FMO v Children's Guardian

[2023] NSWCATAD 85

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FMO v Children’s Guardian [2023] NSWCATAD 85

Hearing dates:

On the papers

Date of orders:

06 March 2023

Decision date:

05 April 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

E Bishop SC, Senior Member
Emeritus Prof. P Foreman AM, General Member

Decision:

(1) It is declared that the applicant is not to be treated as 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 aggravated indecent assault contrary to section 61M of the Crimes Act 1900 (NSW) to which the applicant pleaded guilty in the Local Court on 13 June 2019 and for which a 12 month Conditional Release Order was made at Parramatta District Court on 7 August 2019 without a conviction being recorded.

(2) The application for an enabling order under section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) dated 25 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:

CHILD WELFARE – working with children – clearance – application – disqualifying offence – enabling order – circumstances of offence – discharge of onus

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW), ss 3, 4, 5, 5B, 18, 23(1), 28, 30, Sch 2

Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a)

Crimes Act 1900 (NSW), s 61M(1)

Cases Cited:

BKE v Children’s Guardian [2015] NSWSC 523

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

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

CRG v Children’s Guardian [2017] NSWCATAD 295

CSW v Children’s Guardian [2017] NSWCATAD 326

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

DAI v Children’s Guardian [2017] NSWCATAD 308

Secretary, Department of Justice v LMB [2012] VSCA 143

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

Category:

Principal judgment

Parties:

FMO (Applicant)
Office of the Children’s Guardian (Respondent)

Representation:

Counsel:
C Nowlan (Applicant)

Solicitors:
Richard Cummins (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2022/00252725

Publication restriction:

Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a) by order of the Tribunal dated 6 March 2023, the publication or broadcast of the name of any person, with the exception of expert witnesses and officers of government agencies, mentioned in these proceedings is prohibited.

REASONS FOR DECISION

Introduction

1. The applicant (FMO) seeks an enabling order following the refusal by the respondent (Children’s Guardian) to grant his application for a Working With Children Check Clearance (Clearance). That application was refused by the Children’s Guardian on the basis that FMO was a “disqualified person” under the Child Protection (Working with Children) Act 2012 (NSW) (the Act).

2. In this matter, the Children’s Guardian supports FMO’s application for an enabling order.

Issues

3. The issues to be determined in this case are whether, having regard to all of the evidence, we are satisfied on the balance of probabilities that:

1. FMO has displaced the presumption that he is a risk to the safety of children;

2. a reasonable person would allow their child to have direct, unsupervised contact with FMO; and

3. it is in the public interest to make an enabling order.

4. For the reasons set out below, we are satisfied that FMO has discharged his onus of proof in respect of each of these issues.

Background

5. The Children’s Guardian succinctly set out the background facts to this matter, summarised as follows.

6. FMO is 52 years old. From 2003 until 2019, he was employed in the linen service at a public hospital in Sydney.

7. On 15 March 2018, FMO was issued a Clearance to expire on 15 March 2023.

8. On 13 June 2019, FMO pleaded guilty in the Local Court to one count of aggravated indecent assault in breach of s 61M(1) of the Crimes Act 1900 (NSW). Aggravated indecent assault is a disqualifying offence specified in Schedule 2 of the Act (the disqualifying offence).

9. On 3 June 2022, FMO re-applied for a Clearance even though his current clearance remained valid for a further nine months.

10. On 23 August 2022, the Children’s Guardian refused FMO’s Clearance application under s 18(1) of the Act. Although the Children’s Guardian refused FMO’s Clearance application under s 18(1), at the time of the decision to refuse the Clearance application, FMO possessed a Clearance. Therefore, the correct source of the power was s 23(1) of the Act, being a power to cancel a Clearance if the Children's Guardian becomes aware that a Clearance holder is a disqualified person. However, for present purposes, nothing turns on this mistake as FMO’s recourse to the Tribunal, and the task of the Tribunal, is unaffected.

11. On 25 August 2022, FMO applied to the Tribunal for review of the decision to refuse his Clearance. Although in the application the precise relief sought is not specified, it is clear that FMO seeks, first, an order under s 28 of the Act declaring that he is not to be treated as a disqualified person, and second, an order granting a Clearance.

The disqualifying offence

12. As outlined above, on 13 June 2019 FMO pleaded guilty in the Local Court to one count of aggravated indecent assault. FMO agreed to a statement of facts for his criminal proceedings which was provided to the Tribunal. The following summary is based on the agreed facts.

13. On Saturday 17 November 2018, FMO, his niece (who we refer to as Anne), and Anne’s partner (who we refer to as Jim), were together at Jim’s house following a party. After midnight, FMO was introduced to Jim’s sister (who we will refer to as Sky), who was 21 years old at the time. FMO, Jim and Jim’s father drank beer together. Sky kissed FMO. After 2am, FMO and Sky went to her bedroom. Her father and Jim saw Sky laying on the bed, with FMO also on the bed, leaning over Sky, apparently kissing her, with his hand on her upper leg.

14. Following this, Sky’s father grabbed FMO and started to assault him. FMO said “I’m sorry” a number of times.

15. Sky is autistic and socially challenged. Her appearance and behaviour are likely to have indicated that she was severely disabled and lacked the capacity to consent to sexual touching.

16. An ambulance was called and FMO was taken to hospital with severe facial and head injuries. Sky was taken to hospital where she indicated that “she had been kissed and a tongue was used during the kiss”. She indicated she did not like it and that nothing further had occurred.

17. In an interview with police, FMO informed police that he had consumed between approximately 16 to 18 beers on 17 and 18 November 2018 and by 2am “he was well affected and drunk”. FMO also agreed that he kissed Sky and was kissed by Sky a number of times. FMO also told police that no one told him that Sky was disabled, he thought she was drunk because he was drunk. Had he known that Sky was disabled, he would not have kissed her.

18. After pleading guilty to the s 61M(1) offence in the Local Court, FMO was ordered to enter into a Community Corrections Order for 18 months with 100 hours of community service. However, on appeal to the District Court, FMO’s conviction was quashed and a 12-month community release order was imposed on him with no conviction recorded.

19. Under the Act, a conviction includes a finding “that a person is guilty of an offence, even though the court does not proceed to a conviction”. Therefore, under the Act, FMO has been convicted of a disqualifying offence.

Relevant law and legal principles

Working with children regime

20. As provided by Part 4 of the Act, the jurisdiction of the Tribunal is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61] (Young JA).

21. The object of the Act, set out in s 3, is to protect children by preventing disqualified persons from engaging in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances.

22. Section 4 of the Act sets out the paramount consideration in the Act’s operation as being for the “safety, welfare and well-being of children and, in particular, protecting them from child abuse”.

23. Section 5(1) of the Act defines “children” as “persons under the age of 18 years” and “conviction” as “includ[ing] a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction”.

24. Section 18 of the Act prohibits the Children’s Guardian from granting a Clearance to persons who have been convicted as adults of certain offences specified in Sch 2 of the Act. Such persons are referred to “disqualified persons”: s 18(1).

25. Section 28 of the Act provides that a disqualified person who has been refused a Clearance because they are disqualified may apply to the Tribunal for an “enabling order”. An enabling order declares that the person is not to be treated as a disqualified person for the purposes of the Act in respect of the offence specified in the order. An enabling order cannot be made subject to conditions: s 28(8).

26. An applicant must fully disclose all matters relevant to the application on an application to the Tribunal for an enabling order: s 28(5).

27. If the Tribunal makes an enabling order, it may order the Children’s Guardian to grant the person a Clearance: s 28(6).

Assessment of risk

28. Under s 28(7) of the Act, the applicant is presumed to pose a “risk to the safety of children” unless proved otherwise on the application before the Tribunal.

29. Section 5B of the Act provides that “[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”. An assessment of risk requires the Tribunal to determine “whether, in all the circumstances, there is a real and appreciable risk that is greater than the risk of any adult preying on the child” as opposed to a “fanciful or theoretical risk”: Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949 at [42]; BKE v Children’s Guardian [2015] NSWSC 523.

30. The Tribunal is required to consider the matters set out s 30 of the Act which provides:

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.

31. Further, under s 30(1A) of the Act, the Tribunal may not make an order which enables a person to work with children unless also 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.

Reasonable person test

32. In VQB v The Secretary to the Department of Justice [2013] VCAT 789 at [36], the reasonable person test was considered and it was there said that the test requires:

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

33. This approach has been endorsed in a number of cases including CSW v Children’s Guardian [2017] NSWCATAD 326 at [136]-[137]; CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262; CRG v Children’s Guardian [2017] NSWCATAD 295 at [85]; and DAI v Children’s Guardian [2017] NSWCATAD 308 at [90].

Public interest test

34. The Victorian Court of Appeal considered the meaning of the term “public interest” in Secretary, Department of Justice v LMB [2012] VSCA 143 at [24]-[26] in the context of the equivalent provision in the Victorian Act. The Victorian Court of Appeal said:

“[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth:

‘The term “in the public interest” is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.’

[25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’. The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.

[26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.”

(footnotes omitted)

The material before the Tribunal

35. FMO relied on the following material: 

1. Bundle of evidence dated 2 December 2022, which among other items, included an expert report by a consultant psychologist, Mr Tim Watson-Munro (the Watson-Munro report);

2. An undated affidavit sworn by FMO which was filed on 8 December 2022;

3. FMO’s statement entitled “My personal story” dated 15 September 2022, served on the respondent on 8 November 2022;

4. 12 character references including from his current partner and his doctor which speak in favour of his character and history.

36. The Children’s Guardian relied on the following:

1. Bundle of evidence dated 5 October 2022;

2. Submissions filed on 8 February 2023.

Section 30(1) considerations

37. In determining this application, the Tribunal has considered the following factors as set out in s 30(1) of the Act.

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

38. The disqualifying offence lies at the lower end of the scale of seriousness of indecent assaults. There was no violence, and the criminal conduct was of short duration.

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

39. The disqualifying offence occurred over four years ago, in November 2018. FMO has not been charged with any offences since then, nor been subject to any allegations of violence or criminal behaviour, or otherwise known to have engaged in any breaches of the law.

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

40. FMO was 48 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

41. Sky was 21 at the time of the offence but was vulnerable because of her autism. On the agreed facts, it was obvious from her appearance and her behaviour, that she was severely disabled.

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

42. The age difference between the victim and FMO was 27 years. They were not known to each other before the night of the offence.

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

43. The victim was not a child.

(g)  the person’s present age

44. FMO is 52 years of age.

(h)  the seriousness of the person’s criminal history and the conduct of the person since the matters occurred

45. Other than this disqualifying offence, FMO has no relevant criminal history. Since the disqualifying offence in 2018, he has remained in employment. FMO has also abstained from alcohol since February 2020 and is in a stable relationship.

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

46. As detailed by the Watson-Munro report, FMO was administered the Sexual Violence Risk-20 (an instrument designed to assess a person's risk of engaging in sexual violence) which produced an ‘unremarkable’ result. Dr Watson-Munro found that FMO is at low risk of "reoffending or being in some way a risk to minors". We accept this evidence.

47. We also note that FMO has abstained from alcohol since February 2020. He gave evidence that he has been playing music again (which he did in his youth) and that meeting his current partner has contributed to his ability to abstain from alcohol. We find that FMO’s prolonged abstinence from alcohol is a significant factor given that alcohol contributed to FMO’s disqualifying offence.

48. There is also evidence before us, which we accept, that FMO is currently mentally healthy and employing strategies to ensure his mental health remains stable such as playing music, meditation, and prayer.

49. There is some evidence from FMO which might appear to indicate that he has not taken responsibility for his offending or remorse for the harm caused by his offending. In this regard, we note in FMO’s 15 September 2022 statement he says the following:

“In 2018 the night this offence [sic] I have very little memory as I was highly intoxicated, it was an after party of my niece’s engagement party, I was led there by my youngest niece in order to provide beer for her boyfriend’s family who she was living with at the time. My niece left me around strangers who took advance of me. [sic] A girl was there who I thought was drunk kept kissing me. All I can remember then is sitting on a bed, the girl was there kissing me. Then I was severely assaulted by two men.” (emphasis added)

50. In FMO’s 12 November 2022 statement, he says “I am very sorry about the entire episode – especially the savage beating I received”. This appears to represent that FMO sees himself as the victim while at the same time explicitly remorseful for the harm caused to Sky. However, one of the character references from his doctor states that FMO has expressed “sincere remorse and [a] deep sense of shame regarding his actions”, and that FMO is “fully accepting of responsibility for what had occurred”.

51. We also note that FMO pleaded guilty to the unlawful conduct which in our view demonstrates him taking responsibility for his actions.

52. On balance, we conclude that FMO is remorseful and has taken responsibility for his offending. This is persuasive in reaching our view that the likelihood of repetition of the offence or conduct is low.

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

53. There are no other orders in force against FMO that the Tribunal is aware of.

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

54. FMO has provided statements including 12 positive character references including from his doctor as well as the Watson-Munro report, all of which we have taken into account.

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

55. No relevant information was obtained in accordance with this section.

(k)  any other matters that the Children’s Guardian considers necessary.

56. Other than the matters we have already referred to, there is no other matter which the Children’s Guardian considered necessary .

Conclusion

57. Having regard to all of the s 30 considerations, we are satisfied, on the balance of probabilities, that FMO has rebutted the presumption that he poses a risk of harm to the safety of children.

Section 30(1A) considerations

58. Having considered all the documentary evidence before us, and all the s 30 considerations, we are satisfied, on the balance of probabilities, that a reasonable person with knowledge of all the facts and circumstances, would allow his or her child to have direct contact with FMO whilst unsupervised by another person. In this regard, a reasonable person would be aware of the impact alcohol had on the offence, that FMO did not know that Sky suffered from autism or was disabled and that FMO has committed no other offences, is remorseful, pleaded guilty and has abstained from alcohol since 2020.

59. We are also satisfied that the public interest is in favour of making an enabling order as it would provide FMO with the ability to continue his work at the hospital. In this regard, we note that the evidence demonstrates that FMO’s work at the hospital provides him with stability and promotes his mental health.

60. In reaching our conclusion, we have taken into account the safety, welfare and wellbeing of children, which is the paramount consideration under the Act. We have also taken into account the fact that the Children’s Guardian supports FMO’s application.

ORDER

1. It is declared that the applicant is not to be treated as 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 aggravated indecent assault contrary to section 61M of the Crimes Act 1900 (NSW) to which the applicant pleaded guilty in the Local Court on 13 June 2019 and for which a 12 month Conditional Release Order was made at Parramatta District Court on 7 August 2019 without a conviction being recorded.

2. The application for an enabling order under section 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW) dated 25 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 (NSW). 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: 05 April 2023