the applicant and the victim were boyfriend and girlfriend. There was no planning or any pre-arrangement in relation to the offence. The applicant and the victim at the time were young. The sexual activity was consensual and led to the birth of the applicant’s first child. The applicant and victim were unaware at the time that they were breaking the law.

31. The respondent submits “the circumstances of the offending and the nature of the punishment received by the applicant indicate that the applicant’s disqualifying offence is at the lower end of objective seriousness for such offence, especially as the conduct that occurred within an otherwise consenting relationship”. We accept these submissions.

The period of time since those matters occurred and the conduct of the person since they occurred

32. Approximately 45 years have passed since the disqualifying offence took place.

The age of the person at the time the offences or matters occurred

33. The applicant was aged 18 years that offence.

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

34. The victim was 15 years of age at the time of the disqualifying offence. The respondent submits “this should be viewed in the context of the relationship between the applicant in victim.”

35. It is without doubt that the victim was vulnerable by virtue of her age.

36. The only evidence before us is that the sexual contact was consensual.

37. We find that the applicant and victim were in a consensual relationship at the time of the offence. The victim is vulnerable by virtue of her age. However, we have taken this into consideration particularly given the nature of their relationship and the age of the applicant. Consideration of vulnerability may produce an entirely different outcome if the applicant was significantly older than the victim which is not the case in this matter.

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

38. The difference in age between victim and the applicant is approximately three years.

Whether the person knew, or could reasonably have known, that the victim was a child

39. The facts in the court records, found in exhibit R1, identify that the applicant knew that the victim was 15 years of age. The applicant pleaded guilty to those facts. We do note the applicant’s submission: “All we did was what a lot of teenagers did and still do was explore our sexuality and didn’t even realise we were breaking the law”. Whilst ignorance of the law is no defence, and certainly no justification for committing an offence, it provides context in the circumstances of this matter and has been taken into consideration in our determination.

The person’s present age

40. The applicant is currently 63 years of age.

The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred

41. The applicant has not come to the attention of the authorities for any violent offences or for any sexual or child related offences since the disqualified offence.

42. The applicant was convicted of offences relating to taxation in 2008 in 2009 (two convictions).

43. The respondent submits the following in relation to the taxation offences: “in the circumstances, those convictions are not of direct relevance to a risk assessment of the applicant, ensure the given little or no weight in such and assessment.” We accept the submission.

44. The circumstances surrounding the disqualifying offence occurred within a consensual relationship.

45. The Tribunal has also taken into consideration the evidence contained in the statement of the applicant’s wife AB exhibit A2: “I have been married to DNG for 36 years and have known him for 40 years, he has always been an honest hard-working husband and friend. I have always known about the birth of his first child in the circumstances around her birth… DNG has been and still is a great father to our three children and a wonderful grandfather to our two grandchildren, in all those years I have never had any reason to doubt him in any way.”

46. We find the lack of subsequent adverse offences a positive factor.

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

47. The principles which are relevant in assessing the likelihood of repetition of abusive behaviour in relation to children are instructive: see T v H, Unreported, Supreme Court NSW, Hodgson J, 19 December 1985, page 18; SL v Secretary, Department of Family and Community Services [2016] NSWCA 124.

48. We have taken into consideration the evidence of AB as set out above. We accept that their evidence provides a lay person’s insight into the applicant’s character and that that insight is indicative of his lack of propensity to risk taking, and risk to vulnerable persons including children: see DHB v Children’s Guardian [2018] NSWCATD 123 at [42] – [43].

49. The respondent submits: “There would be a detrimental impact on children of any repetition of the disqualifying offence. However, based on the available evidence, the respondent considers that the likelihood of the applicant repeating the disqualified defence is low due to the lack of any other relevant offending, the time that has passed since the offence, the applicant’s current life circumstances, and the fact that the offence occurred in the context of acts between persons of a similar age in the context of a relationship.” We accept these submissions.

Any order of a court or tribunal that is in force in relation to the person

50. There is no evidence of an order of a court or Tribunal in force in relation to the applicant.

Any information given by the applicant in, or in relation to, the application

51. The applicant has given evidence in relation to which he considers relevant to his application.The applicant submits in a letter to the respondents dated 3 September 2018:

“we were a boyfriend/ girlfriend at the time, there was no planning or prearrangement, we were young and it was just something that happened. … I’m seeking a working with children check/ clearance because my GP recommended a change in the type of work I was doing due to the heavy lifting involved. I applied for a bus permit then found out I required the clearance in case I was needed to driving school bus. … in relation to myself being a risk to children I have found this whole situation and emotionally upsetting and the thought of being a risk to the safety of anyone, let alone children he is totally appalling, I have always worked hard to be valued member of society and would like to continue to do so.”

52. We have taken this into consideration and find that is persuasive in making a positive finding.

53. A letter of support from the applicant’s wife has been taken into consideration.

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

54. No information was obtained in accordance with the section.

Any other matters that the Children’s Guardian considers necessary

55. The respondent submits that there is sufficient evidence such that the applicant has discharged the onus to displace the presumption in s28(7) of the Act, that the applicant poses a risk to the safety of children.

56. We accept the submission.

Consideration of the section 30(1A) matters

57. The respondent makes the following submission in respect of section 30(1A)(a) of the Act: “… a reasonable person who is acquainted with the circumstances of the applicant’s disqualifying offence, the applicants lack of relevant offending since the disqualified offence, current life circumstances and the character reference from the applicant’s wife, wouldn’t allow his or her child to have direct, unsupervised contact with the applicant.”

58. In respect of section 30(1A)(b) of the Act, the respondent makes the following submission: “… it is in the public interest for the Tribunal to make an order enabling the applicant to engage in child related work. The applicant has received medical advice that he should engage in work that does not involve heavy lifting. The respondent considers that it is in the public interest for the applicant to be able to pursue work as a bus driver, which is both suitable to him in light that advice and beneficial to the community.”

59. We accept these submissions.

Consideration of the facts and determination

60. At the time in which the offence occurred the applicant 18. He is now approximately 63 years of age. He is clearly an adult of more mature years than he was at the time of the offence.

61. We accept the applicant’s evidence concerning the circumstances in which the offending conduct occurred.

62. We have considered and accept the respondent’s submissions which support a favourable finding by the tribunal that the applicant does not pose a real and appreciable risk to the safety of children.

63. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks that may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus, however it is not the only factor that must be considered.

64. In all the circumstances, on the balance of probabilities, taking into account all the considerations required under section 30 (1) of the Act, and having regard to the material before the Tribunal, it is concluded that the applicant does not pose a risk to the safety of children. The evidence establishes that the applicant has discharged the onus of proof as set out in 28(7) of the Act.

65. As set out above, we accept the respondent submissions in relation to the matters in which we must consider in respect of section 30(1A) of the Act.

66. We note that the decision of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 which dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:

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.

67. We accept and have taken into consideration the evidence of the applicant and his wife which is set out above. We have considered the police facts which relate to the disqualifying offence. The applicant pleaded guilty to those facts. In having this information before them, we find a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child related work.

68. 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.

69. We find nothing contrary to the notion of the public interest in granting a WWCCC. We find that the applicant’s right to follow his ambition of a bus driver, contrasted with the protection of children, are in this instance complimentary and in the public interest. Such activity would not pose an unjustified risk to the safety of children.

70. The applicant should receive a Working with Children Check clearance.

71. The order of the Tribunal is that:

1. Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with.

2. It is declared the applicant is not a disqualified person for the purposes of section 28(1) of Child Protection (Working with Children) Act 2012 (NSW) for the two offences of carnal knowledge pursuant to s 71 Crimes Act 1900 entered on 28 November 1973 at the Court of Petty Sessions in Hornsby.

3. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 23 July 2018 is granted.

4. The Children’s Guardian is to grant a working with children check clearance to the applicant pursuant to section 26(6) of Child Protection (Working with Children) Act 2012 (NSW).

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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

Decision last updated: 14 December 2018