FMI v Children's Guardian

[2023] NSWCATAD 9

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FMI v Children's Guardian [2023] NSWCATAD 9

Hearing dates:

Section 50(2) Civil and Administrative Tribunal Act 2013 (NSW) order made 29 September 2022

Date of orders:

09 January 2023

Decision date:

09 January 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Anderson, Senior Member
Prof P Foreman, General Member

Decision:

1) It is declared that the applicant is not a disqualified person for the purposes of section 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of indecent assault contrary to section 61E of the Crimes Act 1900 (NSW) entered on 13 December 1992 at the District Court of New South Wales at Wollongong.

2)The application for an enabling order under section 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW) dated 2 August 2022 is granted.

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

4) 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. 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.

Catchwords:

ADMINISTRATIVE LAW - Working with Children Check Clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) - where disqualifying offence under former 61E(1) of the Crimes Act 1900 (NSW) indecent assault – assessment of risk posed by applicant - whether the applicant has proven he is not a risk to the safety of children - where onus of proof discharged by applicant - where enabling order granted.

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)

Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)

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

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

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Children and Young Persons (Care and Protection) Regulation 2012 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Evidence Act 1995 (NSW)

Family Law Act 1975 (Cth)

Cases Cited:

ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1

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

BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126

BFX v Children’s Guardian [2014] NSWCATAD 115

BGX v Children’s Guardian [2014] NSWCATAD 173

BHL v Children’s Guardian [2015] NSWCATAD 46

BHY v Children’s Guardian [2015] NSWCATAD 91

BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164

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

BKN v Children’s Guardian [2014] NSWCATAD 213

BKP v Children's Guardian [2014] NSWCATAD 207

BKV v Children’s Guardian [2015] NSWSC 1602

BKV v Children’s Guardian [2015] NSWCATAD 65

BLD v Children’s Guardian [2015] NSWCATAD 2

Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457

BPA v Children’s Guardian [2015] NSWCATAD 36

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

BYR v Children’s Guardian [2013] NSWADT 310

Carr v Simnovic (1980) 26 SASR 263

CHB v Children’s Guardian [2016] NSWCATAD 214

CHT v Children’s Guardian [2016] NSWCATAD 203

Children’s Guardian v BQJ [2016] NSWSC 869

Children’s Guardian v CKF [2017] NSWSC 893

CJT v Office of the Children’s Guardian [2016] NSWSC 738

Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27

Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205

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

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

CXZ v Children’s Guardian [2020] NSWCA 338

DHB v Children’s Guardian [2018] NSWCATAD 123

Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856

Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32

LA v Commissioner for Children and Young People [2012] NSWSC 1454

La Macchia v Minister for Primary Industry (1986) 72 ALR 23

M v M [1988] HCA 68; 166 CLR 69

Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173

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

Re A Solicitor’s Clerk [1957] 1 WLR 1219

Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88

Re Sophie (No 2) [2009] NSWCA 89

Roberts v Balancio (1987) 8 NSWLR 436

Robertson v City of Nunawading [1973] VR 819 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124

SS v Department of Human Services (NSW) [2010] NSWDC 279

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

T v H and Ors [1985] NSWSC, Unreported 19/12/1985

Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

FMI (Applicant)
Children’s Guardian (Respondent)

Representation:

Advocates/Counsel:
FMI (Applicant in person)
S Munnoch (Respondent)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2022/00227680

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 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.

 Decision under appeal 

Court or tribunal:

Civil and Administrative Tribunal

Jurisdiction:

Consumer and Commercial Division

Citation:

NA

Date of Decision:

03 August 2022

Before:

J Ringrose, General Member

File Number(s):

RV 22/06325

Reasons for Decision

Introduction

1. This is an application seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”). The Children’s Guardian informed the applicant, who is referred to as “FMI” in these proceedings, on 22 July 2022 that due to being charged with, and subsequently being found guilty of, a disqualifying offence as specified in clause 1(1)(d) of schedule 2 of the Act (being indecent assault under the former section 61E(1) of the Crimes Act 1900 (NSW)), he was not eligible to be granted a Working with Children Check Clearance. The applicant was sentenced, following conviction in December 1992, to a good behaviour bond for a period of 3 years, to appear at court for sentencing, if called upon, and to pay a fine of $1,000.

2. An order has been made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication and disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal. 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. A further similar order will be made as part of this decision. The naming of the applicant is likely to identify the female child victim. The interests of justice are better served by the prohibition of that publication and prohibiting disclosure than by promoting the open justice principle. This tipping of the scales of justice in favour of prohibition of publication of identifying information is recognised by the statutory prohibitions in legislation prohibiting disclosure of the identity of children relating to criminal proceedings involving a child victim: section 578A of the Crimes Act 1900 (NSW); section 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

3. The applicant was advised of the rejection of his application for a Working with Children Check Clearance by the Children’s Guardian on 22 July 2022 and the application for an enabling order under section 28 of the Act was filed on 2 August 2022.

4. On 29 September 2022, the Tribunal made an order pursuant to section 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing for this matter. That means, this matter proceeds ‘on the papers’.

5. The applicant seeks an enabling order under section 28 (1) of the Act which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The applicant wishes to work in transport services for children and an enabling order would permit the applicant to work with children in any child-related work in either paid or voluntary capacities even though the applicant seeks the order for a limited purpose. The respondent supports the application for an enabling order and the grant of a Working with Children Check Clearance. Only the Tribunal has the power to grant an enabling order.

6. The offence which resulted in a good behaviour bond and fine occurred in 1992. The District Court of New South Wales recorded a formal conviction for the conduct which was the subject of the second charge (“the disqualifying offence”). The applicant was found not guilty of the conduct subject of the first charge. The details of the offence and the charges are recorded later in these reasons.

7. The conclusion of the Tribunal is that the applicant should obtain an enabling order to receive a Working with Children Check Clearance because he has discharged the onus to prove that he is not a risk to children. The reasons for this decision are set out in more detail in the following paragraphs.

8. The discussion which follows this part of the reasons is repetitive of matters set out in other judgments of the Tribunal, but is set out again in these reasons in order to assist the parties to understand the basis for the decision, including how the law has been applied and the consideration of the evidence provided. Additionally, these reasons are provided in recognition that a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126; BKE v Office of the Children’s Guardian; Children’s Guardian v BQJ [2016] NSWSC 869.

The Evidence

9. The documentary evidence provided on behalf of the applicant and the respondent, and received by the Tribunal, includes statement by the applicant, his general practitioner, a psychologist, and a number of personal references. Documents were filed by the respondent on 5 September 2020 and 7 October 2022.

10. A statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons.

Legislative provisions

11. The Act came into force on 15 June 2013.

12. The application will comply with the Act provided that the matters which must be considered in section 30 of the Act are taken into account: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

13. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a Working with Children Check Clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act.

14. The safety welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act.

15. There is no relevant definition of “child abuse” contained in the Act.

16. However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children’s Guardian [2014] NSWCATAD 115 at [19]-[30], an offence of “child and young person abuse” has been included in section 227 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The offence is as follows:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.

Maximum penalty: 200 penalty units”

17. In BFX v Children’s Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows:

“The ordinary meaning of “child abuse” in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987.”

18. This working definition was arrived at after considering the ordinary dictionary meaning of the words, combined with consideration of the various statutes including the definition of abuse contained in section 4 (1) of the Family Law Act 1975 (Cth).

19. The definition of "risk to the safety of children" is a reference to a real and appreciable risk to the safety of children: section 5B of the Act.

20. The applicant is, relevantly for the purposes of the Act, now an adult and was an adult, aged over 18 years, at the time of the offence. The offences with which the applicant was charged and convicted falls within clause 1(1)(d) of Schedule 2 of the Act. Therefore, the applicant is treated as a “disqualified person”. By reason of section 18(1)(a) of the Act the Children’s Guardian must not grant a Working with Children Check Clearance to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as “disqualified persons”, in the same section of the Act.

21. The applicant seeks a Working with Children Check Clearance to work with children because he wants to be permitted to work where he may come into contact with children and requires such a clearance.

22. An enabling order is therefore sought pursuant to section 28 of the Act which provides in this matter:

“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.

23. The respondent, it is to be observed, is a necessary party to the proceedings pursuant to section 28 (4) of the Act. The Children’s Guardian is not permitted to grant an enabling order and must refuse the application because of the conviction which renders the applicant a disqualified person.

24. A person is not permitted to engage in “child-related work” unless they hold a Working with Children Check Clearance: see section 8 of the Act. There is no issue in this matter that the applicant wishes to potentially engage in child-related work which therefore requires that the applicant obtain a Working with Children Check Clearance.

Standard of Proof and Onus of Proof

25. It can be seen from section 28 (7) of the Act that is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. The standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J at [34].

26. Untested allegations and the manner in which the Tribunal is to approach them has been considered in Children’s Guardian v CKF [2017] NSWSC 893 and by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174. In CXZ v Children’s Guardian [2020] NSWCA 338, the Court of Appeal confirmed the approach to be taken in assessing risk.

Required Considerations

27. The Tribunal must consider the matters under section 30 of the Act when making a determination under section 28 of the Act. Those matters are relevantly for this application:

“30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(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.

(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.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Note. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.”

28. The Children’s Guardian received information pursuant to section 31 of the Act from various government agencies, including the police and the courts. That information was tendered in evidence.

29. It must also be observed that section 28(8) of the Act provides that an enabling order may not be made subject to conditions. This is a departure from the predecessor legislation and the case law which emanated from the repealed Child Protection (Prohibited Employment) Act 1998 (NSW): BKE v Office of the Children’s Guardian, at [4], [25], [27].

30. The applicant is also required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act.

The Issues

31. The Tribunal is to determine whether the applicant has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut presumption that he poses a risk the safety of children: section 28 (7) of the Act; BKE v Office of the Children’s Guardian [2015] NSWSC 523, at [25]. The Tribunal considered the totality of the evidence before it in order to assess whether the presumption has been rebutted. In other words, the Tribunal reviewed the evidence provided by the respondent as well as the evidence provided by the applicant in determining whether or not the applicant poses a risk to the safety of children.

32. In determining whether the applicant does pose a risk to children it is accepted that the risk must be “a real and appreciable risk”: see BYR v Children’s Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was); BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J esp at [26], [27].

33. In BKE v Office of the Children’s Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[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).

...

[31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

[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).

[33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

34. In the matter before the Tribunal the applicant has been convicted of an offence referred to in Schedule 2 of the Act.

35. However, in Children’s Guardian v CKF [2017] NSWSC 893 Justice Davies agreed that the correct approach to risk is as outlined by the High Court in M v M and the discussion referred to by Justice Beech-Jones extracted earlier in these reasons. In Office of the Children’s Guardian v CFW [2016] NSWSC 1406, Justice Harrison considered what use could be made of events where the Tribunal had a lingering doubt or where suspicion remains. That would appear to be of little relevance in this particular matter. In addition, the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 considered that a number of similar allegations, in different locations, and from apparently entirely independent complainants is material upon which the Children’s Guardian and the Tribunal are entitled to act, or more practically, may lend some weight to other risk factors. CXZ v Children’s Guardian [2020] NSWCA 338 confirmed the correct approach to assessing risk.

36. The Tribunal is required to consider the evidence which is presented by the parties in accordance with the Act. The determination of the weight which can be given to any particular allegation or evidence, despite or because of the source from which it emanates, is ultimately a matter for the Tribunal.

Other matters

37. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), which is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: sections 38 Civil and Administrative Tribunal Act 2013 (NSW); Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

38. The restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offence which resulted in the convictions: section 38 of the Civil and Administrative Tribunal Act 2013 (NSW). The circumstances surrounding any other criminal charges or reports of behaviour which may impact upon the risk assessment are also able to be considered, if considered appropriately relevant, for the same reasons.

39. The Administrative and Equal Opportunity Division (“AEOD”) of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the Civil and Administrative Tribunal Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

40. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61], and R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130]. The applicant has already been punished for the crime.

Consideration of the evidence

41. The evidence received by the Tribunal is required to be considered under each of the subsections of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. Some of the subsections may be thought less relevant and may be given less weight than others. However, each of the subsections is to be considered. That evidence is now set out under each of the relevant statutory provisions as subheadings in these reasons.

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

42. The disqualifying offence occurred in 1990.

43. The applicant stood trial for 2 charges of indecent assault contrary to section 61E (1) of the Crimes Act 1900 (NSW). The applicant was found not guilty of the conduct the subject of the first charge.

44. The complainant victim was a 15-year-old female who was employed by the applicant in his shop. The complainant commenced employment with the applicant in late 1990.

45. After about one week working with the applicant the complainant stated that the applicant touched her on her right breast 3 times. This incident is alleged to have occurred in the applicant’s office in the shop, which was located near the dining area and kitchen.

46. The complainant said that the applicant was sitting down at his desk when he reached over to touch her on the breast with his finger. The applicant stated that the complainant had to come in to work on a Thursday and was pointing at her. The complainant took a step back, before the applicant touched her 2 more times. The applicant said at his trial that this touching was accidental. The applicant also stated that this was accidental when asked by the police. The complainant gave evidence that she did not think the applicant meant to touch her on the breast.

47. The conduct which led to the second charge occurred couple of weeks after the first alleged incident. The complainant had finished her shift but had not left the shop when the applicant squeezed her right breast and asked “how does that feel?”. About 2 weeks later the complainant attended the shop with a recording device which recorded a conversation between them. It is assumed that the applicant did not know he was being recorded. The complainant said “I don’t like you touching my boobs” and “why do you keep touching me on the breasts all the time.” The applicant responded “no worries, I’m only joking.”

48. The applicant received a conviction for the conduct leading to the second charge, for which he received a deferred sentence on condition that he be of good behaviour for 3 years, appear at court for sentencing if called upon, and a fine of $1000. It is submitted by the respondent that the punishment indicates that the offence is towards the lower end of seriousness.

49. The applicant has shown apparently genuine remorse for his actions.

50. Conduct leading to the first charge was apparently accepted as accidental.

The period of time since those offences or matters occurred and the conduct of the person since they occurred

51. The offence occurred in 1990. This is more than 30 years ago.

52. The applicant was convicted in December 1992. The applicant has said he is remorseful and apologised for his behaviour. The Tribunal is not aware of any other conduct of the applicant which would be of concern.

The age of the person at the time the offences or matters occurred

53. The applicant was aged 32 years at the time of the disqualifying offence. The applicant was not immature and should have known what he was doing was wrong.

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

54. The victim of the disqualifying offence was aged 15 years.

55. The victim was vulnerable because of her age and the relationship she had with the applicant who was in a position of authority over her due to her employment status.

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

56. The difference in age between the child victim and the applicant is 17 years. The child victim was the employee of the applicant.

Whether the person knew, or could reasonably have known, that the victim was a child

57. The applicant knew that the victim was a child.

The person’s present age

58. The applicant is currently aged 64 years.

The seriousness of the person’s criminal history and the conduct of the person since the offences occurred

59. The applicant was found guilty of the disqualifying offence which is considered to be at lower end of seriousness due to the penalty imposed.

60. Apart from one driving offence the applicant has no known criminal history before or after this offence.

61. The applicant has not been subject of an apprehended violence order.

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

62. The Children’s Guardian submitted that there is no reason to believe that the conduct subject of both charges would be repeated at a future point in time. A repetition of the conduct is highly unlikely. This is accepted as a likely prediction based upon the applicant’s history.

63. The applicant put forward written statements from appropriately qualified professionals in support of his application which state that he does not display any signs of risk to himself or other persons. These opinions are accepted.

64. The applicant has put forward some other character references which are also accepted.

65. As noted in DHB v Children’s Guardian [2018] NSWCATAD 123 (DHB) at [42], whilst such references cannot provide an opinion about an applicant’s level of risk, their observations can provide an insight into character. In that matter (DHB) there was 52 years of comparatively incident free behaviour post-conviction for the disqualifying offence. In this matter the risk is low due to the length of time since the offending behaviour and subsequent lack of criminal history, which has been referred to earlier in these reasons.

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

66. The applicant has no other orders in existence which concern the applicant.

Any information given by the applicant in, or in relation to, the application

67. The applicant has provided relevant information to the Tribunal.

68. The applicant has stated that he wishes to work as a school crossing supervisor. The applicant suffered a workplace injury in 2019 which would not impede him in carrying out this position.

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

69. There is no additional relevant information.

Any other matters that the Children’s Guardian considers necessary

70. The Children’s Guardian made submissions addressing matters the Children’s Guardian considers necessary.

71. Relevantly, there are no child protection concerns raised by the Children’s Guardian.

72. The applicant has been found guilty of a relevant offence which renders him a disqualified person for the purposes of the Act. The harm caused by the behaviour of the applicant was outside reasonable community norms.

73. The onus is on the applicant to show that he is not a real and appreciable risk to the safety of children.

74. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

70. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.

71. The applicant has discharged the onus to prove that he does not pose a risk to the safety of children in the future. On the evidence received, the Tribunal can be satisfied that the applicant does not pose a risk to children.

72. As the applicant has discharged the onus to prove that he not a risk to the safety of children, it is necessary to consider whether the applicant meets the requirements under section 30(1A)(a) or (b) of the Act. The Tribunal has to consider whether 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. The Tribunal then has to also determine whether it is in the public interest to make the order.

73. The reasonable person test is an objective test. The reasonable person is taken to have knowledge of the disqualifying offence, surrounding circumstances of the offence, the applicant’s criminal history, the length of time since the offence and any expert assessment made of the applicant. A reasonable person would allow the applicant direct contact with children that is not directly supervised by another person while he engages in child-related work.

74. The public interest test requires that the Tribunal, before making an order enabling the applicant to work with children, finds that it is in the public interest to make such an order. There is a public interest in the exercise of knowledge and skill, the use of which may conduct to the public benefit and it is in the public interest for a person to be able to exercise their capacity to work, whether that is voluntary or paid.

75. The applicant proposes to utilise his skills and experience for the benefit of others: it is clearly in the public interest for him to do so.

Conclusion

81. In all the circumstances, based on the material before it, the Tribunal is satisfied consistent with the presumption which has been discharged by the applicant, that the applicant does not pose a risk to the safety of children and should be granted an enabling order under section 28(1) of the Act. The Tribunal is satisfied that the existence of a real and appreciable risk to the safety of children has been disproven.

Orders

82. The orders of the Tribunal are that:

1. It is declared that the applicant is not a disqualified person for the purposes of section 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of indecent assault contrary to section 61E of the Crimes Act 1900 (NSW) entered on 13 December 1992 at the District Court of New South Wales at Wollongong.

2. The application for an enabling order under section 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW) dated 2 August 2022 is granted.

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

4. 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. 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.

**********

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: 09 January 2023