FBL v Children's Guardian

[2022] NSWCATAD 62

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FBL v Children’s Guardian [2022] NSWCATAD 62

Hearing dates:

On the papers

Date of orders:

23 February 2022

Decision date:

23 February 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
L Houlahan, Senior Member

Decision:

(1)   The time to bring the application is extended to 29 July 2021.

(2) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the requirement of a hearing is dispensed with. The matter is to be determined on the papers.

(3) 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) in respect of the offence of Manslaughter (7 counts) under s 18 of the Crimes Act 1900 entered on 26 June 1987 at the Supreme Court of New South Wales at Sydney.

(4) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) dated 29 July 2021 is granted.

(5) The Children’s Guardian is to grant a working with children check clearance to the applicant pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW) forthwith.

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 – manslaughter of a child – section 18 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Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)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

Texts Cited:

none

Category:

Principal judgment

Parties:

FBL (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2021/00216188

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 29 July 2021 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 ‘FBL’ 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 September 1984, the applicant was charged with murder (7 counts), in the alternative manslaughter and affray. On 12 June 1987, the applicant was convicted of seven counts of manslaughter and one count of affray. He was sentenced to penal servitude of 12 years for each count of manslaughter, and 6 years imprisonment for the offence of affray, with a non-parole period of 7 years.

3. At the time of determining this matter the applicant was 63 years of age. The circumstances relating to the conviction which deems the applicant to be a Disqualified Person occurred when the applicant was 26 years old and are as follows.

4. On 2 September 1984, the Bandido Motorcycle Club and rival Comanchero Motorcycle Club were involved in a violent affray at the Viking Tavern, which became known as the ‘Milperra Massacre’. There were seven fatalities in total: four Comancheros, two Bandidos and a 15 year-old girl.

5. The applicant did not take part in the affray. However, he drove two members of the Bandidos to the Viking Tavern, including one who was armed with a shotgun. At the time, the applicant was a full member of the Bandido Motorcycle Club.

6. There were thirty-one co-accused, including the applicant, each of whom was charged with seven counts of murder and one of affray under the doctrine of common purpose. Whilst the applicant did not make any violent contribution to the fight, he was found to have made himself a party to a certain level of violence by having driven two armed men to the scene.

7. On 12 June 1987, the applicant was convicted of seven counts of manslaughter and one count of affray. He was sentenced in accordance with the matters set out in paragraph [2] above.

8. Of the thirty-one co-accused, nine individuals were convicted as charged, twenty-one (including the applicant) were found not guilty of murder but guilty of manslaughter, and one was convicted.

9. The offence of manslaughter of a child is one which is specified within Schedule 2 of the Act which deems the applicant to be a Disqualified Person and a person who is unable to obtain a WWCCC.

10. On 26 August 2021, an order was 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.

11. An application was made by the applicant to the Children’s Guardian for a WWCCC. On 25 October 2018, the applicant was advised that he was a ‘disqualified person’ due to the offences with which he was convicted of in 1984.

12. In support of an order under section 28 (1) of the Act the applicant told the Tribunal that his partner has the daily custody and care of a child aged 16 years under a foster care arrangement and he requires a WWCCC in order to be part of that household.

13. The respondent consents to the applicant being declared not as a disqualified person for the purposes of the Act in respect of the charges. The respondent supports the applicant being granted a WWCCC.

The Hearing

14. The parties filed written submissions supporting the Tribunal determining the matter on the papers without the need for a hearing pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (‘CAT Act’). We were satisfied that we could dispense with the hearing and order accordingly.

15. It is noted that the applicant has not filed his application within the prescribed 28 days as required by s27(1) of the Act. In the applicant’s Affidavit affirmed 21 January 2021 he sets out a number of reasons explaining his delay. The reasons include that after he was refused a WWCCC his partner organised alternate arrangements for the children she was then caring for by renting a house for her and the children to reside. This was because the applicant could not remain in the same household. That care placement which the applicant’s partner was caring for children ended in September 2019 due to the expiration of the lease of the rented property. The children were then placed in alternate care. The applicant’s partner in June 2020 was contacted directly by the child who the applicant’s partner previously cared for and stated that she was unhappy with her current care arrangements and wanted again to live with the applicant’s partner. It was following these circumstances that the applicant re-agitated the respondent’s decisions concerning its refusal of a WWCCC.

16. The respondent does not oppose the Tribunal extending the time for the applicant to seek review of its 2019 decision. We are satisfied based on the material before us that we should do so. The time for which the applicant seeks review of the respondent’s 2019 decision is extended to 29 July 2021.

The Evidence

17. The applicant’s evidence consists of:

• Application filed 29 July 2021 and annexed documents;

• Character references in support of the application;

• Affidavit of the Applicant affirmed 22 January 2021.

18. The evidence of the respondent included:

• Bundle filed: 24 September 2021;

• Bundle filed: 27 October 2021.

19. The Tribunal received and was assisted by written submissions from the parties.

Legislative Provisions

20. 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.

21. 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.

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

23. 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 abuse

A 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”

24. 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.”

25. The offence with which the applicant was charged manslaughter (7 counts) one of those being of a child pursuant to section 18 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 Schedule 2 cl.1(1)(b) 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, an adult and was an adult, aged over 18 years, at the time of the offence.

26. 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.”

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

28. The applicant is not permitted to be a member of the household with his partner where his partner has the care custody and control of a child unless he holds a WWCCC. There is no issue in this matter that the applicant wishes to obtain a WWCCC to be part of that household.

Standard of Proof

29. 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

30. 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

31. 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.

32. 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].

33. 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.

34. Most recently, the New South Wales Court of Appeal in CXZ v Children’s Guardian [2020] NSWCA 338 has affirmed the decision of Beech-Jones J in BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33] concerning the method to be used in assessing risk.

35. The Court of Appeal in CXZ describes the assessment of risk as being a single process, instead of what was incorrectly described previously as, a mandatory three-step process (see CXZ at [55]). Simpson JA, describes that process in CXZ at [57], as:

“…The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well-founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.”

36. Where there are multiple considerations, the Tribunal is to evaluate the accumulated weight of the allegations in terms of risk. This will include consideration of factors including the seriousness of the allegations, the strength of any evidentiary support, and the relevance of the conduct to the risk to the safety of children.

37. When determining an application for administrative review, s 63 of the Administrative Decisions Review Act 1997 is apposite:

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: 

(a)   any relevant factual material, 

(b)   any applicable written or unwritten law.

38. 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

39. 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.

40. 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

41. Manslaughter of a child is a most serious offence. Objectively, the circumstances surrounding the deaths of seven individuals, including a 15 year-old child, are a serious and tragic outcome for which the applicant has been convicted of manslaughter and affray.

42. The applicant’s culpability is lesser than some of his thirty-one co-accused, because he did not participate in the violence. Nevertheless, he transported two armed individuals to the scene of the affray, was a full member of the Bandidos, and is therefore found to be partly responsible for the violence that occurred.

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

43. The disqualifying offence occurred approximately thirty-seven years ago. The applicant’s criminal history does not record any other charges or convictions.

44. It is noted and set out in the respondent’s submissions which we adopt:

‘The applicant was a ‘model prisoner’. He maintained employment throughout his time in custody and was said to have an excellent influence on the other prisoners in terms of work. He demonstrated genuine remorse and determination never to again place himself in a similar situation, to what occurred on 2 September 1984. He earned an excellent remission for his good behaviour and was granted early release on parole on 12 October 1988. The applicant was gainfully employed following his release from prison and his conduct since that period has demonstrated a genuine effort to rehabilitate into society.’

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

45. The applicant was 26 years of age at the time of the disqualifying 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

46. There were 6 adult victims and one child victim, a 15 year-old girl. The adult victims were member of the Comanchero and Bandido Motorcycle Clubs. The 15 year-old girl was vulnerable due to her age and her status as a member of the public who was unintentionally caught up in the affray.

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

47. The applicant was 26 years of age at the time of the disqualifying offence. The child was a 15 year-old girl and a member of the public.

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

48. The applicant did not physically participate in the affray, arriving some time after the offending conduct had occurred. Due to this, the applicant would not have known the ages of the victims. However, he could reasonably have known that members of the public were potentially at risk since the affray occurred in a public place.

The person’s present age

49. The applicant is 63 years of age at the time of hearing.

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

50. On 20 April 1982, the applicant was convicted of marijuana cultivation and possession charges. He was fined $300 and $100 respectively. We accept the respondent’s submissions that these are historical matters, which carry minimal weight on the assessment of whether the applicant poses a risk to the safety of children. Apart from the subject disqualifying offences, there are no other offences or charges on the applicant’s record.

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

51. Affray and similar public altercations would have an extremely effect on the impact on children.

52. However, we accept the applicant’s evidence that the likelihood of him repeating the disqualifying offence is low due to the time which has elapsed, he has not further offended, he has maintained stable employment and is no longer associated with bikie gangs. We also have taken into consideration that he has been in stable relationships since his offending.

53. We conclude that the likelihood of repetition concerning the applicant his low.

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

54. 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

55. We adopt the submissions as set out by the respondent as follows:

‘The applicant’s partner, YY, is authorised by Family and Community Services (‘FAC’) as a relative/kinship carer pursuant to the Children and Young Persons (Care and Protection) Act 1998 (‘the Care Act’).

On 20 June 2019, the two young persons under the parental responsibility of the Minister for Families, Communities and Disability Services (‘the Minister’) was placed under the care of YY.

In the Affidavit affirmed by the applicant on 22 January 2021, he provides evidence that due to a lack of a clearance, YY rented a house for her and the children to reside. However, the care placement ended in September 2019 due to the expiration of the lease on the property.

In June 2020, the applicant and YY were again contacted by the organisation charged with arranging care arrangements for the children to come back into their care as one child was unhappy with her current care arrangements.

The applicant has provided evidence that he has undertaken counselling with his partner YY since February 2020. The applicant and his partner have attended 9 sessions together with a further 2 sessions with the applicant.

The applicant provided evidence that he has a 35 year old son, 28 year old stepdaughter and a 29 year old stepdaughter, who he has raised from 12 years of age. The Department of Communities and Justice has conducted a search of its database and has not located any relevant records relating to the applicant in the context of any concerns relating to children.’

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

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

Any other matters that the Children’s Guardian considers necessary

57. The Children’s Guardian sets out that the applicant does not have any Apprehended Violence Orders recorded against him.

58. NSW Police does not hold any ‘COPS’ records that refer to the applicant in the context of violence, child abuse or sexual offences.

Consideration of the section 30(1A) matters

59. The respondent makes the following submission in respect of section 30(1A)(a) of the Act:

‘A person would allow his or her child to have direct contact with the applicant which was not directly supervised by another person while the applicant was engaging in child work.

The reasonable person would be taken to have knowledge of the applicant’s offending and the time that has elapsed since his offending.

The applicant has submitted two character references from individuals who are aware of his offending. Both references disclose no concern with allowing the applicant have [sic] contact with children.’

60. We accept the submissions of the respondent.

61. In respect of section 30(1A)(b) of the Act, the respondent makes the following submission:

‘Pursuant to s10(a) of the Act, an adult person who resides on the same property as an authorised carer must have a clearance or a current application for a clearance. The respondent submits that, in circumstances where the applicant does not pose a risk to the safety of children, it is in the public interest for the applicant to be granted a clearance in order for his partner to continue to be a kinship carer for children in the care of the Minister.’

62. We accept these submissions.

Consideration of the facts and determination

63. At the time in which the disqualifying offences occurred the applicant was 26 years of age. He is now approximately 63 years of age. There is no evidence that the applicant has come to the attention of the police or other authorities since the time of the disqualifying offence.

64. We accept the applicant has provided a truthful and full explanation of his offending. We accept evidence concerning the circumstances in which the offending conduct occurred, particularly, the applicant arrived after the event and did not participate in the violence.

65. 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.

66. 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.

67. 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.

68. 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:

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.

69. We accept and have taken into consideration the evidence of the applicant and his partner [XX] which is set out above. We have considered the facts which relate to the disqualifying offence. In having this and other 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.

70. 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.

71. We find nothing contrary to the notion of the public interest in granting a WWCCC. We find that the applicant being able to be live in a household with children in care is certainly in the public interest. Such activity would not pose an unjustified risk to the safety of children.

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

The order of the Tribunal is that:

1. The time to bring the application is extended to 29 July 2021.

2. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the requirement of a hearing is dispensed with. The matter is to be determined on the papers.

1. 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) in respect of the offence of Manslaughter (7 counts) under s 18 of the Crimes Act 1900 entered on 26 June 1987 at the Supreme Court of New South Wales at Sydney.

2. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) dated 29 July 2021 is granted.

3. The Children’s Guardian is to grant a working with children check clearance to the applicant pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW) forthwith.

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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: 24 February 2022