FMX v Children's Guardian

[2023] NSWCATAD 203

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FMX v Children’s Guardian [2023] NSWCATAD 203

Hearing dates:

23 March 2023

Date of orders:

01 August 2023

Decision date:

01 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
J Herberte, General Member

Decision:

(1) Declare FMX is not to be considered a ‘disqualified person’ for the purposes of the Child Protection (Working with Children) Act 2012.

(2) FMX is to be granted a Working With Children Check Clearance forthwith.

Catchwords:

ADMINISTRATIVE LAW – Child protection – Working with children – Enabling order - Whether applicant poses a risk to the safety of children – Where applicant must displace presumption after being found guilty of criminal charges relating to take/detain person in company with intent to obtain advantage

Legislation Cited:

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

Children and Young Persons (Care and Protection) Act 1998

Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)

Evidence Act 1995

Cases Cited:

CXZ v Children’s Guardian [2020] NSWCA 338
BFX v Children’s Guardian [2014] NSWCATAD 115
BFX v Children’s Guardian [2014] NSWCATAD 115
BKE v Office of the Children’s Guardian [2015] NSWSC 523
Children’s Guardian v BQJ [2016] NSWSC 869
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Office of the Children’s Guardian v EQE (2002) NSWSC 871
VQB v The Secretary of the Department of Justice (Review and Regulation) (2013) VCAT 789
ZZ v Secretary, Department of Justice [2013] VSC 267

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FMX (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
Ms T Baw (Applicant)
Mr L Meagher (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2022/00259345

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, 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 the proceedings is prohibited.

REASONS FOR DECISION

1. This is an application for an enabling order under the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”).

2. The applicant, who is referred to as FMX, is a declared “disqualified person” under the Act. This is because he pleaded guilty to a prescribed offence in 2002. He is presumed under the Act to be a risk to the safety of children. FMX wishes to pursue a career in physiotherapy. As part of him completing his physiotherapy degree, FMX requires a working with children check clearance (WWCCC).

3. The Children’s Guardian (the “respondent”) is responsible for administering the WWCCC regime. Before the respondent can issue FMX with a WWCCC, the Tribunal must decide whether, or not, to declare that he is not a disqualified person for the purposes of the Act, and if so, decide if he should be granted a WWCCC.

Non-publication order

4. On 15 September 2022, the Tribunal made an order prohibiting the disclosure of the name of the applicant, his victims and of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”). We note that, for the purposes of s 64 of the NCAT Act, 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 (NCAT Act, s 64(4)).

Background

5. FMX is fourty one years old. He was born in China. His father is deceased and his mother left the family when FMX was about 6 years. FMX emigrated to Australia at the age of 12 to join his mother and sister. His mother remarried and FMX did not have a close relationship with his stepfather.

6. On 28 November 2002, FMX pleaded guilty to ten offences which arose out of six separate incidents in which FMX, with others, caused victims to hand over money. The circumstances related to FMX and his co-accused’s standing over multiple victims of mostly young male Asian men and demanding ATM cards or other valuables in response to threats. The convictions included take/detain person in company with intent to obtain advantage, contrary to s 86(2)(a) of the Crimes Act 1900 (NSW). This particular offence is the prescribed disqualifying offence falling within Schedule 2 of the Act, declaring FMX as a “disqualified person”, as it involved victims under the age of 18 years.

7. Upon a guilty plea being entered by FMX, a custodial sentence totalling 5 years, with a non-parole period of 3 years, commencing on 17 May 2002 was entered by the District Court of New South Wales. FMX was released on parole at the earliest possible date, being 16 May 2005.

8. It is not in contest that prior to the disqualifying offence, FMX had a conviction of two offences, possessing a prohibited drug, for which he was fined $150 in the Burwood Local Court on 29 August 2000.

9. On 20 February 2009, this is after the disqualifying offence, FMX was charged by the Australian Federal Police with importing a marketable quantity of border controlled drugs, namely cocaine and heroin. FMX’s offending in this regard occurred between December 2008 and February 2009. The offending included the importation of the substances from various countries through the postal service.

10. On 14 December 2010, FMX pleaded guilty to those offences and was sentenced to 7 years and 6 months imprisonment with a non-parole period of 5 years. FMX was released on parole at the earliest possible date, on 19 February 2014, and his parole ended on 19 August 2016.

11. During FMX’s second period of incarceration, his classification allowed him to complete a TAFE Catering Operations Certificate. In 2012, he completed a SMART Recovery Programme and there is no evidence that he used any illicit or non-prescribed substance from that time apart from one occasion. In that regard, the applicant was only once caught with drugs in his possession during the second period in which he was incarcerated.

12. In 2013, FMX applied for a WWCCC, as a volunteer. This was obtained so that he could participate in a prison day release programme using his cooking skills, including serving groups of school children on excursions. In 2015, a year after his release from prison, FMX applied for and was granted a WWCCC as an employee, to work as a sports trainer. He held the WWCCC in New South Wales without incident for 8 years and relied upon that clearance to pursue his further studies. It is not in contest that FMX, when applying for the previous WWCCC’s disclosed his full criminal record. The respondent conceded that FMX was incorrectly issued a WWCCC, for the 8 year period.

13. On 13 July 2022, the respondent cancelled the WWCCC on the basis that FMX was a disqualified person. This is because of the disqualifying offence committed in 2002. The WWCCC was cancelled pursuant to s 23(1) of the Act.

14. FMX has a Degree in Exercise Sports Science and without a WWCCC he would is not able to obtain work as a personal trainer. He has undertaken further studies at Charles Sturt University in physiotherapy. He is working as a Health Assistant at a physiotherapy clinic in regional New South Wales. The university has indicated that without a WWCCC, FMX is unable to complete his physiotherapy degree.

FMX’s psychiatric history

15. When FMX arrived in Australia at the age of 12, he was unable to speak English or read or write in that language. He found schooling challenging and commenced using cannabis at the age of 14 years. FMX’s use of illicit substances progressed to heroin and then methamphetamine.

16. From 15 June 2001, at the age of 19, FMX was detained for 3 months as an inpatient of the Psychiatric Unit of Royal Prince Alfred Hospital (RPAH). He was diagnosed with drug induced psychosis, primarily resulting from methamphetamine abuse. FMX was discharged from the Psychiatric Unit and prescribed antipsychotic medication without further treatment.

17. Following his release in May 2005, FMX went to live with his mother, stepfather and younger sister, in an inner city suburb of Sydney. He obtained employment working as a chef in a pizza restaurant. FMX resumed consuming drugs, including cannabis, amphetamines and heroin several times a week. During 2006, FMX increased his abuse of cannabis in an attempt to limit the use of heroin. He experienced delusional ideation and was hearing voices. In early July 2006, FMX’s family moved to an apartment in a different suburb. FMX left the home and began an itinerant lifestyle, living with friends, with no fixed addressed. His mental health went untreated and he continued to experience hallucinations.

18. On 23 July 2006, FMX was again admitted to RPAH. He presented with paranoid delusions and psychosis. FMX was admitted for 2 weeks before being discharged to temporary accommodation with a discharge plan including drug and alcohol rehabilitation. During his admission FMX was prescribed antipsychotic medication; however this ceased following a resolution of psychosis.

19. On 22 July 2008, FMX voluntarily admitted himself to St George Hospital Psychiatric Unit. He was experiencing symptoms of depression and suicidal ideation and upon calling the Mental Health Crisis Team presented himself to that hospital. He was discharged from hospital without any antipsychotic medication and was reclassified as having an ‘situational-crisis’.

20. During his period of incarceration, in July 2010, FMX was diagnosed with schizophrenia, of a paranoid type, and treated with antipsychotic medication. FMX said he ceased taking antipsychotic medication from 2010 or 2011. He has consulted a clinical psychiatrist as late as 2021 and does not meet the criteria for any mental health disorder.

Legislative Provisions

21. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a WWCCC, 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 ss 3, 28 (1) of the Act.

22. 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 s 4 of the Act.

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

24. 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 s 227 of the Children and Young Persons (Care and Protection) Act 1998. 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”

25. 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.”

26. The disqualifying offence for which FMX was charged and ‘convicted’ is one which falls within Schedule 2 cl.1(1)(m) of the Act. Therefore, FMX is treated as a “disqualified person”. By reason of s 18(1)(a) of the Act the respondent must not grant a WWCCC 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. FMX is, relevantly for the purposes of the Act, an adult and was an adult, aged over 18 years, at the time of the disqualifying offence.

27. An enabling order is sought by the applicant pursuant to s 28 of the Act, which 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. 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.

(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.”

28. The respondent is a party to the proceedings pursuant to s 28(4) of the Act.

29. It is not in dispute that FMX’s WWCCC was cancelled by the respondent (see 18(3)).

Standard of Proof

30. It is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children (s 28(7) of the Act). It is well established that the standard of proof applied is the civil standard, that is, on the balance of probabilities: see s 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].

Relevant considerations

31. In making a determination under s 28 of the Act, the Tribunal must consider the matters under s 30 of the Act. Those matters are:

“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 total criminal record and the conduct of the person since the offences 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.”

Tribunal’s task

32. A person who is a “disqualified person” and where that person has either been refused a WWCCC, or, had it cancelled by the Children’s Guardian, the person may apply to the Tribunal for an enabling order.

33. The Tribunal’s task when determining an application for an enabling order is to decide whether FMX has displaced the presumption that he is a risk to the safety to children.

34. In doing so, FMX is subject to a risk assessment under Division 3 of Part 3 of the Act. The Tribunal must not grant a WWCCC to a person who is subject to a risk assessment under Division 3, unless, it is satisfied that the person does not pose a risk to the safety of children (s 18(2) of the Act). A risk to the safety of children means a real and appreciable risk to the safety of children (s 5B of the Act).

35. The Tribunal, when conducting its review, must decide whether FMX poses a real and appreciable risk to the safety of children (CXZ v Children’s Guardian [2020] NSWCA 338 at [7], [57]).

FMX’s evidence

36. FMX relies on two affidavits. The first is sworn 22 December 2022. The second 2 March 2023.

37. It is not in contest that the applicant was born in China. His father died at the age of 6. He was left in China with other relatives from 1987 when his mother moved to Australia until he joined her, and his sister when he was 12 years. He attests that his schooling results were poor and he became disconnected and started using illicit drugs at the age of 14, including cannabis and methamphetamines. To fund his habit he would sell stolen mobile phones. FMX, at the age of 17, became involved in a youth gang operating in the Chinatown area of Sydney. His mother sent him back to China to live with his uncle in the hope that he would clean up his life and stop taking drugs. FMX returned to Australia following that 6 month period. At the age of 18, on 26 July 2000, he was charged and convicted with minor drug possession.

Disqualifying offences

38. FMX pleaded guilty to the disqualifying offence concerning himself and a number of co-offenders committing several robberies in April and May of 2002. He was aged 20. The victims of the robberies mainly included young Asian students in the Chinatown area of Sydney. He states that the victims were between 17 and 20 years of age, but he perceived them to be of a similar age to himself. He concedes two victims included persons 17 years, but he said he was not specifically targeting children. The robberies would include threatening victims with harm to induce them to hand over their valuables, bank account details and access numbers. He states the victims were not physically harmed. He committed these offences to fund his heroin addiction. FMX states that he was under the influence of drugs and alcohol at the time of committing the offences. He is deeply ashamed of his actions and expresses remorse.

38. FMX’s evidence in relation to the disqualifying offences was not disturbed in cross-examination. We accept him as an honest and reliable witness. We accept his explanation that whilst committing these offences he was under the influence of drugs and alcohol and that he was not specifically targeting children, but did so inadvertently.

Post-release 2005

40. FMX was released on parole after serving a term of imprisonment for the disqualifying offences on 16 May 2005. He returned to live with his family and obtained employment as a chef in a pizza restaurant. FMX resumed drug taking, using cannabis, ecstasy amphetamines and heroin several times a week. He returned to former criminal and drug associations. From July 2006, FMX experienced hallucinations, including hearing voices that were speaking to him. His family moved and he assumed an itinerant lifestyle with no fixed address.

41. On 23 July 2006, FMX presented at the Emergency Department of RPAH. He was experiencing delusional ideation and hallucinations. The clinical team at RPAH refused to admit FMX to hospital. Police were called. He said that he damaged a police car in the hope that he would be arrested as he felt he needed to be hospitalised. FMX was convicted and fined for damaging property.

42. FMX overdosed on Panadol on 1 August 2006. He attended the Emergency Department of RPAH. On 24 August 2006, FMX stabbed himself in the chest. He told hospital staff that he had been attacked. He said that these incidents were suicide attempts and on reflection, according to FMX, a deterioration of his mental health. During this time he said that he was experiencing hallucinations and he gave an example him thinking that he was named ‘Australian of the Year’. He said he attempted to take his life due to the shame of his past behaviours.

43. On 22 July 2008, FMX was admitted to St George Hospital Psychiatric Unit. He was experiencing delusions of a relationship with a Taiwanese singer. He was discharged from hospital on 25 July 2008. Following discharge he involved himself in a scheme to import drugs into Australia, he says, to try and help some friends who owed money. He said he was attracted to returning to prison, ‘because I felt it was a place where I would be more likely to get treatment for my mental health.’

44. In 2009, FMX was charged with offences occurring between December 2008 to February 2009, involving aiding and abetting the importation of drugs. He pleaded guilty to those offences and received a 5 year custodial sentence. During his term of imprisonment he was diagnosed with schizophrenia and he was treated with antipsychotic medication.

45. FMX completed TAFE remained living in a regional area of New South Wales to stay away from Sydney and old associates. He states that “the biggest motivation factors is that there were studies in catering during the second term of imprisonment. Many prison officers, education officers, indigenous land council and TAFE staff that wanted to see me succeed and do good and set a good example for other inmates to follow.”

46. FMX was released from prison on 19 February 2014. He completed a Sports Science Degree between 2015 and 2019. Since 2019 he has been undertaking a Degree in physiotherapy at Charles Sturt University and is due to complete his Degree in January 2023, subject to completing placements. FMX has WWCCC’s (or similar clearances) in Victoria and the ACT.

47. FMX was cross-examined in relation to an answer about his consumption of drugs or alcohol when applying to the Victorian authority for a WWCCC in that State. He admitted that there was an error in his reply in relation to him consuming drugs whilst incarcerated for the second time. In that regard he stated he had not consumed drugs for the past 10 years, which was incorrect. He provided an explanation that he interpreted that question to relate to his history of drug importation. Whilst FMX’s explanation is unclear, we find that he did not intend to mislead the Victorian authority. FMX went into great detail of his previous drug offending and we accept his evidence that he may have misunderstood the question. We do not make any adverse finding with respect to his credit.

48. Annexed to FMX’s first Affidavit is a letter from Charles Sturt University dated 14 November 2022. The University confirms that without a WWCCC FMX is unable to be allocated placements to complete his Degree in Physiotherapy.

49. FMX makes the following statement in relation to his offending “I accept full responsibility for the offences I have committed. I continue to be deeply ashamed of the pain and negative impact of my actions have had on the victims, my family and the community.” We accept FMX is truly remorseful for his offending.

50. We accept FMX’s explanation that he did not ‘knowingly’ commit offences against children in 2002. Since 2009 he states he has remained drug free and continues to work proactively to improve all aspects of his life. We accept his evidence in this regard.

51. In FMX’s second Affidavit, he deposes to regular consultation with his general practitioner. His general practitioner is aware of his criminal and mental health history. He has been referred to a clinical psychologist with whom he has regular therapy sessions. In October 2022, following the cancellation of his WWCCC, FMX’s general practitioner commenced him on a low dose of antidepressant medication, Sertraline, because of the stress and anxiety caused as a result of the cancellation of his clearance.

Evidence of FMX’s treating psychologist

52. FMX has included in his evidence a report from his treating clinical psychologist. FMX utilised 23 sessions during 2022 and recommenced those sessions in 2023. He was primarily referred to the psychologist following the cancellation of his WWCCC. The psychologist assesses FMX as being at low risk of self-harm and/or suicidal behaviour and low risk of harming others. FMX reported to the psychologist that he does not consume any alcohol, tobacco or use recreational drugs. He uses prescribed medication, including an antidepressant, as needed. FMX continues to consult the psychologist to explore trauma related issues and management of his mood generally and wellbeing. The clinical psychologist was not cross-examined and we accept his evidence.

Evidence of the Business Manager of physiotherapy practice

53. FMX has included an Affidavit sworn 2 March 2023 from the Business Manager of the physiotherapy practice where he is employed. She confirms that FMX was employed as a sports trainer, remedial massage therapist and allied health assistant. FMX disclosed his entire criminal history as part of his employment process. The employer undertook a criminal record check and WWCCC check. FMX informed the physiotherapy business of his prior offending which resulted in incarceration, his drug use and mental health history. FMX continued employment with the practice for 6 years up until 12 July 2022 when his WWCCC was cancelled.

54. The witness deposes that FMX has treated her own children in remedial massage and herself without incident. She describes each of her children having ‘great respect for FMX’. FMX conducts himself respectfully, professionally and appropriately, including when treating children. The Business Manager supports FMX being able to be granted a WWCCC to continue his career in physiotherapy. The Business Manager was not called for cross-examination, we accept her as an honest and reliable witness.

Various character references

55. FMX in his first Affidavit included a number of character references in support of this application.

56. The first is an undated reference addressed to the Tribunal from FMX’s biological sister. The referee acknowledges the criminal offending FMX engaged in and, particularly, that the disqualifying offence included children. He asserts that FMX is “a changed man and is deeply regretful of his past wrongdoings even until this day.” She says that FMX has undergone a ‘360 turn since that incident.’ Referring to his periods of incarceration. FMX’s sister says that she is regularly informed that FMX’s career in physiotherapy is one which he loves, particularly where he sees improvement in the people he provides services to.

57. The second is a reference from a colleague in the physiotherapy practice dated 14 December 2022. The colleague has known FMX since 2016 when he commenced work at the physiotherapy practice as a sports trainer then massage therapist. She describes FMX as an “outstanding member of our team. I cannot speak more highly of a colleague and individual. He holds the highest of moral and professional standards with everyone he is involved with from patients, colleagues and general members of the community.”

58. FMX has been fully transparent with his work colleague about his past history and criminal offending. We note there is no specific reference to his period of incarceration. However, this does not detract in any significant way from the weight we have placed on this reference. The referee fully supports FMX being able to continue in his role as a physiotherapist and states “I see him absolutely NOT a threat to children and community but an asset that we are lucky to have”.

59. The third is a reference from the CEO of a local Aboriginal Land Council dated 25 October 2022. The referee has been apprised of FMX’s serious past and history of offending, including the disqualifying offence involving minors and his period of incarceration. The witness refers to FMX showing respect and integrity towards her children and other family members with whom he has interacted in a community setting. The referee supports the granting of a WWCCC to FMX.

60. The fourth reference is undated and authored by a colleague who studies a physiotherapy degree at Charles Sturt University. The referee acknowledges FMX being transparent about his past criminal offending, incarceration and the disqualifying offences relating to minors. Reference is also made to FMX’s history concerning his mental health. The referee considers FMX as being polite and professional to all people of all ages including children. Support is provided for FMX to continue his physiotherapy career and being issued a WWCCC.

61. The next is a reference from a patient of the physiotherapy practice dated 13 December 2022. Reference is made to FMX’s prior offending and his criminal record. The referee states that FMX has made a “total transformation” since that time and supports FMX being able to continue with his tertiary studies in physiotherapy.

62. A further reference dated 20 December 2022 addressed to the Tribunal is authored by a fellow student who studied and lived with FMX. The referee again is aware of FMX’s offending and criminal history and supports the granting of a WWCCC. He is of the opinion that FMX does not pose a risk to children (or anyone else).

63. The letter referred to above from Charles Sturt University is authored by the Head of School. The reference does not refer to FMX’s prior offending. However, it does acknowledge and support FMX being able to continue and complete his studies as a physiotherapist in which FMX is described as being a very suitable person to conduct a career in that area. Limited weight is given to this reference in the absence of specific acknowledgement of FMX’s prior offending.

64. The final reference is one from a Club President, prior player and coach of a regional Rugby Union Club. FMX has been involved with that Club in the capacity as a sport trainee and first aid assistant. The reference is dated 21 December 2022 and acknowledgement is given to FMX’s past criminal record, including the disqualifying offences including children. The referee finds FMX to have worked in a very professional manner with all players and is highly regarded as a sports aid trainer by club members. He is described as a very important member of the Club and a wonderful ambassador. Support is given for the granting of a WWCCC to enable FMX to continue his physiotherapy studies and practice as a physiotherapist.

65. Overall, we accept the glowing character references which weigh in favour of FMX’s application.

Report of Forensic Psychologist Ms Sarah Brann

66. FMX relies upon a risk assessment report authored by Ms Sarah Brann dated 8 December 2022 and a further report of 2 March 2023. There was no objection taken to the admissibility of the reports.

67. The expert refers to all of FMX’s offending. For clarity, the additional report confirms that the offending in 2009 was also taken into consideration in conducting the risk assessment. Consideration was given to FMX’s offending, his substance abuse and periods of time when his mental health was in decline. On psychometric assessment, relevantly a personality assessment inventory (PAI) there was no evidence found of any mental health disorder, substance abuse, antisocial attitudes, relational deficits, or unhelpful patterns of coping with current stressors. Despite FMX’s profile indicating that he may repress or deny distress, he is found to be an individual with a “positive and stable self-image, who is generally confident and optimistic.”

68. During the assessment concerning his mental health the expert found that FMX appropriately seeks help and is likely to continue with doing so in a trusted therapeutic relationship. Reference is made to FMX’s recent acknowledgement of his mental health and consultation with both his general practitioner and the clinical psychologist. Despite a history of some mental health disturbance, the expert concludes:

‘Based upon evidence available to me, there appears to be a significant period of stability. [FMX] has been able to function in the community, socially and vocationally, and has been free of disease related psychopathology.

[FMX] has a life-time diagnosis of schizophrenia multiple episodes, which was perhaps drug induced. His schizophrenia has seemingly resolved without recurrence for over a decade. He does not meet criteria for schizophrenia and no current diagnosis is made. There are no residual symptoms observable, and no impairment associated with his life-time diagnosis. In general studies suggest [sic] that between 1 in 5 to 1 in 4 people diagnosed with first episode schizophrenia will completely recover over time. It is not the case that once diagnosed a person is bound to have a relapse, but relapse is found in a majority of patients, especially if comorbid with affective disorders or substance abuse (e.g. cannabis).’

69. The expert finds that FMX has openly discussed symptoms which continue to disturb him in relation to trauma related symptoms connected with his past offending. He acknowledged to the expert that his offending was a deep source of shame. More recent reports of stressors to his general practitioner are particularly related to the cancellation of his WWCCC.

70. The expert undertook a risk assessment and found that “There is no evidence that [FMX] poses any specific risk of offending against children.” The results of the risk assessment indicate that FMX is “of very low risk of committing a further offence, and the risk of a child being the victim of any such reoffending his even lower.”

71. When considering risk the expert took into consideration the lengthy period of being offence free within the community as well as significant and sustained changes across multiple domains of FMX’s functioning. The expert opines that FMX poses “no greater risk to children than an individual who has never been detected of a criminal offence.”

72. The overall results of the risk assessment highlight that FMX “has a number of protective factors and overall is of low, barely appreciable risk of committing a further offence of general or violent nature. Given the passage of time he appears of no greater risk of committing an offence other than an individual with no prior offending history. The likelihood of a child being victimised through [FMX’s] behaviour is even less likely. I am not of the view that [FMX] poses a tangible or specific risk to children and young people.”

73. The expert goes on to find that there is no evidence of any active symptoms of psychosis or schizophrenia over the past 13 years. Ms Brann concludes that it is likely FMX’s schizophrenia has been “in remission for more than a decade”.

74. In cross-examination Ms Brann was taken to some parts of her evidence. Overall, Ms Brann’s evidence was not disturbed and we accept it.

75. Consideration has been given to the cross-examination concerning the finding that FMX is ‘an intense, serious man who displays tendencies of overachieving and trying to minimise his mental health history, who requires close monitoring of his mental health’. When cross-examined on this part of the evidence, Ms Brann finds that FMX was able to clearly set out warning signs of a decline in his mental health. She finds that he has had a significant period of instability and insight of what to look for in the future. Ms Brann rejected a proposition that there is a specific concern that where a therapeutic relationship was to break down he might fail to monitor his symptoms. She finds that FMX has good insight into his symptoms and trusts various experts where he has looked elsewhere when one was not available.

76. In re-examination Ms Brann expressed a view that from her clinical impression and the history provided FMX impressed her as someone “who is very motivated to continue on the pathway of prosocial life. His behaviour demonstrates this as do comments from his employer and other persons including roommates and associates involved in his life.” This is evident in our view by the glowing character references referred to above and consistent with the expert’s opinion.

77. Ms Brann concludes that FMX has good insight into the factors of significant episodes concerning his mental health. He takes significant steps to minimise his symptoms and consults appropriate specialists to assist in mitigating the risks of relapse over time. Given that he has not relapsed for over 10 years, Ms Brann finds that FMX is “appropriately managing his mental health.” Should there be a re-emergence he is receptive to medication and demonstrates responsibility to manage his mental health.

FMX’s case

78. FMX submits that the Tribunal should take comfort that over 9 years whilst participating in the community with a WWCCC he has not come to the attention of the respondent or any other agency concerning misconduct. He does not use drugs and for the last 10 years has not had any psychotic episodes. FMX has structures in place which is significant to mitigate risk factors as set out by Ms Brann. In this regard FMX has demonstrated that he is willing to seek assistance from health care professionals such as his general practitioner and clinical psychologist.

79. FMX has demonstrated a good attitude with those who he associates with. He has been upfront with his history and is remorseful for his prior conduct and behaviour. During both periods of imprisonment he gained support by prison officers and indigenous organisations in further educating himself and gaining employment. The references all indicate that FMX is a person who is highly regarded in his local community and with those with whom he works, patients and persons within sporting groups such as the local Rugby Union Club. FMX acknowledges a history of mental illness since 2001. On each occasion he has voluntary admitted himself for treatment which is consistent with the findings of Ms Brann in terms of FMX recognising a deterioration in his mental health and seeking assistance from a health care professional. It is submitted that the likelihood of a decline in his mental health which could lead to reoffending is low.

80. In some of the character references FMX is described by those referees as having treated children in the context of physiotherapy. Those referees speak highly of FMX in that regard which should be given significant weight.

81. FMX has been candid and frank about his past conduct and wrongdoing. He has provided significant information in his evidence and where necessary accepted mistakes and errors particularly with respect to his application to the Victorian authority. Each of the referees and the expert commend FMX for him being able to turn his life around and improve his personal circumstances all attesting to him having very limited, if any, risk to children.

The respondent’s case

82. It is not disputed that FMX was inadvertently issued a WWCCC by the respondent for a period of 9 years. It is also not disputed that during that time FMX demonstrated good conduct in holding that WWCCC and working with children. The primary concern of the respondent with respect to this application is a mix of FMX’s mental health decline, drug use and that re-emerging.

83. The respondent said that FMX has a long history of drug use, particularly in his teenage years, which continued up until 2002. It is not in contest that his offending related to obtaining money to buy drugs. It is also not in contest that following release from incarceration on the first occasion FMX resumed consuming illegal drugs which led to his second term of imprisonment for drug related offences.

84. The respondent relies on a report of Dr Richard Furst dated 15 July 2010 referring to references of FMX “covering up” his mental health issues. He apparently told the expert that he had never had a serious addiction to heroin and was able to overcome and quit smoking on multiple past occasions. This is despite him acknowledging suffering withdrawal symptoms when he stopped using heroin and one or two months of low mood. Dr Furst found that FMX lacked insight in relation to the paranoid nature of his symptoms that it made it hard for him to accept treatment or engage treatment providers appropriately. He goes on further to find that FMX was prone to episodes of illness which appear to have been triggered by substance abuse in the past and his insight remained poor. This report was prepared in 2010 in FMX’s defence to the 2008-2009 offending concerning aiding and abetting importation of border controlled drugs.

85. It is submitted that the findings of Dr Furst should be considered by the Tribunal when evaluating the evidence of Ms Brann and whether FMX is downplaying his mental health and at risk of slipping into his prior drug taking and declining mental health. However, despite the apparent suggestion of a firm regime of self-examination which is set out by Ms Brann concerning FMX’s mental health, the respondent concedes that over the last 5 to 10 years that self-examination has not faltered. This recent period of successful self-examination is particularly persuasive in respect of our finding to grant the enabling application.

Consideration of the s 30 factors

(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.

86. It is evident that the disqualifying offence is serious. It carries a maximum period of 20 years imprisonment. Indeed, FMX was sentenced to 7 years and 6 months of imprisonment.

87. FMX’s offending included 6 organised incidents of threatening victims with violence, including showing them live ammunition, knives and what appeared to a victim to be a gun. FMX and his co-accused intimidated the victims to gain their cooperation in handing over money, ATM cards and disclosing their personal information. FMX concedes that two of the victims were children being under the age of 18 years.

88. We accept that FMX committed these offences to fund his heroin addiction. At the time of the offending he was under the influence of alcohol and drugs.

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

89. The disqualifying offences occurred in April and May 2002, almost 20 years ago.

90. We have taken into consideration FMX’s conduct since that time and note his offending on 27 July 2006, including the damage to a police car and the serious importation offences to which FMX served a further lengthy term of imprisonment.

91. Since his release in 2014 there is no evidence of any other charges, allegations or complaints made against FMX.

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

92. FMX was 20 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,

93. Relevantly, the victims were 17 years old and vulnerable. The other victims were up to the age of 21. FMX committed the offence in company which is an aggravating feature.

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

94. The victims were 3 years younger than FMX. It is noted FMX and the victims were strangers.

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

95. FMX was 20 years of age at the time of the disqualifying offences. It is equivocal whether FMX knew the victims were a children, but, we find it is reasonable that he should have known that the victim(s) was a child and under 18. Notwithstanding this, it is unlikely FMX gave this any thought in his described drug and alcohol induced state.

(g) the person’s present age,

96. FMX is now 41 years of age.

(h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

97. FMX’s criminal history is serious. He was involved in youth gangs from the age of 17 and began taking illicit drugs between 14 and 17 years of age. To fund his drug offending he would sell stolen mobile phones and participated in gang related activities including the disqualifying offences. FMX received a significant period of imprisonment for both the disqualifying offences and the importation offence.

98. During his incarceration he used and was convicted of a further offence in custody of possess/create prohibited goods.

99. FMX since his release from incarceration in 2014 is not recorded to have come to the attention of any police or other authorities. He has been consistently employed and completed a significant amount of study since that time.

100. FMX holds Working With Children Check or similar clearances in Victoria and the Australian Capital Territory for the purposes of undertaking physiotherapy placements with having disclosed his history to the relevant agencies responsible for those clearances.

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

101. FMX relies upon a report of a Forensic Psychologist, Ms Sarah Brann. Ms Brann finds that FMX demonstrated genuine expressions of remorse, regret and was visibly emotionally impacted when discussing his past offending. FMX gave similar evidence in these proceedings and we find that he is truly remorseful for his actions.

102. Ms Brann finds there is no evidence that FMX poses any specific risk of offending against children. He regularly and appropriately consults other health care professionals to self-manage his mental health. We accept the findings of Ms Brann as set out above and find the likelihood of any repetition of FMX’s offending or similar conduct and the impact on children of such repetition is low.

103. We are not satisfied that the findings of Dr Furst materially affect the opinion of Ms Brann. First, those findings by Dr Furst were made over 12 years ago. We accept the persuasive evidence of Ms Brann and FMX’s treating psychologist that he is able to self-identify and seek appropriate treatment when his mental health may be in decline, or stressors which affect his mental health are present. We acknowledge that FMX has in the past demonstrated psychological triggers which have led to prior offending. However, they are matters which relate to almost 10 years ago. This is particularly persuasive even when considering Dr Furst’s evidence and the pre-release report which is contained in the respondent’s material concerning him taking drugs whilst incarcerated in 2013. We find the evidence demonstrates that there is a very low risk of FMX engaging in drug taking which could trigger further psychiatric episodes or psychological issues leading to aggressive behaviour and offending. This is because of the opinion of Dr Brann that FMX has demonstrated skills to identify periods of time in which his mental health may decline and seek services of a professional. He has been abstinent of alcohol and drugs for 10 years and, given his current state of mind, the demonstrated attestations of character references and the opinion of his clinical psychologist, he is unlikely to do so again.

104. FMX has been proactive about managing his mental health, he has genuine reasons for improving his life and continuing his studies. We find the likelihood of him reoffending is low.

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

105. There is no evidence of any other order in force relating to FMX.

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

106. We have considered the character references which speak highly and in positive terms about FMX’s character and acknowledge his history. These are material in our view given that most of those references recognise FMX’s prior offending, periods of incarceration, decline in mental health and drug use. Since that time each of the referees speak glowingly of FMX’s current presentation, his engagement with the community and the importance he places on completing his studies to pursue a career in physiotherapy. We give them considerable weight.

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

107. No information was obtained pursuant to s 36A of the Act.

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

108. The respondent contends that FMX sought to minimise his involvement in the importation offence and failing to acknowledge the seriousness of offending. The respondent relies upon FMX stating that his offending was to help friends who owed money which was inconsistent with what he told Ms Brann concerning he was motivated by a desire for financial gain. The respondent contends that it is also apparent that despite FMX asserting he admitted responsibility for his offending in his first interview with police, that fact is not apparent from the interview. Reliance is also made on the findings of Judge Bennett in that FMX should not be given the benefit for assisting authorities because he was guarded in his responses which may have facilitated further investigation.

109. The specific allegations concerning the proposition that FMX attempted to minimise his offending was not put to him in cross-examination. We place no weight on these submissions.

Our findings

110. We are satisfied that FMX has displaced the proposition that he poses a real and appreciable risk to the safety of children. We have taken into consideration that for the past 8 to 9 years until its cancellation in September 2022 FMX has held a WWCCC without incident. FMX’s referees from all aspects of his life, including employment, his study and volunteer services, speak highly of his character. For over 10 years there is no evidence that FMX has consumed illegal drugs, had any significant decline in his mental health nor engaged in any behaviour which has come to the attention of the authorities. The disqualifying offence is historical, it occurred more than 20 years ago. FMX has demonstrated that he has turned his life around, engaged in significant periods of study and recognises any stressors or triggers which may lead to a decline in his mental health. He has appropriately demonstrated that when necessary he consults the services of professionals in the areas of health care, particularly concerning mental health.

111. FMX has demonstrated remorse and regret for his offending. The evidence of his treating psychologist and Ms Brann is persuasive and demonstrates the unlikelihood of any repetition of his offending behaviour and/or untreated decline in his mental health. These weigh in FMX’s favour.

112. We reject the respondent’s contention that the Tribunal should have concern that FMX may relapse in terms of his mental health and consumption of illicit substances which could lead to repetition of his prior offending, including the disqualifying offences and to a lesser extent the drug importation offences to fund his lifestyle as he then did, due to the likelihood of this occurring is low.

113. In our view, FMX must be commended for the significant steps he has taken to improve his life, undertaking further studies and the demonstrated engagement within the community. Such engagement is outlined in the favourable references from his employers, colleagues, fellow students and other members of community organisations.

114. For these reasons, we find that FMX does not pose a real and appreciable risk to the safety of children.

Consideration of the s 31A factors

115. In making our finding as set out above we are required to consider the matters set out in s 31A of the Act before an enabling order can be made. Section 31A of the Act provides:

‘The Tribunal may not make an enabling order unless it is satisfied that:

(a)   a reasonable person would allow their children to have direct contact with the applicant that was not directly supervised while the applicant was engaged in any child-related work; and

(b)   it is in the public interest to make the order.’

116. In VQB v The Secretary of the Department of Justice (Review and Regulation) (2013) VCAT 789, the Tribunal affirmed as the correct approach when considering s 30(1A)(a) of the Act in Office of the Children’s Guardian v EQE (2002) NSWSC 871, [52]; Judge McNamara of the Victorian Civil and Administrative Tribunal said at [36]:

‘… (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 him or herself with all the matters that have been placed before me, giving the 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.’

117. In ZZ v Secretary, Department of Justice [2013] VSC 267 at [202] Bell J of the Victorian Supreme Court observed that:

‘While decisions of the Tribunal have correctly emphasised the main purpose of the Working With Children Act is the protection of children from harm, they have also acknowledged the relevance and importance of rehabilitating offenders, their right to work in other similar situations.’

118. Previous authorities have determined that the jurisdiction of the Tribunal under the Act is protective and not prohibitive. The application of the public interest test involves a balance of competing interests, being the protection of children balanced against the right of the individual to be employed in and participate in the community. The paramount principle under the Act requires that the protection of children, particularly from child abuse. However, it is not the only factor that must be considered.

Would a reasonable person allow their child to have direct, unsupervised contact with the applicant whilst he is engaged in child related work?

119. We have considered that the disqualifying offence included that it was against a 17 year old, committed when FMX was 20 years old. It occurred 20 years ago. FMX’s evidence, which we accept, that he was not targeting children but inadvertently offended against a child whilst under the influence of drugs and alcohol in an attempt to fund a drug habit. FMX pleaded guilty to that offence and is deeply remorseful and regretful for the harm to the community and the victim. In relation to the drug importation offending we note that this occurred when FMX was 27 years of age more than 13 years ago. Similarly, FMX has expressed remorse and regret for his offending.

120. We have considered that despite a history of mental health FMX, and for the reasons set out above, he has demonstrated no decline in his mental health for well over 10 years. He has not come to the attention of police for any type of offending for a similar period. We are satisfied sufficient time has elapsed from when FMX offended as a young man. He was sentenced to two lengthy periods of incarceration and during that time embarked upon a course of further studies. FMX having completed those studies and is now nearing the completion of a Physiotherapy Degree demonstrates significant rehabilitation since his offending. We have given significant weight to the various character references which are set out above which favour FMX in establishing the objective test of the reasonable person. We find that the evidence reveals because of the significant period of time since his offending, his rehabilitation, the large amount of study and period of time in which he has not offended, leads us to the conclusion that a reasonable person would allow his or her child to have direct, unsupervised contact with FMX whilst he is engaging in child related work.

Is it in the public interest to make the order sought by FMX

121. We are satisfied that it is in the public interest to grant to FMX a WWCCC. This is because the public will be served by having a further qualified health care professional to engage in work, particularly FMX being a qualified physiotherapist. During the 8 years prior to his WWCCC being cancelled FMX was consistently employed and volunteered his services to the community. This is commendable and he will be able to continue to do so in a more extensive way with the grant of a WWCCC.

122. When balancing the public interest and the FMX’s interests, we find that FMX satisfies the public interest test as there is no evidence to suggest that it would be against the public interest to grant him a clearance.

ORDER

1. Declare FMX is not to be considered a ‘disqualified person’ for the purposes of the Child Protection (Working with Children) Act 2012.

2. FMX is to be granted a Working With Children Check Clearance 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: 01 August 2023