FME v Children's Guardian
[2023] NSWCATAD 69
•23 February 2023
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: FME v Children’s Guardian [2023] NSWCATAD 69 Hearing dates: The application is determined on the papers. Date of orders: 23 February 2023 Decision date: 23 February 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: L Andelman, Senior Member
E Hayes, General MemberDecision: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing in this matter.
2. Pursuant to s. 28(1) of the Child Protection (Working with Children) Act 2012, the NSW Civil and Administrative Tribunal declares that FME is not to be treated as a disqualified person for the purposes of the Act in respect of the offence of take/detain person in company with intent to obtain advantage contrary to s. 86 of the Crimes Act 1900 of which FME was convicted on 5 December 2006.
3. Pursuant to s. 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant a Working with Children Check Clearance to FME forthwith.
Catchwords: ADMINISTRATIVE LAW - working with children check clearance – disqualified person – Children’s Guardian supports orders to declare applicant not to be treated as a disqualified person and to be granted a Working with Children Check Clearance
Legislation Cited: Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Category: Principal judgment Parties: FME (Applicant)
Children’s Guardian (Respondent)Representation: Solicitors:
Crown Solicitor (Respondent)
File Number(s): 2022/00219856 Publication restriction: 1. 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 is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
2. It is noted that 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
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On 27 July 2022 the applicant applied for Working With Children Check Clearance (Clearance) pursuant to s28 of the Child Protection (Working with Children) Act 2012 (NSW) (Act). The applicant sought that she is not to be treated as a disqualified person for the purposes of the Act in respect of the child-related conviction for ‘take/detain person in company with intent to obtain advantage’ (the Disqualifying Offence) and that the Children's Guardian grant the applicant a Working with Children Check Clearance (Clearance).
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The Children's Guardian supports the making of the orders sought by the applicant. On 23 February 2023 we made orders granting a Clearance to the applicant. What follows are brief reasons.
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On 5 December 2006, the applicant pleaded guilty to take/detain person in company with intent to obtain advantage. Because the victim of one of those offences was a child, the applicant is a disqualified person pursuant to s18(1)(a) and cl 1(1)(m) of Schedule 2 to the Act.
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Pursuant to s18(1)(a) of the Act, the Children's Guardian is unable to grant a Clearance to a ‘disqualified person’. The Tribunal may make an ‘enabling order’ declaring that they are not to be treated as a disqualified person for the purpose of the Act in respect of a specified offence, s28(1).
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In determining whether or not to make an ‘enabling order’ there is a presumption that the person poses a risk to the safety of children, s28(7).
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In determining whether the Applicant poses a risk to the safety of children, the Tribunal has regard to the matters set out in s30(1) and s30(1A) of the Act.
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The following facts are taken from evidence relied on by the Children’s Guardian as set out in paragraphs [51] to [61] of her submissions.
51. The Applicant is a 36-year-old woman (date of birth redacted). She has three biological children (initials and dates of birth redacted).
52. On 18 May 2004, an Emergency Care and Protection Order was made in relation to (the Applicant’s eldest child) following allegations that the Applicant's then de facto partner (initials redacted) had bitten and hit (the Applicant’s eldest child) and the Applicant had permitted contact between (the Applicant’s eldest child) and (the Applicant’s ex-partner) to continue.
53. On or about 17 February 2005, an order was made for the Director-General of DoCS (as DCJ was then known and structured) to assume care of (the applicant’s second eldest child).
54. On 30 September 2005, the Applicant was charged with three counts of take/detain person in company with intent to obtain advantage pursuant to s. 86 of the Crimes Act 1900. The circumstances of these charges can be summarised as follows:
a. On 28 September 2005, the Applicant and (the Applicant’s ex-partner) had been staying at (the Applicant’s ex partner’s) grandfather's residence in (suburb redacted) for approximately one month. On that day, (the Applicant’s ex-partner’s) mother and 12-year-old half-sister drove from Sydney to visit them.
b. In the evening, an argument broke out between (the Applicant’s ex-partner) and his grandfather resulting in (the Applicant’s ex-partner) assaulting his grandfather. The Applicant removed (the Applicant’s ex-partner’s) half-sister from the area to separate her from the violence.
c. While the Applicant was outside, (the Applicant’s ex-partner) struck his grandfather to the head at least twice and used a hammer to strike him to the arm. (The Applicant’s ex-partner’s) mother attempted to collect (the Applicant’s ex-partner’s) half-sister, but (the Applicant’s ex-partner) intervened and indicated that his mother was his "prisoner".
d. (The Applicant’s ex-partner) then detained his grandfather, mother and half-sister outside on the property, directing the Applicant to obtain water for his mother when requested.
e. (The Applicant’s ex-partner’s) mother indicated that she needed to use the bathroom, to which (the Applicant’s ex-partner) insisted that the Applicant go with her to stand guard. (The Applicant’s ex-partner) imposed the same requirement when his grandfather needed to use the bathroom. During the course of the detention, (the Applicant’s ex-partner) threatened his mother and grandfather with a machete.
f. (The Applicant’s ex-partner’s) mother indicated to (the Applicant’s ex-partner) that his half-sister required medical attention. (The Applicant’s ex-partner) began to pack things into the car and attempted to nail the doors of the property shut. Ultimately, (the Applicant’s ex-partner), his mother, his half-sister and the Applicant travelled in (the Applicant’s ex-partner’s) mother's car back to Sydney.
g. On 29 September 2005, the following day, the matter was reported to police and (the Applicant’s ex-partner) and the Applicant were arrested. The Applicant was ultimately charged with three counts take/detain person in company with intent to obtain advantage (in relation to (the Applicant’s ex-partner’s) grandfather, (the Applicant’s ex-partner’s) mother and (the Applicant’s ex-partner’s) half-sister).
55. On 1 February 2006, the Applicant gave birth to (the Applicant’s youngest child). At that time, the Hospital at which the Applicant gave birth expressed no concerns for the Applicant's care of (the Applicant’s youngest child).
56. On 5 December 2006, the Applicant pleaded guilty to one of the three charges, with the other two charges being taken into account on a Form 1. The Applicant received a 2 year good behaviour bond, without proceeding to conviction pursuant to s. 10 of the Crimes (Sentencing Procedure) Act 1999.
57. Because a victim of the Applicant offence was a child, the Applicant is a disqualified person pursuant to cl. 1 (1 )(m) of Schedule 2 to the WWC Act.
58. On 18 June 2009, two of the Applicant's children - (the Applicant’s eldest child and second eldest child) - were placed in the care of the Applicant's parents by orders of the Children's Court, with contact with the Applicant to occur at the discretion of the Applicant's parents and subject to the children's wishes. This resolved the care of those children following the Emergency Care and Protection Order identified at [52] above.
59. On 30 May 2022, the Applicant applied for a Clearance in order to become authorised through KARI to provide care to a young person who had self-placed with the Applicant.
60. On 4 July 2022, the Guardian notified the Applicant that she was a disqualified person within the meaning of the WWC Act and that her Clearance was refused.
61. KARI have since indicated that due to the refusal of the Applicant's clearance, the young person is unable to reside at the Applicant's home and has therefore been placed in respite accommodation.
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The Tribunal accepts the submissions made by the Children Guardian that the applicant's conduct during the commission of the disqualifying offence was (having regard to the particular circumstances of the offence) in the lower range of seriousness within the meaning of the Act and that a reasonable person would permit their child to have direct, unsupervised contact with the applicant in the course of any child-related employment and it is in the public interest for the applicant to be granted a Clearance.
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Having considered the evidence before the Tribunal as well as the factors set out in s30(1)(a) to (k) as well as the reasonable person test and the public interest test set out in s30(1A) the Tribunal is positively satisfied that the applicant does not pose a risk to the safety of children.
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The correct and preferable decision is to set the decision of the Children’s Guardian to refuse the applicant a Clearance and grant the applicant’s application.
Orders
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The Tribunal makes the following Orders:
Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing in this matter.
Pursuant to s. 28(1) of the Child Protection (Working with Children) Act 2012, the NSW Civil and Administrative Tribunal declares that FME is not to be treated as a disqualified person for the purposes of the Act in respect of the offence of take/detain person in company with intent to obtain advantage contrary to s. 86 of the Crimes Act 1900 of which FME was convicted on 5 December 2006.
Pursuant to s. 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant a Working with Children Check Clearance to FME forthwith.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 27 March 2023
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