FCM v Children's Guardian

[2023] NSWCATAD 35

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FCM v Children’s Guardian [2023] NSWCATAD 35

Hearing dates:

30 May 2022

Date of orders:

10 February 2023

Decision date:

10 February 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Rogers, Senior Member
Emeritus Prof P Foreman AM, General Member

Decision:

(1) The decision of the Children’s Guardian dated 26 August 2021 to refuse to grant FCM a Working with Children Check Clearance is set aside.

(2) In substitution for that decision, the following decision is made: The Applicant is granted a Working with Children Check Clearance.

Catchwords:

ADMINISTRATIVE REVIEW – review under section 27 Child Protection (Working with Children) Act 2012 - Working with Children Check Clearance – Applicant found not guilty in criminal trial and other criminal charges not proceeded with - whether Applicant poses threat to safety of children

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Commission for Children and Young People v V [2002] NSWSC 949

Commissioner for Children and Young People v FZ [2011] NSWCA111

CXZ v Children’s Guardian [2020] NSWCA 338

DAI v Children’s Guardian [2017] NSWCATAD 308

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

M v M [1988] HCA 68

McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] VR 521 at [530]

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85

Sullivan v Civil Aviation Authority (2014) [2014] FCAFC 93

Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FCM (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
A Chhabra & Dr T Waterhouse (Applicant)
A Douglas-Baker (Respondent)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2021/00247266

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any persons mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. This case is about a decision made by the Children’s Guardian on 26 August 2021 to refuse to grant FCM a Working with Children Check Clearance.

2. The Children’s Guardian refused the Working with Children Check Clearance as the Children’s Guardian was satisfied that FCM posed a risk to the safety of children.

3. This Tribunal reviewed the decision and decided, on the evidence before us, that the correct and preferable decision was to set aside the revocation decision and, in substitution, to grant the Working with Children Check Clearance.

Content warning

4. The reader should be aware that this document contains descriptions of alleged instances of child sexual abuse.

Background

5. The Applicant in these proceedings is referred to by the pseudonym ‘FCM’ because a non-publication order has been made, as is the usual practice of the Tribunal.

The decisions of the Children’s Guardian to cancel and then refuse a WWCC

6. FCM is 35 years of age. He was the subject of a number of allegations of historical sexual misconduct. The incidents were alleged to have occurred when FCM was between eleven and eighteen years old and the alleged victims were five to twelve years old.

7. FCM was charged with twelve sexual offences on 12 June 2018 and on 19 June 2018 the Children’s Guardian cancelled FCM’s Working with Children Check Clearance on the basis that he was now a ‘disqualified person’, as is required by subsection 23(1) of the Child Protection (Working with Children)Act 2012.

8. Eleven of the twelve charges were ultimately withdrawn. The eleven withdrawn charges were for the following offences:

• Indecent assault – victim under the age of 10 years (three counts)

• Sexual intercourse with a person under the age of 10 years (two counts)

• Aggravated indecent assault – victim under the age of 16 years (five counts)

• Aggravated sexual assault – victim under the age of 16 years (one count)

9. The reason some of those charges did not proceed to trial was that the Office of the Director of Public Prosecutions decided that there was insufficient evidence to rebut the presumption of doli incapax, a common law presumption that a child between 10 and 14 years of age does not possess the necessary knowledge to form criminal intent. Apart from proving the usual elements of an offence, in criminal cases involving children between 10 and 14 years of age, the prosecution must also call evidence to rebut the presumption of doli incapax and prove that the accused knew what he or she did was seriously wrong not just naughty.

10. The remaining charge that went to trial was a charge under section 66C(1) of the Crimes Act 1900 of sexual intercourse with a person above the age of ten years and under the age of 14 years. On 2 March 2020, a jury reached a verdict of not guilty in those proceedings.

11. Following the not guilty verdict, FCM re-applied for a Working with Children Check Clearance on 15 October 2020, as he was no longer a disqualified person.

12. The Children’s Guardian conducted a risk assessment as is required by the Child Protection (Working with Children)Act 2012 because FCM was the subject of charges which triggered an assessment requirement. The fact that FCM had been charged, but not convicted, of charges which fell into clause 1 of Schedule 2 of the Child Protection (Working with Children)Act 2012 triggered the assessment requirement: refer to sections 14 and subclause 1(1) of Schedule 1 of the Child Protection (Working with Children)Act 2012.

13. On 26 August 2021 the Children’s Guardian decided to refuse FCM’s application for a Working with Children Check Clearance on the basis that the Children’s Guardian was satisfied that FCM posed a risk to the safety of children.

FCM’s application for review to this Tribunal

14. On 30 August 2022, FCM lodged an application for review with the Tribunal. The right of review arises from section 27(1) of the Child Protection (Working with Children) Act 2012. FCM made his application within time, some four days after the decision of the Children’s Guardian to refuse to grant him a Working with Children Check Clearance.

Non-publication order that applies

15. On 23 September 2021 the Tribunal, differently constituted, made an order under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the publication or broadcast of the name of any persons mentioned in these proceedings or referred to in the documentary material lodged in these proceedings, except for expert witnesses and officers of government agencies.

16. It should be noted that in this context, a reference to the name of a person includes any information, picture or other material that identifies, or is likely to lead to the identification of, the person: section 64(4) of the Civil and Administrative Tribunal Act 2013

Relevant legislation and the role of the Tribunal

17. The object of the Child Protection (Working with Children) Act 2012 is stated in section 3 as:

…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.

18. The paramount consideration in the operation of the Act is “The safety, welfare and well-being of children and, in particular, protecting them from child abuse”: section 4 of the Child Protection (Working with Children) Act 2013.

19. It is important to understand that a criminal trial and decisions made by the Children’s Guardian to grant or refuse applications for Working with Children Checks are entirely separate processes and they operate differently and serve a different purpose. Also, the administrative review jurisdiction of the Tribunal is protective not punitive in nature: for example, refer to Commissioner for Children and Young People v FZ [2011] N SWCA 111, per Young JA at [61].

20. The Tribunal’s jurisdiction under section 27(1) of the Act to review a decision of the Children’s Guardian to refuse a Working with Children Check Clearance is exercised under the Administrative Decisions Review Act 1997. When conducting an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: refer to section 63 of the Administrative Decisions Review Act 1997. The Tribunal is not confined to only considering the material that was before the Children’s Guardian at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

21. The Tribunal is to approach the issue of whether the Working with Children Check should be granted to FCM afresh, without any presumption as to the correctness of the decision under review: see McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] VR 521 at [530].

22. The key issue for consideration in the review is whether, on the evidence, the Tribunal is satisfied that FCM poses a risk to the safety of children. If the Tribunal is so satisfied, then it should affirm the decision to refuse the Working with Children Check Clearance.

23. The concept of “risk” to the safety of children has been considered by the Supreme Court in Commission forChildren and Young People v V [2002] NSWSC 949 where the Court stated that 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” and that this would exclude “fanciful or theoretical risks”: at [42].

24. In carrying out the review, the Tribunal must have regard to the mandatory considerations set out in section 30 of the Act, which are:

(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 criminal history and the conduct of the person since the matters 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.

25. Section 30(1A) of the Act states that the Tribunal cannot make an order which has the effect of enabling an Applicant to work with children 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.

The hearing

Initial position of the Children’s Guardian

26. The Children’s Guardian started the hearing in a neutral position, that is neither opposing nor supporting the application. Ms Douglas-Baker, counsel for the Children’s Guardian, pointed out that only one set of allegations had been tested, that is, the one charge that proceeded to trial. She said that there may be difficulties for the Tribunal in reaching positive findings of fact about the other allegations that had not been so tested. She also acknowledged that FCM denied the allegations in his police interview.

Evidence of FCM

27. FCM denied the allegations made about him. He said that in 2009 both he and his sister complained to their mother that they had been sexually abused by their step-father that their mother “sided” with their step-father. FCM was estranged from his mother until 2016.

Allegations made by FCM’s half-sister

28. Ms Douglas-Baker took FCM through the specific allegations made about him by his half-sister. His half-sister made a statement to Police on 22 December 2016. In that statement, she alleged that:

1. In around 1999 when she was about 5 years old and FCM was about 11 years old:

1. FCM pressed his foot against her vagina and jabbed her there with his toes.

2. FCM put his hand under her undies and rubbed the outside of her vagina with his hand for about ten minutes.

3. FCM was much bigger and stronger than her and had “always been violent towards [her] and [two siblings] for as long as [she] could remember” and that he had hit her with wire coat hangers and “chock [sic] slam all of his [sic] on the concrete outside”

4. In the past when she spoke to FCM about him hurting her, he would grab her by the throat or the back of the neck and threaten to hurt her if she told their mother

2. In 2000 when she was about 6 years old (and FCM was 12 years old) she saw:

1. FCM was on top of his half-brother, both were face down under a doona, and that FCM thrusting into the back of his half-brother repeatedly

3. In October 2001 when she was 7 years old (and FCM was 13 years old):

1. FCM tried to kiss her on the mouth

2. FCM lay next to her and put his hand under her undies and on her vagina and tried to rub her vagina up and down. His penis was erect and against her thigh and pushed against her leg. He then penetrated her vagina with one of his fingers.

4. About three weeks after the incident at (3) above:

1. FCM rubbed between her legs and thighs when they were in the pool in the backyard and put his hand under her swimmers and put his fingers over her vagina and started to rub the outside of her vagina again

2. When she stood to get out of the pool, FCM grabbed her by the throat at “choke slammed” her into the ground and she was winded by the impact

5. When she was twelve years old in November 2006 and FCM was about 18 years old and had moved out of home:

1. During a visit to FCM’s place, she felt his erection against her bottom, he kissed her face, took her pants and underwear off, climbed on top of her and forced his penis into her vagina and started to “hump” her. This continued for about seven minutes until he removed his penis and ejaculated into a blanket.

29. FCM specifically denied each of the allegations made by his half-sister when each was put to him in cross-examination, saying that these events simply did not happen.

30. When asked by Ms Douglas-Baker whether he had been violent in the family home, FCM said that he had not been violent, but that there had been the usual sibling arguments and verbal fights. He said there had been some physical fighting with his half-brother when they were older. He said he did wrestle with his half-sister and would “choke slam” other children when wrestling on the bed, a wrestling move the children had seen on TV. He would hit his half-sister with a coat hanger but not necessarily to hurt her. It was part of a game.

31. The allegation at [28(5)] above gave rise to the charge of sexual intercourse with a person above the age of ten years and under the age of 14 years. This charge went to trial in February 2020 and resulted in a not guilty verdict.

32. In her 22 December 2016 statement to Police, FCM’s half-sister stated that in January 2013 she disclosed to her then girlfriend that FCM had sexually assaulted her. She said that she also told a friend in 2013 that FCM sexually assaulted her. She said that her friend told her own (the friend’s) mother. FCM’s half-sister said that she then went with her friend and friend’s mother to her mother’s house and told her mother that FCM used to “touch” her.

Allegations made by a friend of FCM’s sister

33. Ms Douglas-Baker took FCM through the allegations made about him by a friend of his sister. The friend made a statement to Police and alleged that:

1. in around 2002 when she was about age 11 years old and FCM was about 14 years old:

1. FCM rubbed the side of her buttocks.

2. On another occasion FCM put his hand up her leg and touched her vagina. The friend told the sister shortly after, and the sister laughed and asked her how it felt.

3. On another occasion, FCM moved his hand up her thigh and into her vagina area and she pushed his hand away. FCM then put his hand on her chest and squeezed her breast. The sister was present and was laughing, telling her friend to “let [FCM] do it” and told the friend she “would like it”. FCM’s sister remained present and was laughing when FCM then started to move his hand back towards the friend’s vagina and started to rub her vagina through her pants.

34. Again, FCM denied each of these specific allegations when they were put to him under cross-examination.

Charges laid against FCM’s step-father

35. In 2018, FCM’s step-father was convicted of more than 30 historical sexual offences against multiple child victims, all of whom were family members. FCM was one of those victims and the offences against him occurred when he was between the ages of 8 and 14 years of age.

36. FCM said told the Tribunal that the allegations against him were made when his step-father’s case started. He said that he received a text message from his half-brother saying that his step-father is in jail and “you’re next”.

Evidence of FCM’s sister

37. FCM’s sister gave sworn evidence. FCM’s sister is the same person referred to at [27] and whose childhood friend made the allegations against FCM (refer to [33]). She said she did not ever observe FCM touching her friend inappropriately, including by squeezing her breasts or touching her thigh and vagina or rubbing her friend’s vagina through her clothing. She also denied observing any such conduct and laughing at it or saying to her friend to let FCM do it and she would enjoy it.

38. FCM’s sister said that FCM would hug her friend. She said he hugged everyone. It was not anything she saw as sexual.

39. FCM’s sister told the Tribunal that in 2009 she and FCM complained about their step-father abusing them and that their mother sided with their step-father. She said she was estranged from her mother from 2009.

40. Ms Douglas-Baker asked FCM’s sister if FCM had been violent. The sister said he was a “bully” and that he would hit the other children and “take it too far”. She said he was like that as a child but was not like that anymore. She said that behaviour ceased when he moved out of home at 17 or 18 years of age. She agreed that he would hit other children in the family home with a coat hanger and that they would wrestle together. She said she never saw FCM choke slam his half-sister into concrete or grab her by the throat or back of the neck. She denied ever being told by FCM he would hurt her if she told about FCM’s alleged abuse. She said that he had never grabbed her by the throat but had choke slammed her. When asked whether FCM had kissed his half-sister on the mouth she said it was more a brother/sister “peck” and not sexual.

41. FCM’s sister said that she had little contact with her friend after year 7 or 8. She said that her friend had never spoken to her about the allegations.

37. In her written statement, FCM’s sister explained that she brings her three children to visit FCM a few times per week. Her children are between the ages of 6 and 14 years. She has FCM babysit the children when she goes out and is comfortable leaving her children with FCM. Her children also have sleepovers at FCM’s house, especially her son, and that this occurs about once per month.

38. FCM’s sister also states that FCM’s aunts and uncles are all happy to have their children to stay with FCM.

Other material relied on by the parties

Allegations made by FCM’s step-cousin

44. A third set of allegations against FCM was made by his step-cousin. The step-cousin alleged that when he was almost 7 years old, FCM showed his step-cousin and step-brother animal pornography on the computer and they laughed at it. He then alleged FCM rubbed his stomach and groin on the boys’ buttocks. The step-cousin alleged that on another occasion FCM asked the step-cousin to perform oral sex on him (FCM) and the step-cousin did so, and that FCM also performed oral sex on his step-cousin. He also alleged that FCM put his penis in his step-cousin’s anus.

Report to FaCS alleging sexual abuse of partner’s brother

45. There is also a report made to the Family and Community Services (child protection) alleging that FCM had sexually abused his partner’s 12-year-old brother. When interviewed by Joint Investigation Response Team (JIRT) FCM’s partner’s brother disclosed that someone else had told him false allegations to write in his journal to show Police and he did this under duress.

Other evidence

46. FCM’s statement attached the transcript of his ERISP interview with Police. In that interview he denied all the allegations.

47. FCM explained in his written statement in these proceedings that he has been married to his wife for two years and they had been together for more than 14 years. They have three children.

48. FCM said that, as a survivor of child sexual abuse himself, he could never consider perpetrating something like that on others. He said that sexual assault “lives with you forever”.

49. FCM stated that he avoids close physical contact with family members of all ages because of what he went though and hugs family members by leaning towards them to avoid close body contact.

50. FCM stated that prior to being charged, he worked as a cleaner at a kids’ school camp. He was surrounded by 500 children as he worked.

51. FCM relied on character references from two cousins, the wife of a cousin, an aunt, his mother-in-law and his case manager at his job search agency. The references do not specifically refer to the allegations made against FCM. The referees describe FCM as a family man and honest and hard-working, and refer to the fact that he attends his local church. FCM told the Tribunal in oral evidence that he and a church friend have engaged in volunteer work by feeding the homeless.

52. The wife of FCM’s cousin states in her reference that gaining employment would offer FCM a greater sense of purpose and allow him to provide for his family and assist him to contribute to the greater community. FCM’s mother-in-law provides a glowing reference, stating her view that he had been “wrongly done by, by his family” and that she supports him “for the love he has in his heart and his ongoing commitment to better himself in life for his partner & children.”

53. The reference from his case manager at a job search provider states that FCM had secured a job as a cleaner but the job required a Working with Children Check Clearance. FCM said that he requires a Working with Children Check Clearance to get cleaning work. He said that his wife was working long shifts as an aged care nurse and that was their sole source of income.

54. FCM also provided references from the counsellor he saw in 2018 and 2019 and also his GP. It is clear from the counsellor’s reference that FCM had disclosed that allegations had been made against him. The counsellor states in the reference that “nothing raised an alarm” when he was seeing FCM as a client. The GP refers to accusations of “?inappropriate physical contact with kids in his family”.

55. FCM agreed that he had been taking anti-depressants and stated that he ceased taking this medication after his criminal trial concluded. He also agreed that he saw a counsellor, but had ceased those sessions. He said he did not find it was much help.

56. When asked about his attitude to child abuse, FCM responded by saying if you see abuse or if you are told about child abuse, it should be reported instantly to the Police and to the school or where he was working.

‘COPS’ records of physical violence in the family home

57. The Children’s Guardian produced material obtained from Police which was derived from the NSW Police Force Computerised Operations Policing System (‘COPS’) about FCM. These records show that between December 2004 and July 2006, when FCM was 17 to 18 years of age, Police were called to the family home seven times. It is not clear whether those referred to in the Police records are in fact half-brothers or half-sisters, they are merely referred to as brother and sister, but as these siblings are 11-12 years old it is likely that those persons referred to in the COPS Event records were in fact FCM’s half-sister and half-brother. The COPS Event records record that:

1. FCM and his brother wrestled and the brother sustained a bleeding nose from a possible bump on the ground whilst wrestling. No one wished to make a complaint to Police and there were no visible injuries.

2. FCM’s sister punched him in the face and FCM responded by slapping her across the back of the head. FCM kicked at the kitchen cupboard and he head butted the wall. The Police formed the view that both were at fault. There were no visible injuries or damage to property.

3. FCM pulled his brother outside after he began arguing with his sister. Police concluded both were to blame and stated no offences were detected and there were no visible injuries.

4. FCM and his brother became involved in a “physical altercation”. No further Police action was taken.

5. FCM and his brother were fighting and FCM hit his brother. FCM stated to Police that his brother was trying to hit a younger sister. No injuries were sustained.

6. FCM’s brother argued with his mother and physically struggled with her. FCM stepped in and punched his brother several times to the back. Further punches were thrown but it is unclear whether by FCM or his brother. No charges were laid.

7. Following a verbal argument, FCM kicked the back door, damaging the hinges. FCM agreed to pay for the damage.

Report by woman in a car

58. There is also a further incident recorded in the COPS records. On 26 October 2005 the records state that there was an incident where threats were made to a woman seated in a car waiting for her children to finish school. The allegation is that two young males said words to the effect of “Watch out ya bitch will [we’ll] tie you up and you can watch you daughters get raped. We will also rap [rape] you, you bitch.” However, the woman could not see above the waists of the boys and could not be sure the boys made the statements.

One driving offence and no AVOs

59. The only other matter recorded on FCM’s criminal history is a driving offence in 2010 for which FCM received a $400 fine.

60. The material the Children’s Guardian obtained from Police shows that FCM has never been the subject of an Apprehended Violence Order.

Timing of the reports to Police and witnesses refuse to give or retract statements

61. FCM’s half-sister explained in her statement to Police that she was at court on 22 December 2016 for her step-father’s criminal case and after that she texted her brother and the same day made her statement to Police making allegations about FCM.

62. The transcript of FCM’s criminal trial shows the evidence FCM’s half-sister’s ex-girlfriend at the trial. The ex-girlfriend agreed that she made the statement to Police about FCM on 22 December 2016, the day after FCM’s step-father was arrested. The transcript also records the half-sister’s girlfriend recanting aspects of her statement to Police. She told the District Court that the allegations were concocted by FCM’s mother and half-sister as payback for FCM’s step-father being in jail.

63. The officer in charge of the investigation gave evidence at the criminal trial that FCM’s mother and also his half-sister’s friend, to whom she said she had disclosed the abuse in 2013, both refused to give a statement to Police in respect of the matter and was not willing to come to court.

Respondent’s submissions

64. At the close of the hearing before the Tribunal, Ms Douglas-Baker said that the Children’s Guardian remained neutral in its position, neither supporting nor opposing the application for review. She said that it was open to the Tribunal to find the allegations made by FCM’s half-sister were true or, in the alternative, if we could not find they were true, to consider FCM’s half-sister’s statement and oral evidence at the criminal trial in order to form a view about whether FCM is a risk to children.

65. Ms Douglas-Baker referred to the fact that FCM’s half-sister made no contemporaneous complaint about the alleged abuse. We do not view that as a factor that would necessarily, of itself, lead us to doubt the veracity of such a report.

66. Ms Douglas-Baker referred to certain text messages between FCM’s half-sister and half-brother in which FCM’s half-sister said her brother (FCM’s half-brother) had disclosed he was also sexually abused by FCM. She explained that any such text message is not evident from the text messages that were provided to Police.

67. FCM’s half-sister’s ex-girlfriend (‘girlfriend’) gave a statement to Police that she saw the text about alleged abuse by FCM of his step-brother. However, Ms Douglas-Baker stated that there were problems with the girlfriend’s evidence as she recanted much of her evidence at trial, saying that FCM’s half-sister was motivated by money and that she had never said to her that FCM touched her inappropriately or raped her or hit her with coat hangers. The girlfriend gave evidence at the criminal trial that the message from FCM’s half-brother to FCM’s half-sister was concocted so that FCM’s half-sister had the evidence to take to Police.

68. Ms Douglas-Baker pointed to the evidence of FCM’s sister, who said FCM was a bully and went too far, but that this stopped when he left home. Ms Douglas-Baker submitted that FCM had no violent history as an adult. She said there was no other criminal or Apprehended Violence Order history.

69. Ms Douglas-Baker acknowledged that the complaint made to Police by FCM’s half-sister in 2016 occurred in the context of allegations made in respect of FCM’s step-father. She noted that despite FCM’s half-sister stating that she told another friend and her girlfriend in 2013 about the alleged sexual abuse by FCM, the friend and the friend’s mother declined to assist Police. Ms Douglas-Baker said of the two groups who were told of the alleged abuse by the half-sister, one declined to assist the Police, and the other falsely made a statement.

70. Ms Douglas-Baker did not cross-examine FCM about the allegations made about his step-cousin and she conceded that this was a FaCS matter and the evidence would suggest that the allegation was false.

71. Ms Douglas-Baker submitted that the Tribunal was duly bound to consider the allegations made by FCM’s half-sister. The alleged instances of abuse against FCM’s sister’s friend and half-sister occurred when FCM was a minor and Ms Douglas-Baker noted that these charges were not proceeded with or did not overcome doli incapax.

72. Ms Douglas-Baker submitted that there was evidence of a broader family context of abuse, including where the applicant himself was a victim. She said that there was dysfunction in the family when the applicant was a child.

73. Ms Douglas-Baker referred to an entry in the records obtained by the Children’s Guardian from the Family and Community Services (child protection) where a person made a report in May 2009 raising concerns about FCM’s baby son and the capacity of FCM and his partner to provide for their son financially, their lack of stable housing and their ability to establish a routine for their baby. Ms Douglas-Baker submitted that this record raised no question of risk.

74. Ms Douglas-Baker acknowledged that FCM has a stable family environment and wishes to provide for his family. She said that FCM received assistance from his GP and took anti-depressants for a period of time and that he had seen a counsellor. She acknowledged that FCM had the support of his wife and church community and that he had undertaken voluntary work with the homeless.

75. Ms Douglas-Baker also pointed out that when asked what he would do if faced with a disclosure by a child of sexual abuse, FCM said he would report it immediately to Police and also directly to relevant persons depending on the context, such as the management of a school. In his re-application for a Working with Children Check Clearance in November 2020 FCM said “you see something say something”.

76. Ms Douglas-Baker referred to the public interest and reasonable person tests in the legislation and said that FCM’s sister has no difficulty having her children interact with FCM. She submitted that there is a public interest that FCM be able to work and support his family and to relieve his wife of financial responsibility. Despite this, she said that that the protection of children is overriding consideration for the Tribunal.

Applicant’s submissions

77. Mr Chhabra, co-counsel for FCM, submitted that there were real issues about credibility of the half-sister’s allegations against his client. He said that FCM’s half-sister had motivation to lie, because of FCM’s step-father’s loss of liberty. He pointed out that two witnesses declined to provide statements and the half-sister’s ex-girlfriend concocted a complaint against FCM. He also said that there were some “difficulties” with the half-sister’s account and that is “fell apart” at trial.

78. In relation to the allegations by the friend of FCM’s sister, Mr Chhabra submitted that these allegations are untested and should therefore be accorded limited weight. FCM denied the allegations in a police interview and in his written statement and under cross-examination in these proceedings. The friend claimed that FCM’s sister was in the room and an eyewitness to the alleged touching, but FCM’s sister gave evidence that these incidents did not occur.

79. Mr Chhabra pointed out that the incidents involving the sister’s friend were alleged to have occurred in 2002 when FCM was 14, and doli incapax would not arise, and yet the Police still decided not to proceed.

80. Mr Chhabra explained that the allegations made by FCM’s step-cousin were also denied by FCM in his interview with Police and that the allegations were untested and should therefore be accorded little weight.

81. Mr Chhabra said that FCM had sought professional intervention for mental health concerns and that he came from a dysfunctional background. He said FCM was involved in his church and voluntary work. He is a full-time parent of three children and often has the care of his sister’s children.

82. Mr Chhabra submitted that the Tribunal cannot make a positive finding of fact that the instances of alleged abuse occurred but also that the Tribunal cannot be satisfied that his client poses a real and appreciable risk to children.

83. As to the other aspects of section 30(1A) of the Child Protection (Working with Children) Act 2013, Mr Chhabra submitted that a reasonable person, appraised of all the facts, evidence and circumstances would allow his or her child to have direct unsupervised contact with FCM.

84. Mr Chhabra also submitted that it is in the public interest that FCM should be able to work.

Consideration

How does the Tribunal go about assessing the evidence to determine risk?

85. This case involved many allegations of abuse. There is a series of cases that set out how the Tribunal is to perform the task of assessing the evidence to determine the question of whether we are satisfied that FCM poses a risk to the safety of children.

86. The Tribunal is not bound by the rules of evidence and neither party has an onus of proof, let alone required to establish facts to any particular standard of proof: see section 38(2) of the Civil and Administrative Tribunal Act 2013 and Sullivan v Civil Aviation Authority (2014) [2014] FCAFC 93 (‘Sullivan’) at [115]. What the Tribunal must do is consider all relevant material and base our findings of fact on material that is logically probative and not based on “mere suspicion or speculation”: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 at [24].

87. As contemplated by the High Court decision of M v M [1988] HCA 68, there might be some allegations that a Tribunal might dismiss as groundless. We consider the allegations that FCM had sexually abused his partner’s 12-year-old brother as groundless. The report made to FaCS was made by a third party and when interviewed by Joint Investigation Response Team (JIRT) FCM’s partner’s brother said he had been told what to write in a journal about being abused and said it was, in fact, untrue.

88. We also exclude the report made by the woman in the car on 26 October 2005 concerning threats she said were made, but where she could not identify who made the statements.

89. Ms Douglas-Baker referred to text messages between FCM’s half-sister and half-brother which also contained allegations that FCM also abused his half-brother, but stated that this is not evident from the text messages that were provided to Police. We find that the alleged text from FCM’s half-brother to FCM’s half-sister alleging that he too was the subject of sexual abuse was inherently unreliable. We agree with the Respondent’s submission that this allegation is not supported by the documentary evidence as the allegation is not contained in the text messages that were produced to Police. We also excluded this allegation from our consideration as we are not satisfied that such a text was sent or that any such abuse occurred.

90. In relation to the violence in the family home, the Respondent did not emphasise this evidence in closing submissions. Some of the incidents were brother against brother, with both at fault. We do find that physical altercations in the family occurred and that at times FCM physically assaulted his siblings, especially his brother. We note that Police found there were no visible injuries sustained and no charges were laid. We view these incidents as part of the family dysfunction at the time and they occurred sometimes in response to arguments or assaults on FCM. We are satisfied that FCM’s physical violence was specific to this family context and there is no evidence that FCM has engaged in any such behaviour since he left home.

91. We note that FCM’s sister described him as a “bully” when he was a child, but she said that he was not like that anymore. She said that behaviour ceased when FCM moved out of home at 17 or 18 years of age. FCM acknowledged that there was some physical fighting with his half-brother when they were older. We view this concession as something that added to FCM’s credibility.

92. We considered how to approach to the allegations made by FCM’s half-sister, friend of his sister, and step-cousin.

93. We are not required to apply or to refer to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336, which stated that a fact-finder should consider the seriousness of an allegation, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequence of a particular finding, in determining whether an issue has been proved to the reasonable satisfaction of the fact-finder. The Court said that level of satisfaction should not be reached “inexact proofs, indefinite testimony, or indirect inferences” (per Dixon J at 361 to 362).

85. However, we can have regard to those principles. We can consider the gravity of the allegations and the gravity of the consequences that might flow from a particular factual finding or decision: Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [44].

86. We note the comments of the Federal Court in Sullivan (at [120] per Flick and Perry JJ):

The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any cross-examination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the Tribunal and thereafter this Court on “appeal”.

96. With this in mind, we assessed the evidence concerning the allegations of sexual misconduct made by FCM’s half-sister, friend of FCM’s sister and FCM’s step-cousin. We cannot be positively satisfied on the evidence before us that these events in fact occurred. The reason is that there are competing accounts as to what happened and allegations of “payback” and the concoction of evidence. The half-sister’s allegations were refuted by her ex-girlfriend in the criminal trial. The half-sister says she told a friend and friend’s mother about the alleged abuse, but they refused to make a statement or co-operate with Police. The half-sister also said she disclosed the abuse to FCM’s mother, but she also did not provide a statement.

97. A further inconsistency is that FCM’s half-sister said in evidence in the criminal trial that she told FCM’s sister that FCM raped her when she was younger. FCM’s sister gave contrary evidence in these proceedings, to the effect that FCM did not do these things to his half-sister.

98. The allegations made by a friend of FCM’s sister are contradicted by the evidence of FCM’s sister, who denies that she was told about or witnessed the incidents her friend said occurred.

99. Ms Douglas-Baker did not cross-examine FCM about the allegations made by the step-cousin.

100. The allegations that FCM perpetrated sexual offences against these three people are very serious. The consequences are serious if we were to make findings of fact about these incidents. The factual foundations for making any such findings are shaky and lacking strength.

101. FCM denied the allegations of his half-sister, sister’s friend and step cousin in his Police interview, in his written statement and also his oral evidence and his evidence was tested under cross-examination.

102. Despite not reaching a level of reasonable satisfaction that would cause us to make findings of fact that any of these allegations were true, we must take the allegations into account and apply the section 30 considerations in order to determine the question of whether FCM poses a risk to the safety of children. As McCallum JA said in CXZ v Children’s Guardian [2020] NSWCA 338 at [57]:

“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.”

103. The paramount consideration as we undertake this task is the safety, welfare and well-being of children and, in particular, protecting them from child abuse (section 4 Child Protection (Working with Children) Act 2012). As McCallum JA recognised, this might mean in some cases a person entirely innocent of any allegations might be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation, and this leaves open sufficient possibility that the risk exists: CXZ v Children’s Guardian [2020] NSWCA 338 at [58].

Application of the section 30(1) mandatory considerations

(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

104. The matters which caused the imposition of an interim bar and refusal of the clearance include four dismissed charges for which there are multiple counts:

• Aggravated indecent assault - victim under 16 years (five counts)

• Indecent assault – victim under the age of 10 years (3 counts)

• Sexual intercourse with a person under the age of 10 years (2 counts)

• Aggravated sexual assault – victim under the age of 16 years (1 count)

105. Also included is the charge for which FCM was found not guilty: sexual intercourse with a person 10 years or over and under 14 years.

106. These allegations are very serious and include the allegations of sexual assaults on young children. There are three alleged victims who were members of the Applicant’s family or friends. Some of the accounts state that the abuse occurred in the presence of other children.

107. The matters raised in the COPS records about alleged physical violence in the family home was not considered by the Children’s Guardian in conducting the risk assessment.

108. FCM denied the allegations in his police interview on 12 June 2018. He also denied the allegations under oath in these proceedings and was cross-examined by Ms Douglas-Baker in respect of the allegations made by FCM’s half-sister and the friend of FCM’s sister.

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

109. The last of the alleged offences occurred when FCM was 17 and 18 years of age, that is in 2005 or 2006. A period of approximately 16 years has since passed. Since that time FCM has only been convicted of a driving offence in 2010. FCM is now 35 years of age.

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

110. FCM was between the ages of approximately 11 years old to 18 years old at the time of the alleged conduct.

(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

111. FCM’s half-sister was approximately 5 to 7 years old and 12 years old. The friend of FCM’s sister was 11 years old. FCM’s step-cousin was 6 years old. These alleged victims were younger than FCM.

112. We consider that the children aged 5 to 7 years are particularly vulnerable, given that they are at an early developmental stage.

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

113. FCM was between three and six years older than the alleged victims. In most instances, other than in respect of the friend of his sister, the age difference was six years.

114. FCM was a family member of the alleged victims or the alleged victim was a visitor to his home as friend of a sibling.

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

115. FCM knew that the alleged victims were children.

(g)  the person’s present age

116. FCM is now 35 years of age.

(h)  the seriousness of the person’s criminal history and the conduct of the person since the matters occurred

117. FCM’s criminal history is as outlined in these reasons for decision, namely the not guilty verdict in respect of the offence of sexual intercourse with a person above the age of ten year and under the age of 14 years as well as the other withdrawn charges:

• Indecent assault – victim under the age of 10 years (3 counts)

• Sexual intercourse with a person under the age of 10 years (2 counts)

• Aggravated indecent assault – victim under the age of 16 years (5 counts)

• Aggravated sexual assault – victim under the age of 16 years (1 count)

118. These are very serious charges, as discussed in the consideration of section 30(1)(a) above at [104]-[108]. None of these charges resulted in a criminal conviction. Eleven of the twelve charges were withdrawn. Of relevance is the decision of the Director of Public Prosecutions that there was insufficient evidence to prove to the criminal standard of proof that FCM knew what he did was seriously wrong not just naughty in respect of those charges where FCM was under 14 years old at the time.

119. The COPS records of physical violence in the family home when FCM was 17 or 18 years old does not form part of FCM’s criminal history but is part of the record about the conduct of FCM since the matters occurred. We have found that there were incidents of physical altercations, largely between FCM and his brother (or step-brother).

120. We find that FCM grew up in a broader family context of abuse, including where the applicant was a victim, and there was dysfunction in the family. We agree with the evidence that FCM was a bully, would hit the other children, and took things too far.

121. We find as a matter of fact that there were physical assaults in the family home when FCM was 17 and 18 years old, including between FCM and his 11 or 12 year-old brother.

122. We place considerable weight on the fact that since that time FCM has had no reports to Police made about him and no criminal charges or convictions, including no apprehended violence orders issued against him.

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

123. We are not satisfied that FCM will repeat any of the alleged offences or conduct. We did not reach a level of satisfaction that the incidents as alleged by FCM’s half-sister, friend of FCM’s sister or step-cousin occurred.

124. Even taking into account the possibility that the events occurred, sixteen years have passed without any further incident. FCM is in a stable relationship with his partner of 14 years and has raised three children.

125. FCM sought counselling support during a period of stress and is involved in his community by being part of a church and engaging in volunteer work.

126. Prior to being charged in 2018, FCM had worked as a cleaner at a children’s campsite amongst children, without any reported incident.

127. On the evidence before us, we believe the likelihood that FCM would engage in the conduct that is alleged to have occurred to be so unlikely that he does not pose any real or appreciable risk to the safety of children.

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

128. There is no order of a court of tribunal in force in respect of FCM.

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

129. FCM gave evidence that if he became aware about child abuse, he would report it immediately to the Police and also to the relevant organisation, such as to the management of a school where he was working.

130. FCM was himself a victim of child sexual abuse. He stated that he knows the impact of that type of abuse has, having experienced it himself.

131. FCM also provided a number of references referred to above at [51] to [54].

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

132. No such information was obtained by the Children’s Guardian.

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

133. The Children’s Guardian pointed out that FCM made an application for a National Disability Insurance Scheme Worker Clearance in about December 2021 and is currently the subject of a risk assessment under that regulatory scheme. The Children’s Guardian submits that this is a separate process and decision.

Conclusions as to the section 30(1) considerations and risk

134. After considering all the evidence and the circumstances outlined in these reasons for decision, we were not satisfied that FCM poses a risk to the safety of children.

Would a reasonable person allow his or her child to have direct unsupervised contact with FCM?

135. FCM’s sister stated that she brings her three children between the ages of 6 and 14 years of age to visit FCM a few times per week. She has FCM babysit her children when she goes out and is comfortable leaving her children with FCM. Her children also have sleepovers at FCM’s house, especially her son, and this occurs about once per month.

136. The reasonable person would need to be appraised of the allegations made against FCM and all the facts and circumstances, FCM’s criminal history, the length of time since the alleged incidents of abuse and his conduct since then and any expert assessments to be in a position to determine this question: DAI v Children’s Guardian [2017] NSWCATAD 308 at [91]).

137. We find that a reasonable person who had this information would allow their child to have direct unsupervised contact with FCM whilst he was engaged in child-related work. Despite the number of allegations made about FCM, we have determined that the factual basis for these allegations was without strength and the allegations should be discounted. A reasonable person would not approach the task with a closed mind merely because allegations had been made or because of the number of allegations made. He or she would consider the facts and circumstances and the evidence supporting those allegations to determine whether there is any basis for scepticism or reasonable caution: refer to the reasoning in DAI at [90].

138. We are satisfied that a reasonable person appraised of the particular information in this case and after weighing it up would allow his or her child to have direct unsupervised contact with FCM when he was engaged in child-related work. A reasonable person would reach a conclusion that they had no concerns in their mind about FCM because they would perceive the allegations to be without foundation.

Is it in the public interest to make the order?

139. We have found that there is no real and appreciable risk to the safety of children if FCM was to be permitted to work with children.

140. There is a public interest that FCM be able to work and support his family and contribute financially as a member of society.

Conclusion and Orders

141. For the reasons set out above, the correct and preferable decision is to set aside the decision under review and to make a decision, in substitution, that FCM be granted a Working with Children Check Clearance.

ORDERS

1. The decision of the Respondent dated 26 August 2021 to refuse to grant the Applicant a Working with Children Check Clearance is set aside.

2. In substitution, the following decision is made: the Respondent is to grant the Applicant a Working with Children Check Clearance.

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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: 10 February 2023