FLE v Children's Guardian

[2023] NSWCATAD 89

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FLE v Children’s Guardian [2023] NSWCATAD 89

Hearing dates:

On the papers

Date of orders:

17 April 2023

Decision date:

17 April 2023

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 2002 conviction of assault with act of indecency 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

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Child Protection (Prohibited Employment) Act 1998 (Repealed)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

Crimes Act 1900

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:

FLE (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
NSW Crown Solicitor (Respondent)

File Number(s):

2022/00157387

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 ‘FLE’ in these proceedings. FLE 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 May 2022 FLE filed an application with the Tribunal. That application seeks an Enabling Order under s 28 of the Act. FLE 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 2 May 2022, the Children's Guardian who is the respondent or contradictor in these proceedings issued FLE with a Notice to Disqualified Person pursuant to section 18 of the Act. FLE had been convicted of 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. There is no dispute that the application filed on 2 May 2022 has been brought within time, or that the Tribunal has jurisdiction to hear the matter.

6. FLE is a disqualified person because he has been convicted / found to have committed offences in the nature of assaults one of which was in the circumstances of an assault with an act of indecency in July 2002. At the conclusion of the evidence and submissions the Tribunal finds for the reasons which follow, that FLE 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 FLE an Enabling Order.

Background

7. On or about 28 March 2022 FLE applied for a Working with Children Check clearance from the Children’s Guardian. It appears to the Tribunal that FLE requires a WWCCC so that he may volunteer for his children’s Rugby Football Club. On our assessment of those circumstances there does not appear to be any legal requirement for FLE to hold a WWCCC in the stated circumstances. This is because of clause 20 (1) (f) of the Child Protection (Working with Children) Regulation 2013 (the Regulation).

Part 4 Exemption of workers and employers from Act

20 Exemption from Act for specified workers and employers

(1) The following workers engaged in child-related work (and employers of those workers in that capacity) are exempt from the Act (other than section 7 of the Act)—

(a) a worker (other than a school cleaner) who provides administrative, clerical or maintenance services, or other ancillary services, if the work does not ordinarily involve contact with children for extended periods,

(b) a worker who works for a period of not more than a total of 5 working days in a calendar year, if the work involves minimal direct contact with children or is supervised when children are present,

(c) a worker who carries out the work in the course of an informal domestic arrangement that is not carried out on a professional or commercial basis,

(d) a worker whose work involves direct contact only with children who are close relatives of the worker, other than a worker who carries out the work in the capacity of an authorised carer,

(e) a parent, or close relative, of a child who attends a school, an education and care service or other educational institution when volunteering at or for activities of the school, service or institution,

(f) a parent, or close relative, of a child when volunteering in connection with a team, program or other activity of which the child is a member or in which the child usually participates,

(Emphasis added)

8. The term ‘close relative’ is defined at cl 3 of the Regulation:

3 Definitions

(1) In this Regulation—

close relative of a person means—

(a) a spouse or de facto partner of the person, or

(b) a child, step-child, sibling, step-sibling, parent, step-parent, grandparent, step-grandparent, aunt, uncle, niece or nephew of the person,

and includes, in the case of an Aboriginal person or a Torres Strait Islander, persons who are part of the extended family or kin of the person according to the indigenous kinship system of the person’s culture.

home-stay means residence with another family for a period for the purposes of a cultural or educational program.

parent of a child means the person having, in relation to the child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.

(Emphasis added)

9. It would appear that the stated circumstances would involve voluntary child related work in the context of family members providing assistance with community based sport. In the absence of any understanding why in those circumstances FLE seeks an Enabling Order, consistent with our earlier observations in other matters involving similar background circumstances, having made the WWCCC application to the Children’s Guardian, and having been issued a mandatory Notice to Disqualified Person, and now 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.

10. On 2 May 2022 the Children’s Guardian issued the 'Notice to Disqualified Person pursuant to section 18, whereby on their assessment, FLE was a disqualified person as referred to in s 18 of the Act.

11. Section 18 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.

(2) The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3) The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

12. The basis of this assessment was that records indicated that FLE had been convicted of the offence of Assault with Act of Indecency NSW Crimes Act 1900 Section 61L.

13. The offence under 61L of the Crimes Act 1900 is located in Schedule 2 of the Act as a disqualifying offence.

14. As a result of the refusal of the clearance because of the Notice to Disqualified Person FLE is unable to engage in child related employment in circumstances where an exemption is not available.

15. On 31 May 2022 FLE lodged his application for an enabling order. The grounds of the application are:

The incident occurred over 19 years ago. Since then I have matured, have a family (3 kids) of my own. I made a mistake that night due to being intoxicated and believe I have done community service, paid fines and victims compensation. I would ask that I not be treated as a disqualified person.

Jurisdiction of the Tribunal

16. As has previously been observed, 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

17. The issue to be decided by the Tribunal is whether on the balance of probabilities FLE 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 FLE was to engage in child related work. If FLE 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 FLE is a risk

18. 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.

The working with children legislative scheme

19. 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.

20. 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.

21. 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.

22. 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.

23. FLE has not been subject to a risk assessment as the Children’s Guardian identified matters listed in Sch 2 of the Act as referred to above at [13] and a Notice to Disqualified Person issued without proceeding to determine his application further.

24. Part 4 of the Act deals with reviews and appeals. Section 28 provides for an application to the Tribunal for an Enabling Order. The section relevantly 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.

(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)

25. 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.

26. 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.

27. 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). However the onus is different when considering whether to grant an Enabling Order as opposed to conducting an administrative review.

Burden of Proof

28. There is a statutory presumption that FLE 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.

29. 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". ...'

30. 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.

31. 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].

30. We note that the term ‘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

33. 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, by having it proceed ‘on the papers’.

34. 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)

35. On 1 February 2023 the Tribunal 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. In addition having considered the matter 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

FLE’s written material

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

1. The application to the Tribunal attaching the Notice to Disqualified person and reasons / grounds as set out at [15] above.

2. A Statement of FLE filed 28 July 2022.

3. An Occupational Therapy (OT) summary / assessment D Pritchard dated 21 July 2022.

4. Character reference vice president of local sporting club ‘A.B.’ dated 13 July 2022.

5. Further statement of FLE dated 7 November 2022.

6. Character reference ‘J.J.’ dated 1 November 2022.

7. Character reference from FLE’s partner (‘N.K.’) dated 3 November 2022.

Children’s Guardian’s written material

37. The Children’s Guardian filed written submissions on 9 December 2022.

38. They also filed and served two bundles of evidence / material:

1. Respondent’s Evidentiary Bundle filed 4 February 2023 containing criminal record and Court Brief material responses to notices issued under section 31 of the Act

2. Respondent’s Bundle of Evidence in respect of Stay Application filed 26 July 2022.

39. 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.

40. FLE’s disqualifying offence arises in circumstances whereby he was intoxicated and entered a private premises and got into bed where a woman not previously known to FLE was asleep. FLE began to cuddle the woman and placed his arms around her and his hands under her shirt and fondled her breasts. The woman (the female victim) was of the mistaken belief that FLE was her husband having returned home from being out fishing. FLE began kissing the woman on her lips and rolled on top of her and she reported that she could feel what she believed was FLE’s erect penis pressing against her body. At this point the woman realised that FLE was not her husband and got out of bed saying she was going to the toilet. The woman ordered FLE out of the house and was reportedly extremely upset and shocked.

41. FLE later attempted to enter two other premises / residences of female victims with no further significant incident occurring. However in respect of one of the residences FLE pushed the front door backwards towards the occupant as she tried to close the door causing a small cut to her mouth and bruising and swelling.

Written submissions

42. FLE set out his understanding of the circumstances of his offending in 2002 and his development since that time. The details are set out below in our s 30 consideration. FLE submitted that:

These charges that have been brought up denying this request happened almost 20 years ago, in my early 20’s. I now have matured, have my own family (three children 18yrs, 14yrs & 11yrs) and have been with my partner for over 22 years.

I have attended counselling and fulfilled community service obligations as requested as part of my bail requirements, paid fines and paid thousands of dollars in victim’s compensation. I no longer drink alcohol and believe that I am a rehabilitated man and have tried to put these instances behind me. I am no threat to the community, being adult or child.

43. In his signed statement FLE referred to other aspects of his personality and behaviours which were evident at the time of his offending. FLE referred to:

I’m the first to admit that I was a bit of a wild man when I was younger. I was invincible and didn’t think that was a problem or that I had a problem. It wasn’t until something bad happened and at the time it made me wake up and admit that I did, and I realised that I needed to change my ways. I am very remorseful for my past actions.

When my partner got pregnant, I decided I had to change my ways and become the family man I wanted to be. Having children was the best thing that ever happened to me, and I am a changed man. …

I think letting (a) few of my wild mates move on and staying off alcohol has been the best changes I have made in my life.

44. The Children’s Guardian submitted that the likelihood of FLE reoffending and engaging in behaviour which might pose a risk to children, is low. This was because FLE had not reoffended in the intervening two decades and that his offending (whilst serious) did not involve children.

45. In addition the Children’s Guardian submitted that on the basis of the material before the Tribunal, the Tribunal would find that FLE does not pose a real and appreciable risk to the safety of children and the statutory presumption has been displaced. This submission was based on the relatively low seriousness of the disqualifying offence (compared to the full suite of disqualifying offences), and the lack of any connection of the offending with children, the recovery from prior alcohol consumption issues by FLE, and the passage of 20 years since the disqualifying offence and 13 years since any offending of any sort has taken place.

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

Consideration

47. 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

48. 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.

49. FLE’s application to the Tribunal is brought about by a Notice to Disqualified Person. The offence leading to that notice (assault with act of indecency) is objectively serious and carried a penalty of a maximum of five years imprisonment. This specific offence has since been repealed. However taking into account the actual elements of the offence in the circumstances for which FLE was charged, and whilst the offence is serious we agree with the Children’s Guardian submission that in FLE’s circumstances of offending, the offence is at the lower end of seriousness, and having regard to the penalty imposed by the Court. (12 Months imprisonment wholly suspended on entering a supervised good behaviour bond for 12 months).

50. FLE’s behaviour did not appear to be deliberate and his level of intoxication (whilst not mitigating the offence in any way) appears to have been a significant contributing factor to the offences.

51. FLE committed other offences, which may have resulted in a risk assessment had there not have been a disqualifying offence. The offences were in the nature of: enter enclosed lands without lawful excuse and two counts of common assault. Fines, Community Service Orders and a separate two year good behaviour bond were imposed by the Court for these matters.

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

52. It is clear that the matters referred to under s-30 (1) (a) occurred some time ago, specifically in July 2002 almost 21 years ago.

53. FLE’s offending also includes offences in 1998 exposing himself (buttocks) to passing traffic and in 2009 being found asleep in the garage of a residence partially undressed. In both instances FLE was reported as being intoxicated. He received fines of $200 per offence. In 2000 FLE was fined $1,000.00 and had his licence suspended for two years for high range drink driving. Some minor public nuisance offences (summary offences) arose in 2004 with fines or non-conviction outcomes. These matters are considered minor.

54. The last offence occurred in 2013 when FLE was breached for entering prescribed premises due to his level of intoxication.

55. FLE’s partner has corroborated FLE’s assertion that he has changed his behaviours and now rarely drinks as it does not align with his lifestyle as a parent and his children’s activities. She confirmed that the major change occurred after she fell pregnant with their second child.

56. Corrective Services records confirm FLE attended drug and alcohol courses after the disqualifying offence. FLE stated that he also attended counselling.

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

57. FLE was 23 years of age at the time of the disqualifying offence.

(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.

58. There were two victims arising from FLE’s offending in 2002 and the exact age of the victims is unknown. The victims were adults and one was a married woman. It appears that there was no pre-existing relationship between FLE and these female victims.

59. The female victim of the disqualifying offence was clearly vulnerable as she was a woman and FLE is a male who it appears entered her home and was possibly initiating sexual intercourse or foreplay with the victim who believed that FLE was her husband. Her lack of prior knowledge of FLE and the unprovoked and random nature of the crime noting that he entered her home at night and got into her bed 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.

60. The difference in age between the applicant and the victim in the disqualifying matter is unknown because the victim’s age is unknown. FLE and the victim did not know each other.

61. The victim in the other matter is of unknown age and also unknown to FLE. but was an adult woman who succeeded in preventing FLE entering her home.

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

62. In respect of both the disqualifying offence and the other victim matters, the victims were not children.

(g) The person's present age.

63. FLE is 44 years 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.

64. The applicant does have a criminal record in respect of the disqualifying offence and the related offences as set out above. These matters as set out above are objectively serious. However as also noted above the offences resulted in penalties at the lower end of the available range, the disqualifying matter resulting in a 12 month sentence of imprisonment suspended for 12 months where a maximum of five years imprisonment was available to the Court.

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

65. If FLE was to repeat his behaviour from the evening of the disqualifying offence the impact on any children exposed to such offending would be significant. The offences had no impact on children as a result. The other offences including summary offences could have an impact on children but the Tribunal notes that there is no evidence that this had occurred or that FLE’s behaviour has ever caused any risk of harm to children.

66. The Tribunal notes that the significant matters all occurred in July 2002 when FLE was intoxicated. Whilst at that time there was evidence of a pattern of behaviour including excessive intoxication, in the intervening years and especially in the last decade, no adverse matters have arisen of equal magnitude or significance.

67. FLE has expressed remorse for his actions and has since largely abstained from drinking alcohol and has shown insight into his past offending and sought and achieved positive change.

68. He plead guilty to all matters. FLE 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.

69. The Tribunal is unaware of any matters relevant to FLE under this provision.

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

70. FLE has tendered character references in support of his application as outlined above. Of some weight is the reference from his partner as discussed above. All references attest to FLE’s pro-social factors such a minimal or nil alcohol consumption, his family life orientation based around parenthood including involvement with his three children.

71. The reference from the children’s sporting club vice president provides context and detail around his volunteer and community based work. It has since been confirmed that the WWCCC is not required by FLE for his stated purpose but that he has continued with his Enabling Order application in case a different barrier arises in future.

72. A letter from FLE’s O.T. refers to a lack of engagement in behaviour that would preclude FLE from obtaining a WWCCC.

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

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

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

74. The Children’s Guardian noted in submissions that FLE had not come to attention of the Department of Communities and Justice (or its predecessors) in respect of child protection / welfare / risk of harm matters.

75. NSW Police have no records of FLE being named in apprehended violence orders and they do not hold any COPS records that refer to FLE in the context of violence, child abuse or sexual offences.

Consideration

76. 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, all matters in the current case are settled, in that the Courts had made a positive finding on the conduct and FLE does not dispute that finding.

77. 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).

78. We note that in the current matter we are not required to make positive findings on events, 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).

79. In these proceedings our substantive role is to assess risk, and whether specifically FLE 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.

80. We note as we have observed previously 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 set out at [90] above 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.

81. In respect of the criminal allegations 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

82. Based on a consideration of all of the evidence, and noting the guidance from CXZ we are not satisfied that FLE 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.

83. Other than the serious nature of his offending in July 2002, and the impact such offending would have if it involved or was otherwise observed by children, there was no evidence of any direct risk to children in FLE’s behaviour. The exposure matter could pose a risk but in the context that it occurred on the side of a road directed at all passers by showing his buttocks only, we determine that FLE’s behaviour on that occasion does not create any significant risk of harm. In our view the harm would likely be less than that caused by a streaker at a sporting event (fully exposed) observed by persons including children.

82. However in making this observation we note that if his disqualifying behaviour occurred in the presence of children then it would be likely to cause significant harm to them.

83. 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

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

87. 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.

88. 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.

89. Particular regard would be had to the nature of the    conduct of FLE in July 2002 and that his intoxication was a factor. In addition the evidence of lack of intoxication at least in the last 10 years and significant abstinence from alcohol would also be considered.

90. 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).

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

92. We note that 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.

93. In FLE’s situation a reasonable person would be aware of the circumstances of the offence and would base their determination 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.

94. We note that the Children’s Guardian submitted that the reasonable person would also know that there was no evidence to suggest that FLE had behaved improperly towards children. In addition the Guardian submitted that the Tribunal should be satisfied that a reasonable person would allow their child to have direct contact (unsupervised) with FLE while he was engaged in child related work.

95. 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.

96. We note that the Children’s Guardian referred to the case of ZZ in their written submission supporting the granting of an Enabling Order.

97. 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 FLE’s right to assist in the sporting development of young people including members of his own family to benefit the health of children through exercise and sporting matters now or in the future, contrasted with the protection of children, are in this instance complementary and in the public interest, as the issuing of a clearance would not pose an unjustified risk to the safety of children.

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

99. 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 FLE’s level of risk is deemed to be equal to that of any member of the community.

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

Conclusion

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

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

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

104. 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 2002 conviction of Assault with act of indecency s 61L 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 (FLE) 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: 17 April 2023