FJT v Children's Guardian

[2023] NSWCATAD 57

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FJT v Children’s Guardian [2023] NSWCATAD 57

Hearing dates:

On the papers

Date of orders:

14 March 2023

Decision date:

14 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Organ, Senior Member

K Stubbs, General Member

Decision:

(1) The applicant is not to be treated as a disqualified person for the offence, in respect of s.352(1)(a) of the Criminal Code 1899 (QLD).

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

(3) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a Working with Children Check Clearance

Catchwords:

ADMINISTRATIVE LAW - working with children - application for an enabling order - applicant a ‘disqualified person’ having been convicted of a ‘disqualifying offence’ (indecent assault) – whether applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW)

Child Protection (Working with Children) Regulation 2013 (NSW)

Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Criminal Code 1899 (QLD)

Cases Cited:

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

BKE v Office of the Children’s Guardian [2015] NSWSC 523

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

EPN V Children’s Guardian [2022] NSWCATAGD 184

VQB v The Secretary to the Department of Justice [2013] VCAT 789

Category:

Principal judgment

Parties:

FJT (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
Hanna Legal (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2022/00151862

Publication restriction:

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

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. On 26 May 2022, the applicant applied for an enabling order pursuant to s 28 (1) of the Child Protection (Working with Children) Act (NSW)2012 (the Act) following a decision of the respondent to refuse to grant him a working with children check clearance (WWCC) on the basis that he is a disqualified person under the Act. That decision was made on 5 May 2022.

2. The applicant in these proceedings is referred to as FJT. Due to the sensitive nature of these proceedings an order was made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 ) (the CAT Act). The name of the applicant and any child referred to in the evidence before the Tribunal or the name of any other person which would identify the name of the applicant or child referred to in the evidence, is not to be published or broadcast without the leave of the Tribunal.

3. FJT seeks a finding by the Tribunal that he does not pose a risk to children. FJT is presumed to be a risk to children, because he was found guilty of indecent assault.

4. The Children’s Guardian supports the applicant’s application for an enabling order.

5. Pursuant to s 52 of the CAT Act and by consent, a hearing was not held.

6. In summary, we are satisfied on the available evidence that the applicant has discharged the required burden of proof and find that he does not pose a real and appreciable risk to the safety and wellbeing of children and young people. Therefore, the application for an enabling order is granted. Our reasons are set out below.

The statutory scheme

7. 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.

8. 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.

9. 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. It is not disputed that the role that the applicant proposes to perform is child related work.

10. Section 18 of the Act provides:

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.

11. There is no dispute the Tribunal has jurisdiction to hear and determine the applicant’s application: see section 28 of the Child Protection (Working with Children) Act 2012, section 30 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decisions Review Act 1997.

12. The Children’s Guardian must refuse to grant a working with children check clearance if the applicant is a “disqualified person” under s 18 (1) of the Act. A person will be considered a disqualified person for the purpose of the Act where they have been convicted of an offence specified in Schedule 2 to the Act if that offence was committed as an adult.

13. The disqualifying offence is identified at s 1(1)(z) of Schedule 2 to the Act, being an offence under a law of another State that, if committed in New South Wales, would constitute an offence under cl 1 of Schedule 2 to the Act.

14. Although FJT was not convicted of the disqualifying offence, the Act contains an expanded definition of ‘conviction’ in s 5 which includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.

15. When determining an application under s 28(1) of the Act, the Tribunal is to have regard to the following matters which are set out in s 30(1) of the Act:

“(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.”

16. Further, pursuant to s 30(1A) of the Child Protection (Working with Children) Act, the Tribunal must be satisfied of certain matters before making an order which has the effect of enabling a person to work with children. Section 30(1A) provides:

“(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.”

The disqualifying offence

17. On 26 December 2020 FJT was charged with the offence of indecent assault under s 352(1)(a) of the Criminal Code 1899 (QLD) (the disqualifying offence). That section provides

352 Sexual assaults

(1) Any person who—

(a) unlawfully and indecently assaults another person;

is guilty of a crime. Maximum penalty—10 years imprisonment

18. In EPN V Children’s Guardian [2022] NSWCATAGD 184 at [12]-[17] the Tribunal accepted that conduct contrary to s.352(1)(a) of the Criminal Code 1899 (QLD) would if committed in NSW constitute the offence of sexual touching under s.61KC of the Crimes Act 1900(NSW). We agree with that view.

19. In evidence before us was a statement of facts prepared by the Queensland Police in relation to the disqualifying offence. This statement of facts sets out that on 25 December 2020 the applicant first met the victim at a nightclub in a location on the Gold Coast.

20. The Police Statement of Facts says

In the early hours of the morning on 26 December 2020, [[the victim]] and [the applicant] walked together from the [nightclub] precinct towards the beach. This was captured on CCTV footage. During the walk to the beach, [the victim] and [applicant] kissed and hugged each other a number of times.

At approximately 3:30 am, police were alerted to Gold Coast City CCTV footage. Whilst on the beach, [the victim] fell down and was lying on her back. [The applicant] was on top of her. While [the victim] was in and out of consciousness, [the applicant] attempted to wake her by tapping her face. He also attempted to pull [the victim] of the sand and escorted her to behind a fixed sea wall, which was out of camera view. Whilst at the sea wall, [the applicant] kissed [the victim] and also touched her on her breast, which had become exposed.

Police attended the beach and took up with [the victim] and [the applicant]. One of the officers observed [the victim]’s exposed breast. Police spoke with [the applicant ] who appeared to be intoxicated. When police spoke with [the victim] and asked her if she knew [the applicant] she told them that she did not. She was also unable to recall any of the incident. She became emotional and asked to go to the toilet; she involuntarily defecated in her underwear. She was transported to the Gold Coast University Hospital where some bruising and a cut to her thigh were observed. She underwent a sexual assault examination, however [the applicant’s] DNA was not detected in any of the swabs taken.

[The applicant] was charged in relation to the offending and remanded in custody. He did not participate in an interview with police. The applicant entered into a bail undertaking 28 December 2020.

21. On 13 April 2020 FJT entered a plea of guilty but no conviction was recorded and he was ordered to pay a fine of $1500 and compensation in the amount of $2000.

Does FJT pose a risk to the safety of children?

22. A risk to the safety of children is defined in s 5B of the Act as a “real and appreciable” risk. This requires that the Tribunal determine whether in all the circumstances, there is a real and appreciable risk that is greater than the risk of any adult preying on a child: Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [26].

23. The Tribunal must consider whether the applicant poses a risk to the safety of children, having regard to the factors in s 30(1) of the Act. The test to be applied is whether the risk posed by the applicant is “a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children”: Commission for Children and Young People v V [2002] NSWSC 949 at [ 42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [26].

24. Set out below are our findings in relation to each of the s 30 (1) factors.

The seriousness of the offence (s 30(1)(a))

25. There can be no doubt that the disqualifying offence was objectively serious. This is reflected in the penalty prescribed of up to 10 years imprisonment. However the fact that FJT was dealt with by way of a fine of $100 and payment of compensation with no conviction being recorded is consistent with our view that the offence was at the lower end of the range of seriousness.

The period of time since the disqualifying offence (s 30(1)(b))

The seriousness of FJT’s criminal history and the conduct of FJT since the commission of the disqualifying offence ( s 30(1)(h))

26. The disqualifying offence occurred in December 2020 just over two years ago.

27. Two pending charges which relate to failure to comply with a COVID-19 health direction and wilful damage to property which are alleged to have occurred in December and January 2020 are noted in FJT’s criminal record.

28. While the disqualifying offence is relatively recent, apart from the other two charges referred to, no events in the intervening period which could be considered adverse to the applicant have been brought to our attention. This weighs in favour of the applicant being granted a clearance. Further FJT has submitted in evidence material which indicates a significant change in his behaviours and lifestyle since the disqualifying offence. He has taken proactive steps to distance himself from the friendship group that he had at the time of the disqualifying offence. He has also reduced his drinking and generally abstains from alcohol now.

The age of the applicant at the time the matters occurred, the age of the victim at the time the matters occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the applicant and the relationship between them, whether the person knew the victim was a child and the applicant’s present age (s 30 (1) (d)-(g) )

29. FJT was 21 at the time the offence was committed and is now 23. The victim was 20 at the time of the disqualifying offence and was not a child. There was no significant age difference between FJT and the victim.

30. At the time of the disqualifying offence the victim had been drinking and was intoxicated. This therefore made her vulnerable.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (s 30 (1) (i))

31. We considered a report dated 9 November 2022 of Mr Sam Borenstein, Clinical Psychologist. Mr Borenstein’s report was commissioned by FJT. The report was not contradicted by other expert evidence.

32. Mr Borenstein reached the conclusion that the likelihood of FJT representing a risk to any member of the community ‘is negligible’. In particular, Mr Borenstein says there is nothing in FJT’s history to indicate he poses a risk to a child.

33. Mr Borenstein points to the following matters:

i.    FJT and the victim were intoxicated at the time of the disqualifying offence.

1. FJT was struggling with symptoms of depression and chronic back    pain and was on the medication Lyrica for his back pain. The combined effects of Lyrica with alcohol would have interfered with    FJT’s judgment and decision-making. This was compounded by his depressed mood in the context of his parents’ separation and feelings of abandonment;

2. His life circumstances ‘have corrected’ and there is nothing in his history which would predict psychological disturbance or disorder. There is no history of alcohol or substance use disorder with FJT now pursuing positive health and lifestyle choices;

3. FJT has expressed guilt, remorse and contrition in regards to the  disqualifying offence.

   34. We have placed substantial weight on Mr Borenstein’s evidence which we consider was credible, balanced and weighs in favour of an enabling order being granted.

   35. In the two years since the disqualifying offence FJT has taken steps to make more positive choices in relation to his lifestyle including engaging in exercise. He has stable employment and is no longer experiencing mental health issues. In our view these are protective factors and weigh in favour of FJT posing a very low risk of re-offending or in engaging in conduct that would pose a risk of harm to the safety of children.

   36. The weight of the evidence supports a conclusion that the likelihood of FJT re-offending is very low.

Any order of a court or tribunal that is in force in relation to the person (s 30 (1) (i1))

37. There is no evidence of any order of a court or tribunal that is in force in relation to the applicant.

Information given by the applicant in, or in relation to, the application (s 30(1)(j))

38. We have considered and placed substantial weight upon the following evidence provided by FJT, being his statutory declaration filed on 26 September 2022 and the report of Mr Borenstein. We have had regard to FJT’s evidence that he has had stable employment since completing Year 12 and has also undertaken university study. He requires the WWCC in order to maintain his employment even though he will not be working directly with children but may come into contact with children during the course of his employment.

39. He is noted to have a supportive relationship with his current employer who is aware of the disqualifying offence and provided a character reference for FJT. His employer speaks in positive terms of FJT’s work ethic and speaks of the disqualifying offence having resulted in FJT having a greater sense of responsibility and accountability. Other character references provided from family and friends for the purpose of the criminal proceedings also speak highly of FJT and his efforts to make positive changes to his lifestyle. They also speak of his positive interactions with children.

Any relevant information in relation to the person that was obtained in accordance with section 36A (s30(1) (j1))

40. There was no information relevant to this section bought to our attention.

Any other matters that the Children’s Guardian considers necessary (s30(1)(k))

41. The Children’s Guardian submits that the presumption that FJT poses a risk to the safety of children has been rebutted by FJT.

Has the applicant discharged his onus in rebutting the presumption that he poses a risk to the safety of children?

42. Based on the material before the Tribunal, the matters set out in s 30(1) of the Act, the paramount consideration in s 4 of the Act and our findings above, we are satisfied that the applicant has rebutted the statutory presumption and does not pose a real and appreciable risk to children. In summary we have reached this conclusion because:

A.   the disqualifying offence, while very serious, occurred just over two years ago and was offending conduct at the lower end of the scale of seriousness for this type of offence. The victim was not a child;

B.   there is no evidence of the applicant having acted in this way previously or since that time;

C.   Since the disqualifying offence committed by FJT there is no evidence of any conduct that could be considered adverse to him relevant to our consideration;

D.   the applicant is now 23 years of age and the victim of the disqualifying offence was not a child;

E.   We accept Mr Borenstein’s finding of the positive lifestyle choices FJT now makes and his evident remorse and contrition mean that FJT poses a ‘negligible’ risk to any member of the community.

F.   We accept FJT’s evidence regarding the disqualifying offence occurring in the context of him experiencing poor mental health following his parent’s divorce and a chronic back condition. Those health issues have now resolved.

G.   We also are satisfied that FJT has demonstrated that he now has developed insight into his offending and has taken steps to try and ensure this will not re-occur.

Would a reasonable person allow his or her child to have direct, unsupervised

contact with FJT whilst he is engaged in child-related work? Is it in the

public interest to make the orders sought by the applicant? (s 30(1) A)

43. Section 30 (1) (A) of the Child Protection (Working with Children) Act 2012 applies to this application. That section provides that the Tribunal may not make an order which has the effect of allowing the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that :

1. 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 child-related work, and

2. it is in the public interest to make such an order

In VQB v The Secretary to the Department of Justice [2013] VCAT 789 the Tribunal said this test requires:

the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.

44. In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a “reasonable person” would need to know the applicant’s criminal history being his conviction for the disqualifying offence. We are satisfied that a reasonable person would have regard to all of the relevant facts before the Tribunal. This includes the fact that while it is now only just over two years since the disqualifying offence was committed by FJT a reasonable person would note the circumstances surrounding the offending behaviour in 2020 and would accept that the applicant now has insight into his behaviour and the circumstances that led to it. The reasonable person would give weight to the findings of Mr Borenstein that FJT poses ‘a negligible’ risk to any members of the community including children. The reasonable person would also appreciate that FJT’s employer, and family are supportive of him and therefore he has a strong social network.

45. Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with FJT whilst he is engaged in child-related work.

46. The Tribunal must also be satisfied of the second part of the test in s 30 (1) (A) that the order is in the public interest.

47. The Tribunal must consider the public interest in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.

48. The public interest test requires the Tribunal, in the context of the paramount consideration in s 4 of the Act (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests.

49. The applicant has committed one serious offence. It is not in the public interest that the Act operate where a person does not pose a risk to children, to preclude that person from working or volunteering with children. Having regard to the available evidence and our findings that the applicant does not pose a real and appreciable risk to the safety of children, it is in the public interest to make the orders sought by the applicant.

Summary of findings

50. In summary, we are satisfied that the applicant has rebutted the presumption that he poses a risk to the safety of children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make an enabling order.

Orders

51. Accordingly, we make the following orders:

1. The applicant is not to be treated as a disqualified person for the offence, in respect of a conviction for the offence of sexual assault contrary to s 352(1)(a) of the Criminal Code 1899 (QLD) entered on 13 April 2022 at Southport Magistrates Court.

2. The application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) is granted.

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

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 14 March 2023