FDS v Children’s Guardian

[2022] NSWCATAD 374

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FDS v Children’s Guardian [2022] NSWCATAD 374

Hearing dates:

On the papers

Date of orders:

21 November 2022

Decision date:

21 November 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Bailey, Senior Member
R Royer, General Member

Decision:

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

(2) The applicant is not to be treated as a disqualified person for the offence, in respect of s.61L of the Crimes Act 1900 (NSW), for which he was convicted on 15 May 1995 .

(3)   The application for an enabling order is granted.

(4) Pursuant to s28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a Working with Children Clearance.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – disqualifying offences – enabling order – circumstances of offence – conduct of applicant in period since offences occurred – discharge of onus

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Prohibited Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8

BJB v The Children’s Guardian (No. 2) [2014] NSWCATAD 164

BKE v Children’s Guardian [2015] NSWSC 523

CHB v Children’s Guardian [2016] NSWCATAD 214

Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476

Commissioner for Children and Young People v FZ [2011] NSWCA 111

CYY v Children’s Guardian (No.2) [2017] NSWCATAD 262

PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455

R v Commission for Children and Young People [2002] NSWIRComm 101

Smith v Commissioner of Police [2014] NSWCATAD 184

ZZ v Secretary of the Department of Justice [2013] VSC 267

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FDS (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
B Madden (Respondent)

Solicitors:
Applicant (Self Represented)
Crown Solicitor’s Office (Respondent)

File Number(s):

2021/00298971

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

Introductory summary

1. The applicant in these proceedings is referred to as "FDS". FDS is the applicant's pseudonym used in these proceedings in conformity with the above order, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (the CAT Act).

2. On 21 October 2021, the applicant made an application that was drafted as an application for administrative review.

3. However, because the applicant was refused a Working with Children Check Clearance (WWCCC) on the basis that he was ‘a disqualified person’, the Tribunal has assumed and proceeded on the basis that the applicant intended to apply for an enabling order pursuant to s 28 of the Child Protection (Working with Children) Act 2012 (the Act).

4. The respondent notified the applicant that he was a disqualified person on 19 October 2021.

5. The applicant was presumed to be a risk to children because the fact that he was convicted of an offence against s 61L of the Crimes Act 1900, namely indecent assault. The applicant now seeks a finding by the Tribunal that he does not pose a risk to children.

6. The assault occurred on 18 February 1995 The applicant was working as a taxi driver and picked up a female passenger. During the journey, the passenger fell asleep in the front passenger seat. The passenger reported that she felt the applicant’s hand on her breast on three occasions.

7. The applicant has always denied committing the offence. He said that he touched the passenger’s elbow to wake her on one occasion. Nevertheless, he was convicted on 15 May 1995. The offence was undoubtedly serious. However, the victim was not a child.

8. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, including the applicant’s conduct in the intervening 27 years, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons. As a result of the finding the application for an enabling order is granted.

Publication restriction

9. The Tribunal orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons is restricted.

Background

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

3 Object of Act

The object of this Act is to protect children:

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

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

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

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

11. The applicant applied for a Working With Children Check Clearance on 8 October 2021. Subsequently, the respondent became aware that the applicant had been convicted of indecent assault and fined $500 plus court costs of $46.

12. This offence was a ‘disqualifying offence’ under the Act and the application was refused: in accordance with s 18(1)(a). The disqualifying criminal matter is as follows:

1. Indecent assault pursuant to s 61L (now repealed) of the Crimes Act 1900 (NSW)

13. This offence is one listed in Sch 2 of the Act and equates to a ‘disqualifying offence’ as defined under the Act at Sch 2 Cl 1 (1) (h) (i).

14. Consequently, on 19 October 2021, the Children's Guardian issued FDS with a Notice to Disqualified Person pursuant to s 18 of the Act. On 21 October 2021, the applicant applied to the Tribunal for the clearance. The applicant seeks a clearance to enable him to continue his self-employment as a taxi driver. He has been employed as a taxi driver or hire car driver since 1992.

15. In his application for an enabling order, the applicant wrote:

I believe that I am working Public Passenger vehicle (sic) for last 20+ years and I am dealing with children and other part )sic) of community day to day basis. I am family person and I have two children myself

16. In his supporting material, the applicant also wrote:

I can describe the incident in the taxi some 28 years ago, I have picked up this lady she was going to West Ryde during the journey she slept in my car.

When I try to wake her up by tapping her arm she claimed that I touch her breast. I was relatively new migrant at the time . Not aware of the new country’s law.

I should’ve taken her to police station. That’s a mistake I made at the time.

17. He added that, in the course of his career, he has driven many “highest ranking Australian politician (sic) and celebrities”

18. The respondent supports the application.

19. The issue to be decided by the Tribunal is whether the applicant should be granted an enabling order under s 28 of the Act.

20. In reaching this position the Tribunal is required to consider section 30(1) and (1A) and determine whether he has rebutted the presumption that he poses a risk to the safety and well-being of children. The risk must be both real and appreciable.

The working with children legislative scheme

21. The object of the Act is to protect children, by preventing disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

22. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act: s 4 of the Act.

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

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

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

18 Determination of applications for clearances

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

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

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

26. Disqualified persons do not undergo a formal assessment before the Children’s Guardian, as the Act mandates that the Children’s Guardian must not grant a clearance to such persons.

27. It is the Tribunal that must conduct an assessment of a disqualified person’s risk if an application for an enabling order is made to the Tribunal.

Jurisdiction

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

28 Orders relating to disqualified and ineligible persons

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

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

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

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

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

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

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

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

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

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

(9) (Repealed)

(Emphasis added)

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

30. Based on this finding and noting that the application was received within time, there is no dispute that the Tribunal has jurisdiction to hear the matter.

31. Section 30 sets out the factors that the Tribunal must consider in determining an application. We will address each of the matters under s 30(1) later in these reasons.

Burden of Proof

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

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

42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...

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

The Hearing

35. By way of orders made on 19 March 2022, pursuant to s50 of the CAT Act 2013, a hearing of this matter is dispensed with, and the matter is to be determined on the basis of documents submitted by the parties.

Written evidence

36. Both parties filed written material in support of the matter. In our view there is no need to detail that material other than to the extent that it is relevant to our consideration of the mandatory issues.

Applicant’s submissions

37. The applicant’s submissions are brief. From those submissions, read in conjunction with the transcript of the Local Court proceedings on 15 May 1995, the Tribunal accepts that the applicant denies touching his passenger’s breast at any time. The passenger alleged that this occurred on three occasions, on two of which she said she was still asleep.

38. The applicant admitted touching his passenger to wake her, so that he could ascertain the address to which she wanted to be taken. He said she was obviously affected by alcohol and was difficult to rouse.

39. The applicant said he now realises that he should have taken the passenger to a police station rather than touching her to wake her. He was only convicted of one of the three alleged assaults.

40. The fact that he has raised a family, and that he has driven high profile Australians for many years, were submitted as positive factors.

Respondent’s Submissions

41. The respondent’s written submissions set out the statutory framework and applicable principles. The respondent submitted that it was open to the Tribunal to make the enabling order and supported the application.

Section 30 (1) considerations

42. Section 30 of the Act sets out the following mandatory factors that the Tribunal must consider in determining an application. In this matter, because he was convicted by a Court of relevant jurisdiction, and because an appeal against the conviction was dismissed, the Tribunal accepts that the applicant committed the offence for which he was convicted.

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

43. The applicant's application to the Tribunal is brought because he was convicted of the disqualifying offence of indecent assault, when he was 27 years of age. The victim was a passenger in the applicant’s taxi.

44. Although the offence was serious, it did not involve children.

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

45. The disqualifying offence occurred in 1995.

46. The applicant has also been convicted of an offence of goods in custody. The respondent submitted, and the Tribunal accepts that this offence has no bearing on the applicant’s risk to children.

47. There is no other adverse evidence concerning the applicant’s conduct over the intervening 27 years.

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

48. The applicant was 27 years of age when the disqualifying offence 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.

49. The victim was 24 years of age when the disqualifying offence occurred. She was a passenger in the vehicle being driven by the applicant. Court records indicate that she had consumed alcohol and was asleep at the time leading up to the offence. There is no other material pointing to a particular vulnerability.

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

50. The difference in age between the applicant and the victim was three years.

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

51. The victim was not a child.

(g) The person's present age.

52. The applicant is currently 54 years old.

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

53. The applicant has also been convicted of an offence of goods in custody. The respondent submitted, and the Tribunal accepts that this offence has no bearing on the applicant’s risk to children.

54. Furthermore, there is no evidence of any criminal or other conduct, which would give rise to concern or adverse findings in relation to his subsequent conduct with children or young people.

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

55. The respondent concedes and the Tribunal accepts that there is no evidence to suggest that there is anything other than a low risk of reoffending.

56. The applicant is the father of two children. There is no evidence to demonstrate concerns raised about his conduct in that or any context.

57. The disqualifying offence did not involve a child. It is an isolated incident in what has been a long career as a commercial driver. He has not been the subject of any complaint of misconduct in the 27 years since the disqualifying offence occurred.

58. His current maturity can also be accepted as a factor mitigating any potential risk.

59. There is no evidence that the applicant is the subject of any current order of a Court or Tribunal.

60. Therefore, and notwithstanding the detrimental effect that any such serious offence has on society as a whole, it cannot be said that the children or young people would be more especially impacted in the event of a re-offence than the rest of the community.

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

61. The applicant has acknowledged that he touched the victim and that he understands that this is inappropriate. He continues to deny the allegation of sexual assault.

62. He has stated that he was new to the country at the time of the disqualifying offence and that he was unfamiliar with the law. He states that he is an active member of his community and a law-abiding citizen. He has produced character references that support this contention. The Tribunal has considered these references.

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

63. No material was obtained in accordance with the section.

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

64. The respondent indicated that it supports the making of an enabling order for the applicant to work with children.

The statutory approach

65. The superior Courts have set out the statutory approach that the Tribunal must apply when determining the substantive question of risk. In the current matter there is only one matter that could be considered noteworthy in determining risk to children in any adverse manner, namely the disqualifying offence.

66. The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take.

67. The applicant has one relevant conviction (the disqualifying offence). However, this offence did not involve a child, and occurred 27 years ago. Therefore, we attribute very little weight to the disqualifying offence for the purpose of this application. His conviction for goods in custody does not affect his risk to children or young people.

Consideration

68. Our substantive role is to assess risk; specifically, whether the applicant poses a risk to the safety and well-being of children and young people.

69. We have based our consideration on all of the evidence provided by the parties in documentary form. We have also analysed the circumstances of the disqualifying offence and the applicant’s subsequent conduct.

70. Notwithstanding the disqualifying provisions, and the positive finding against the applicant, we do not find that that the disqualifying offence demonstrates any current risk as set out by Young J in Commission for Children and Young People v V as referred to (above).

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

72. Therefore, we are not satisfied that the applicant currently poses a real and appreciable risk to children. We find that the applicant does not pose a risk to the safety and well-being of children and young persons.

Section 30 (1A) consideration and findings

73. Having made the finding that we have, we are required to consider this section, which requires that the making of the order be in the public interest.

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

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

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

74. The case of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 dealt with the ‘reasonable person test’. At paragraph 73, the Tribunal observed the following:

73. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

75. In our view, a reasonable person would acquaint themselves with all of the evidence and submissions before the Tribunal. A reasonable person would not approach the matter with a closed mind but apply an objective test in consideration of all the material.

76. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk. Particular regard would be had to the relevance and circumstances of the disqualifying matter and the evidence of the applicant concerning the last 25 years.

77. Regard would also be given to the applicant’s otherwise unblemished history and lack of any evidence of risk to children.

78. A reasonable person would, in our view, find that any risk was insufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A).

79. In FDS’s situation, therefore, we find that a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work

80. 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.

81. In our view there is nothing to demonstrate or suggest that that it would be contrary to public interest to grant a clearance. Having found that the issuing of a clearance would not pose an unjustified risk to the safety of children, we find that the applicant’s desire to engage in community activities and the protection of children are, in this instance, complimentary and in the public interest.

82. In accordance with PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 we find that it is in the public interest to make the enabling order.

Conclusion

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

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

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

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

Orders

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

2. The applicant is not to be treated as a disqualified person for the offence, in respect of s.61L of the Crimes Act 1900 (NSW), for which he was convicted on 15 May 1995.

3. The application for an enabling order is granted.

4. Pursuant to s28(6) of the Child Protection (Working with Children) Act 2012, 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

Amendments

22 November 2022 - Order 2 – date of applicant’s conviction changed.

Decision last updated: 22 November 2022