FJF v Children's Guardian

[2022] NSWCATAD 381

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FJF v Children’s Guardian [2022] NSWCATAD 381

Hearing dates:

On the papers

Date of orders:

1 December 2022

Decision date:

01 December 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member (Legal)
R Royer General Member (Community)

Decision:

(1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his 2019 Court outcome in respect of sexual touching without consent assault s- 61KC (a) Crimes Act 1900 and grants an Enabling Order.

(2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a Working with Children Check clearance.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable – enabling order- disqualified person

Legislation Cited:

Administrative Decisions Review Act 1997

Children and Young Persons (Care and Protection) Act 1998

Child Protection (Prohibited Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Child Protection (Working with Children) Regulation 2013

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

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

AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69

BFC v The Children's Guardian [2014] NSWCATAD 90

BFX v Children's Guardian [2014] NSWCATAD 115

BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 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

CXZ v Children’s Guardian [2020] NSWCA 338

M v M (1988) 166 CLR (HCA)

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

FJK (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
L Bereicua Solicitor (Applicant)
Crown Solicitor(Respondent)

File Number(s):

2022/00092345

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, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

1. This applicant seeks an Enabling Order under s 28 of the Child Protection (Working with Children) Act 2012 (‘the Act’) so that they may obtain a Working with Children Check Clearance (WWCCC). The applicant seeks an Enabling Order, as they are a disqualified person under the Act.

2. The applicant is referred to as ‘FJF’ in these proceedings. FJF is the applicant's pseudonym used in these proceedings in conformity with an order made under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

3. On 31 March 2022 FJF filed an application with the Tribunal. That application seeks an Enabling Order under s 28 of the Act. FJF seeks a finding by the Tribunal that he does not pose a risk to children, and as a result an Enabling Order under section 28 of the Act should be issued by the Tribunal.

4. These proceedings arise because on 7 May 2019, the Children's Guardian who is the respondent or contradictor in these proceedings issued FJF with a Notice and Reasons for cancellation of Working with Children Check clearance. That notice was issued pursuant to section 23 of the Act. FJF had proceedings against him commenced for a disqualifying offence within the meaning of the Act and as a result (subject to review and the issuing of an Enabling Order by the Tribunal) is prohibited from obtaining a Working With Children Check Clearance (WWCCC).

5. FJF is a disqualified person because he has been found guilty of an offence (without proceeding to a conviction) in the nature of sexual touching / indecent assault in June 2019 with the incident occurring in May 2019.

6. At the conclusion of the evidence and submissions the Tribunal finds for the reasons which follow, that FJF is not a real and appreciable risk in respect of the safety and well being of children, and that as a result he has rebutted the statutory presumption that he is a risk to the safety and well being of children. In such circumstances the Tribunal will grant FJF an Enabling Order.

Background

7. On or about 11 July 2018 FJF was issued a Working with Children Check clearance from the Children’s Guardian. That clearance was cancelled in 2019 in the manner outlined above. It is unclear to the Tribunal why FJF initially, sought and was granted a WWCCC, presumably to engage in child related work.

8. However close to three years after that cancellation FJF now seeks that he be granted a WWCCC by way of an Enabling Order. It appears to the Tribunal that FJF requires a WWCCC not so that he may engage in child related work, but because his current employer has been advised of a new funding requirement that all employees must hold a WWCCC irrespective of whether they engage in child related work. This basis appears somewhat at odds with the objects and purpose of the Act and the working with children regime. However as we have no material before us to establish the legal requirement or need for FJF to hold a WWCCC, we are unable to make any further comment on the necessity or utility of these proceedings.

9. We do note however hat FJF’s ordinary duties and his role do not in our view (on the available information) fall within Part 2 of the Child Protection (Working with Children) Regulation 2013. On our assessment of those circumstances there does not appear to be any legal requirement for FJF to hold a WWCCC in the stated circumstances.

10. As FJF is seeking an Enabling Order before the Tribunal, it appears appropriate to determine the application as made. Irrespective of the lack of a legal necessity for an Enabling Order, the Tribunal clearly has jurisdiction to grant or refuse the application as set out above.

11. On 7 May 2019 the Children’s Guardian issued the 'Notice and Reasons for cancelation of Working with Children Check clearance’. That Notice was issued under as 23 of the Act which provides:

23 Cancellation of clearances

(1) The Children’s Guardian must cancel the working with children check clearance of a person if the Children’s Guardian becomes aware that the person is a disqualified person or the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(2) The Children’s Guardian must notify the holder of the clearance in writing of the Children’s Guardian’s decision to cancel the clearance.

(3) Notice of a decision to cancel a clearance must set out the reasons for the cancellation and the right to seek a review under Part 4.

(4) The Children’s Guardian must as soon as practicable after cancelling a clearance, give written notice of that cancellation to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance.

Note—

The holder of a clearance may also be made subject to an interim bar (see section 17).

12. The basis of the Notice concerns the offence of Sexual Touching under s 61KC of the Crimes Act 1900.

61KC Sexual touching

Any person (the accused person) who without the consent of another person (the complainant) and knowing that the complainant does not consent intentionally—

(a) sexually touches the complainant, or

(b) incites the complainant to sexually touch the accused person, or

(c) incites a third person to sexually touch the complainant, or

(d) incites the complainant to sexually touch a third person,

is guilty of an offence.

Maximum penalty—Imprisonment for 5 years.

13. FJF was found guilty at Court without proceeding to a conviction of an offence meeting the proofs of s 61KC (a) of the Crimes Act in that the Court ordered a Conditional Release Order for 24 months under s 9 (1) (b) of the Crimes (Sentencing Procedure) Act 1999.

14. This offence (as proven) is the offence of sexual touching as set out in s 61KC of the Crimes Act 1900 (NSW).

15. The offence under 61KC of the Crimes Act 1900 is located in Schedule 2 of the Act as a disqualifying offence. Relevantly for the current proceedings Schedule 2 Clause 1 (1) (e) provides:

Schedule 2 Disqualifying offences

1 Specified offences

(1) The following offences are specified—

(a) murder,

(b) manslaughter of a child (other than as a result of a motor vehicle accident),

(c) an offence involving intentional wounding of, or intentional causing of grievous bodily harm to, a child by an adult who is more than 3 years older than the victim,

(d) an offence under section 61B, 61C, 61D, 61E or 61F of the Crimes Act 1900,

(e) an offence under section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O or 61P of the Crimes Act 1900,

….

(Emphasis added)

16. As a result of the Court finding FJF is a disqualified person and his clearance was cancelled in accordance with s 23 (1) of the Act as outlined at [11] above.

17. Because of the asserted requirement of his employer than FJF now hold a WWCCC, on 31 March 2022 FJF lodged an application with the Tribunal. In making such an application FJF was seeking that the Tribunal grant an Enabling Order as a result of the earlier cancellation.

18. FJF is able to apply for an Enabling Order because of the operation of s 28 of the Act. Because FJF’s clearance was cancelled by the Children’s Guardian under s 23, FJF is able to apply to the Tribunal for an Enabling Order under s 28 (3) (b) of the Act.

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.

(Emphasis added)

Jurisdiction of the Tribunal

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

3 Object of Act

The object of this Act is to protect children:

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

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

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

20. The issue to be decided by the Tribunal is whether on the balance of probabilities FJF continues to pose a risk to the safety and well being of children. In reaching this position the Tribunal is required to consider whether the granting of an Enabling Order would result in a risk to the safety and well being of children if FJF was to engage in child related work. If FJF was considered a risk, then an Enabling Order cannot be issued. In determining whether to grant the Enabling Order, the Tribunal must consider the matters set out at s 30 (1) and (1A) of the Act, so as to determine on the available evidence whether FJF is a risk

21. In addition, in reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk. Risk is determined at the time of the decision made by the Tribunal so in that regard the Tribunal is determining an applicant’s current risk when deciding whether to grant an Enabling Order.

22. The application to the Tribunal was filed well outside the period provided for in cl 23 (3) (b) of the Civil and Administrative Tribunal Rules 2014.

23 General applications

(1) A general application must be—

(a) in or to the effect of the approved form, and

(b) duly completed, and

(c) lodged at the Registry, and

(d) accompanied by the applicable fee (if any) for the application.

(2) A general application need not specify the Division of the Tribunal to which the function of determining the application is allocated by the Act. However, if the appropriate Division is not specified or an incorrect Division is specified, a registrar may complete or alter the application form accordingly.

(3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made—

(a) in the case where enabling legislation specifies the period within which the application is to be made—within the period specified, or

(b) in any other case—within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application.

(Emphasis added)

23. However on 26 May 2022 the Tribunal differently constituted made an order under s 41 of the NCAT Act extending time to lodge the application for an Enabling Order until 31 March 2022. As oral reasons were provided the Tribunal (as currently constituted) is unsure of the basis for this decision. However we note that had that application been before us we would have extended time as well, as FJF only became aware of the change in his employer’s funding arrangements (being the basis for seeking a WWCCC) in the weeks prior to his application to the Tribunal.

The working with children legislative scheme

24. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

25. The safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: s 4 of the Act.

26. 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.

27. 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.

28. FJF has previously been granted a WWCCC. It is not clear whether FJF was subject to a risk assessment in 2018 at the time of his initial application, however there was no requirement for any risk assessment at that time due to a lack of offending by FJF.

29. Part 4 of the Act deals with reviews and appeals. Section 28 provides for an application to the Tribunal for an Enabling Order. Part of the section is set out at [18] above. The remainder of the section relevantly provides:

28 Orders relating to disqualified and ineligible persons

(1) …

(2) …

(3) …

(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.

(6A) To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children’s Guardian in accordance with the Tribunal’s order.

(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)

30. An Enabling Order is dealt with under Part 4 of the Act. Section 30 of the Act applies to all matters dealt with under Part 4 and sets out the factors that the Tribunal must consider in determining a review application in order to determine risk. Section 30(1) of the Act provides:

30 Determination of applications and other matters

(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.

31. If at the conclusion of the s 30 (1) process the Tribunal determines that an applicant for a clearance is not a risk to the safety of children, then the Tribunal must consider the matters set out at s 30 (1A) of the Act.

(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.

32. Only after an applicant has successfully navigated s 30 (1) and (1A) can the Tribunal grant an Enabling Order. In this regard the Tribunal engages in a similar process as when an applicant is seeking an administrative review of a decision that they pose a risk (a risk assessment review) under s 27 of the Act. However the onus is different when considering whether to grant an Enabling Order as opposed to conducting an administrative review.

Burden of Proof

33. There is a statutory presumption that FJF is a risk to children as an applicant for an Enabling Order under s-28 of the Act. (s 28(7)).

(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.

34. 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". ...'

35. 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.

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

37. We note that since the cases referred to above ‘risk’ has now been given a statutory definition in Act at s 5B by reference to ‘risk to safety of children’.

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

The hearing

38. The matter was to be heard before the Tribunal however shortly before the hearing date both parties filed consent orders seeking to have the matter determined in the absence of a hearing, ‘on the papers’.

39. Section 50 of the NCAT Act sets out when hearings are required.

50 When hearings are required

(1) A hearing is required for proceedings in the Tribunal except—

(a) in proceedings for the granting of leave for an external or internal appeal, or

(b) in connection with the use of any resolution processes in proceedings, or

(c) if the Tribunal makes an order under this section dispensing with a hearing, or

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

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first—

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

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

(5) This section does not prevent the Tribunal from holding a hearing even if it is not required.

(Emphasis added)

40. On 26 October 2022 the Tribunal differently constituted made an order (by consent) dispensing with a hearing pursuant to s 50 (2) of the NCAT Act. However, because the application was by consent the provisions of s 50 (3) (a) and (b) were deemed satisfied. Once the Tribunal was constituted and having considered the matter afresh on the listed date for hearing (28 October 2022) we determined that we could proceed to decide the matter in accordance with s 50 (4) based on the material filed by the parties without the need for a hearing and taking further evidence from the parties.

Written Evidence

FJF’s written material

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

1. The application to the Tribunal attaching the Notice and Reasons for cancellation of Working with Children Check clearance.

2. ‘Personal Statement’ (CV / Qualifications) of FJF including historical and Court references, Court outcome material and Psychological Assessment dated 20 June 2017.

3. Applicant’s written submissions dated 24 May 2022.

Children’s Guardian’s written material

42. The Children’s Guardian filed written submissions dated 14 October 2022. They also filed and served two bundles of evidence / material:

1. Respondent’s Tender Bundle filed 25 May 2022 containing Court and Police material and material submitted by FJF.

2. Respondent’s evidence including material obtained under s 31 of the Act filed 19 July 2022.

43. As the matter was dealt with in the absence of the parties, and as in our view the material was relevant and no submissions were made to the contrary (including submissions as to weight), we received all of the material listed above without objection and considered it in making our determination.

Written submissions

44. In written submissions FJF set out his understanding of the circumstances of his offending in May 2019 and submitted that he sincerely regretted the offence. The offence involved the rubbing of the leg and upper thigh of a teenage female who was seated next to him in a cinema during the showing of a movie. FJF’s behaviour will be set out in further detail below, but in submissions the statement of regret and the mistaken belief that the behaviour was endorsed by the victim (which it was not) has been addressed.

45. FJF referred to his lack of any other criminal or adverse matters other than the incident in the cinema in May 2019 and that he has never otherwise been considered a risk to the safety and well-being of children.

46. FJF also referred to the fact that he will cease work with his current employer if he is unable to obtain a WWCCC. And that in the community sector he will find it difficult to obtain work generally without a WWCCC.

47. FJF submitted that at the time of the offence he was 33 years old and had no criminal history or criminal record. FJF set out that since coming to Australia as a refugee in 2010 he had undertaken a number of volunteer roles in the community both prior to employment and in addition to employment.

48. At the time of the offence FJF had been attending counselling due to depression in part (it was submitted) as he had been waiting since 2013 for his fiancé to be granted a visa to move to Australia. The circumstances of the offending were couched in terms of FJF’s depression. In addition he admitted and that he had been drinking alcohol prior to the movie but was not intoxicated to any significant degree, and believed that the victim was woman, not a 17 year old teenager. In addition he believed (mistakenly) that his actions were reciprocated by the 17 year old seated next to him in the cinema. FJF has since abstained from alcohol.

49. FJF submitted that at the time of his offending he was unaware of the impact of his actions on the victim and that until the film finished and the lights were raised and also that she had been seeking protection / comfort from her female friend who was seated on the other side of the victim. FJF submitted that he ‘placed his arm on the armrest and after some time touched her leg. She did not say anything at the time and I did not realise that it was not welcome until she moved away’.

50. FJF submitted that as soon as he was spoken to by Police he was completely open and honest about what had happened.

51. FJF also submitted that h had advised his current employer about the offence and they had provided letters of support for FJF in his application for an Enabling Order. The CEO of the organisation provided a letter dated 17 February 2022, which speaks positively of FJF and proffers a view that he is not a risk to children.

52. Another letter dated 10 February 2022 supports the ‘application to reinstate the Working with Children Check’. The author has known FJF since February 2018.

53. The Children’s Guardian submitted that the likelihood of FJF reoffending and engaging in behaviour which might pose a risk to children, is low. This was because FJF had not reoffended, the offences were out of character, and there was no pattern of offending.

54. In addition the Children’s Guardian submitted that on the basis of the material before the Tribunal, the Tribunal would find that FJF does not pose a real and appreciable risk to the safety of children.

55. It was submitted by the Children’s Guardian that this lack of risk was because other than the disqualifying offence there is an absence of misconduct. There has been a misconduct free period and the offending conduct was objectively very low in its level of seriousness. In addition FJF’s remorse and engagement with rehabilitative services (following the Court outcome) were seen as protective factors.

56. The Children’s Guardian submitted that in those circumstances it supported the application.

Consideration

57. Having considered the evidence and submissions we will now consider the mandatory considerations in determining the matter in the way provided for under the Act. We set out and discuss much of the relevant evidence in addressing these mandatory considerations.

Section 30 (1) considerations

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

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

59. FJF’s application to the Tribunal is brought about by a Notice to Disqualified Person. The offence leading to that notice (sexual touching) is objectively serious and carried a penalty of a maximum of five years imprisonment. However taking into account the actual elements of the offence in the circumstances for which FJF was charged, we note that the offence is a lesser offence in the range of offences dealing with sexual and indecent assaults which in this instance might amount to an indecent assault and / or a commit act of indecency offence.

60. Whilst the offence is serious we agree with the Children’s Guardian submission that in FJF’s circumstances of offending, the offence is at the lower end of objective seriousness having regard to the penalty imposed by the Court. FJF was given a conditional release order for two years following a plea of guilty. We also agree with the Children’s Guardian submission that in the range of disqualifying offences this offence is at the lower end of seriousness and that FJF’s behaviour or conduct in the commission of the offence was also at the lower end of seriousness for offences of this nature.

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

61. It is clear that the matters referred to under s-30 (1) (a) occurred in recent years in that they occurred on one day in May 2019. This is the only adverse matter identified by the Children’s Guardian following investigation n the issuing of Notices under s 31 of the Act. It has been over three and a half years since the commission of this offence.

62. There is however no evidence of any unlawful or other adverse behaviour by FJF in the intervening period of over 42 months that has been brought to the attention of the Tribunal by either party.

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

63. The applicant was 33 years of age at the time of his offending.

(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.

64. The victim arising from FJF’s offending in May 2019 was approximately 17 years and six months of age when the offence occurred.

65. The female victim was clearly vulnerable as she was a child / young woman and FJF is a male. From the material before the Court and the Tribunal it is clear that the victim found the assault very distressing. Her lack of prior knowledge of FJF and the fact that he was a man and the unprovoked and random nature of the crime would have made the victim more vulnerable as a result.

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

66. The difference in age between the applicant and the victim in the disqualifying matter is approximately 16 years. FJF and the victim did not know each other prior to the incident, having never met prior to the incident and did not exchange words during the incident.

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

67. In respect of the disqualifying offence FJF maintained his mistaken belief that he thought the victim was an adult and that she was reciprocating the behaviour. It is unclear of the classification of the film that they were watching in the cinema other than that it was a horror movie. The cinema was dark and FJF initially explained his actions in that he was unable to determine that the victim was not a reciprocating adult when seated next to her in the darkened cinema. Whilst these matters do not in any way condone FJF’s behaviour, the Tribunal notes those factors and that the victim was six months away for her eighteenth birthday.

(g) The person's present age.

68. FJF was 36 years and 10 months old at the time of the determination of the matter by the Tribunal. The relevance being that offending (including sexual offending) generally declines with age and significantly past middle age.

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

69. The applicant does not have a criminal record in respect of the disqualifying offence, the matter having been finalised without conviction. This is the only matter in FJF’s Police history of a criminal nature. The matter as set out above is objectively serious. However as also noted above the offence resulted in penalties at the lower end of the available range, the disqualifying matter resulting in a Conditional Release Order and no conviction being entered, where a maximum of five years imprisonment was available to the Court.

70. There is no evidence before the Tribunal of any other offences or subsequent adverse matters coming to attention, prior to May 2019 or since.

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

71. If FJF was to repeat his behaviour from the day of the disqualifying offence the impact on any children exposed to such offending would be significant. The offence did involve a child but as noted above appear to have occurred in circumstances where FJF (reasonably or otherwise) believed that the victim was an adult. It is doubtful having regard to the subject matter of the film that it occurred at a location where young children were permitted. As noted the classification of the film is not known but it is unlikely that any children under the age of 15 years would have been present in the cinema.

72. There is no evidence of any pattern of behaviour including excessive intoxication by FJF and the commission of any similar behaviour / offending.

73. FJF expressed remorse when spoken to by Police and assisting Police with their inquiries. He pleaded guilty to the matter. FJF has expressed contrition in his written evidence to the Tribunal.

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

74. FJF’s Conditional Release Order expired in early June 2022. There is no other relevant evidence or matters to consider under this criteria.

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

75. FJF tendered character references in support, and a statement of his own. No objection was made as to their tender by the Children’s Guardian, and none of the witnesses were required for cross-examination at hearing.

76. FJF also stated the matters set out at [44] – [51] above in relation to the disqualifying matter. FJF also stated in his written evidence that he does not pose a threat to any child or adult and that his actions in May 2019 were unacceptable.

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

77. There is no material obtained under s 36A.

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

78. The Children’s Guardian submitted that NSW Police have no records of FJF being named in apprehended violence orders and they do not hold any COPS records that refer to FJF in the context of violence, child abuse or sexual offences.

79. Likewise it was submitted that there are no Department of Communities and Justice records concerning child protection matters involving FJF.

Consideration

80. Turning to how the Tribunal should discharge its statutory functions on the evidence we note the guidance from the Courts of record. In the case of BKE v Children’s Guardian [2015] NSWSC 523 Beech-Jones J sets out the approach that the Tribunal should take. BKE dealt with an Enabling Order application. Unlike the facts in BKE, certain matters in the current case are settled, in that the Court has made a positive finding on the conduct and FJF does not dispute that finding.

81. At pars 29 of BKE the Court observed:

29. In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

82. We note that in the current matter we are not required to make positive findings on the circumstances of the event in question, as the events as set out are accepted by the parties. There would be no basis on the available evidence for the Tribunal to depart from that position. Returning to BKE we note the reference to risk and unacceptable risk. At [32]:

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).

83. In these proceedings our substantive role is to assess risk, and whether specifically at present FJF poses a risk to the safety and well being of children and young people. We have based our consideration on all of the evidence given by the parties in documentary form in the absence of a hearing. The evidence was not tested by cross-examination however we note that the evidence appears uncontroversial between the parties.

84. We note that the Court of Appeal in the case of CXZ has reinforced the matters central to what the Tribunal must address when the Tribunal is assessing overall risk. As Simpson AJA points out at 79 of CXZ when noting that the language of M v M:

..requires the Tribunal to determine “whether on the evidence” (and that means the whole of the evidence) the applicant poses a risk to the safety of children if a clearance is granted to him.

85. In respect of the sole criminal allegation we adopt the findings of the Local Court and note that on this basis the Notice to Disqualified Person was issued.

Finding as to risk

86. Based on a consideration of all of the evidence, and noting the guidance from CXZ we are not satisfied that FJF currently poses a real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we find that the applicant does not pose a risk to the safety and well-being of children and young persons.

87. Other than the serious nature of his offending in May 2019, and the impact such offending would have (as it did involve) or was otherwise observed by children, there was no evidence of any direct risk to children in FJF’s behaviour. We note that the victim was over 17 and a half years of age at the time of the incident and noting that she was with a friend we deem that the matter whilst serious, was not specifically child related (other than by being 17 years of age) having regard to all the circumstances of the incident.

88. In our view the overall vulnerability of the victim is of much greater consideration concerning the offending that the technical issue that she was at the time still a juvenile. The victim felt the need to contact her boyfriend by text message during the incident, to have him come and meet them at the cinema.

89. However in making this observation to vulnerability, we note that FJF’s behaviour occurred in the presence of the victim who was technically a child, and irrespective of that fact did cause significant harm to her at the time by way of evidence of psychological harm. The victim was fearful of FJF during the incident and stated that she did not try to leave the cinema because she feared that FJF would follow her.

90. 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.

Section 30 (1A) consideration and findings

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

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

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

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

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

93. In our view a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. As in the Victorian cases that we refer to below we are of the view that a reasonable person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk.

94. Particular regard would be had to the background of FJF and the evidence of his depression at that time around visa delays and associated matters. The reasonable person would in our view have regard to this evidence in determining that the actions of FJF in May 2019 were isolated and out of character.

95. A reasonable person whilst approaching the matter with some caution noting the serious nature of the disqualifying offence, 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). At its lowest FJF’s behaviour might be considered a misunderstanding which in our view only heightens the need for consent to be expressed when parties seek to engage in any form of behaviour that might be considered intimate.

96. In our view the reasonable person would weigh up all the factors and arrive at a conclusion that FJF was completely mistaken in his misreading of the situation and once being aware of the harm caused he was apologetic and remorseful. These matters would indicate to the reasonable person that there was no premeditated plan to assault the victim but rather action with a lack of consent (which equates to the same thing at law). However in a child protection regime a lack of intention to harm would be considered by the reasonable person.

97. Likewise the threshold age of the victim and FJF’s mistaken belief would be taken into account by the reasonable person and lead them to the conclusion that there would be little or no real and appreciable risk in FJF having unsupervised access to their own child in a child related work situation.

98. The reasonable person is required to consider the matter objectively and in our view would reach a similar conclusion to the Tribunal.

99. As the Tribunal has previously noted, 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.

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

101. We note that the Children’s Guardian submitted that the reasonable person would also know that there was no other evidence to suggest that FJF had behaved improperly towards children. They submitted that the isolated nature of the offending and otherwise offence free existence of FJF would be taken into account by the reasonable person. The reasonable person would give weight to the fact that FJF had engaged with mental health support services following his Court outcome and the evidence that he had abstained from alcohol since the disqualifying offence.

102. The Tribunal notes that one of the referees / references ‘C.C.’ contains knowledge of the offence but still considers FJF to be a person of integrity, and this would be considered positively by the reasonable person.

103. 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.

104. In our view there is nothing contrary to the notion of the public interest in the granting of a clearance in this matter. We find that the balancing of FJF’s right to continue to engage in his current employment, irrespective of the fact that the employment does not involve child related work and there is no apparent reason for a WWCCC, contrasted with the protection of children, are not notionally at odds with one another. FJF’s work would broadly be described as ‘community sector work’ mainly involving adults seeking refugee processing and visa status determinations. He provides liaison and support in that area. These matters are in themselves maters which go to the public interest far more than the private pursuit of profit which has lesser public interest benefit. His work, like child related work, is in the public interest. In addition there is a public interest in allowing FJF the right to continue that work.

105. FJF’s work is in this instance complementary to child related work and in the public interest, as the issuing of a clearance would not pose an unjustified risk to the safety of children.

106. FJF’s written evidence indicated that he has significant insight into his past behaviour and takes full responsibility for it.

107. Consistent with the reasoning in PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 we believe that it is in the public interest to grant the clearance. We note again given our finding under s 30 (1) that FJF’s level of risk is deemed to be equal to that of any member of the community.

108. As a result we find that it is the public interest to grant FJF an Enabling Order.

Conclusion

109. For the reasons set out above, and the findings at [86] [100] and [108], we reach the following conclusion.

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

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

112. It therefore follows that the application for an Enabling Order should be granted.

Orders

1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his 2019 Court outcome in respect of sexual touching without consent assault s- 61KC (a) Crimes Act 1900 and grants an Enabling Order.

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a Working with Children Check clearance.

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: 01 December 2022