FNT v Children's Guardian

Case •

[2023] NSWCATAD 79

•

31 March 2023

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: FNT v Children’s Guardian [2023] NSWCATAD 79
Hearing dates: On the papers
Date of orders: 31 March 2023
Decision date: 31 March 2023
Jurisdiction:Administrative and Equal Opportunity Division
Before: R Bailey, Senior Member
Prof P Foreman, General Member
Decision:

(1) Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with.
(2) The applicant is not to be treated as a disqualified person for the offence, in respect of the former s.61L of the Crimes Act 1900 (NSW), for which he was convicted on 18 November 2002.
(3)   The application for an enabling order is granted.
(4) Pursuant to s28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a Working with Children Clearance.
(5) The Tribunal orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons is restricted.

Texts Cited:

Nil

Category:Principal judgment
Parties: FNT (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
P Cranney (Applicant)

Solicitors:
Legal Aid NSW (Applicant)
Crown Solicitor (Respondent)
File Number(s): 2022/00312977

REASONS FOR decision

Introduction

  1. On 10 November 2022, the applicant applied for an enabling order following a decision of the respondent to refuse to grant him a Working with Children Check Clearance on the basis that he is a disqualified person. That decision was made on 5 July 2022.

  2. The Applicant in these proceedings is referred to as "FNT". FNT is the applicant's pseudonym used in these proceedings in conformity with the order referred to in paragraph seven [7] (below).

  3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. The applicant is presumed to be a risk to children, because he was convicted of indecent assault.

  4. The assault occurred on 29 September 2001, when the applicant was 29 years of age. The applicant and the victim had been in a relationship for approximately three months. However, the relationship had ceased by the time of the offence. Despite this, the applicant continued to live in the same house as the victim.

  5. On the night of the offence, the applicant and the victim stayed up talking and laid on a bed together. The victim alleges that the applicant sexually assaulted her by engaging in non-consensual sexual intercourse. The applicant was charged with sexual intercourse without consent. The applicant pleaded not guilty to sexual intercourse without consent and guilty to a lesser charge of indecent assault. He was convicted and sentenced to a good behaviour bond for three years. The offence was undoubtedly very serious. However, the victim was not a child.

  6. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, including the applicant’s conduct in the intervening 24 years, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons. As a result of the finding the application for an enabling order is granted.

Background

  1. The Tribunal orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons is restricted.

  2. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

4 Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

  1. The applicant applied for a Working With Children Check Clearance (WWCCC) on 26 May 2022. Subsequently, the respondent became aware of one matter in the applicant’s history related to a criminal offence.

  2. This matter was a ‘disqualifying offence’ under the Act and the application was refused: in accordance with s 18(1)(a). The disqualifying criminal matter is as follows:

  1. Indecent assault pursuant to s 61L (now repealed) of the Crimes Act 1900 (NSW)

  1. The applicant was convicted and sentenced to a three year good behaviour bond, with conditions. This offence is commensurate with offences listed in Sch 2 of the Act, equating to a ‘disqualifying offence’ as defined under the Act at Sch 2 Cl 1 (1) (h) (i).

  2. Consequently, on 5 July 2022, the Children's Guardian issued the applicant with a Notice to Disqualified Person pursuant to s 18 of the Act. On 10 November, the applicant applied to the Tribunal for the clearance. He was granted an extension of time, by consent. The applicant seeks a clearance to enable him to accept a role as a coaching coordinator with a regional junior sporting club.

  3. In summary, the reasons for which the applicant seeks an enabling order are to enable him to continue to have contact with his partner’s grandchildren, for whom he has been a de-facto grandfather for nine years, and not for the purpose of obtaining employment.

  4. In his statutory declaration, dated 24 November 2022, the applicant also wrote that the refusal of an enabling order would:

“Make future family time and special occasions very difficult for the whole family. I am always with my partner (who is the children’s maternal grandmother). (My partner) and I live together and usually travel together to stay with family… where the children live, or they visit us…I’ve had regular contact with the children for the past 9 years. I was even at hospital when (one child) was born and held (two of the other children) soon after they were born also. We all have a very close bond. If I am unable to get a WWWCC our family arrangements and bond with the children will be severely impacted. I am not a risk to the children and deeply wish to keep a close bond with them. They need all the family support they can get, especially since they are now in care”.

  1. The applicant submitted that, because the four children in question have been removed from parental care, he was advised by the DCJ Case Worker to apply for a WWWCC, so that he could continue to spend time with them.

  2. The issue to be decided by the Tribunal is whether the applicant should be granted an enabling order under s 28 of the Act.

  3. In reaching this position the Tribunal is required to consider section 30(1) and (1A) and determine whether he has rebutted the presumption that he poses a risk to the safety and well-being of children. We are also mindful of the Superior Court guidance that the risk must be both real and appreciable.

The working with children legislative scheme

  1. The object of the Act is to protect children, by preventing disqualified persons, or persons without clearances, from engaging in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

  2. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act: s 4 of the Act.

  3. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

  4. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1) (b) of the Act). A child related role is set out in s 6(3) of the Act.

  5. Section 18 of the Act constrains the Children’s Guardian from granting clearances to disqualified persons.

18 Determination of applications for clearances

(1) The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

  1. Disqualified persons do not undergo a formal assessment before the Children’s Guardian, as the Act mandates that the Children’s Guardian must not grant a clearance to such persons.

  2. It is the Tribunal that must conduct an assessment of a disqualified person’s risk if an application for an enabling order is made to the Tribunal.

Jurisdiction

  1. There is no dispute that the Tribunal has jurisdiction to hear the matter.

  2. Part 4 of the Act deals with reviews and appeals. Section 28 provides for the making of an enabling order by the Tribunal of disqualified persons. Relevant to these proceedings the section provides:

28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a working with children check clearance, or

(b) the person’s clearance has been cancelled under section 23, because the person is a disqualified person.

(4) The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

(9) (Repealed)

(Emphasis added)

  1. As a preliminary finding, we note that the Children’s Guardian has refused the applicant’s request for a clearance and the conditions of s 28(3)(a) are satisfied.

  2. Section 30 sets out the factors that the Tribunal must consider in determining an application. We will address each of the matters under s 30(1) later in these reasons.

Burden of Proof

  1. In this case, there is a presumption that the applicant poses a risk to children, as the applicant is a disqualified person seeking an enabling order pursuant to s 28 of the Act. (s28(7)).

  2. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'

  1. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

The Hearing

  1. By way of orders made on 28 February 2023, pursuant to s50 of the Civil and Administrative Act 2013, a hearing of this matter is dispensed with, and the matter is to be determined on the basis of documents submitted by the parties.

Written evidence

  1. Both parties filed written material in support of the matter. In our view there is no need to detail that material other than to the extent that it is relevant to our consideration of the mandatory issues.

Applicant’s submissions

  1. The applicant accepted that the disqualifying offence means that the statutory presumption must be displaced. He does not dispute that he demonstrated “concerning behaviour in the past”. However, he maintains that there is no real and appreciable risk to children.

  2. He relies on the report of Dr Christopher Lennings OAM, Clinical Psychologist, dated 20 December 2022 and asks the Tribunal to accept Dr Lennings’ opinion that there is an extremely low likelihood of the applicant reoffending. Dr Lennings also noted that the victim of the disqualifying offence was an adult and that “there is no apparent paraphilic deviance suggesting a child would be at risk of harm from (the applicant)”.

  3. The applicant’s submissions note that he was charged with sexual intercourse without consent and pleaded not guilty. Before trial, he pleaded guilty to an alternative charge of indecent assault, contrary to s.61L of the Crimes Act 1900 (NSW). This is a disqualifying offence, but does not involve intercourse without consent.

  4. The applicant gave evidence that he has sustained a number of brain injuries as a result of which he has poor memory. He noted that he was sentenced to a community-based order.

  5. The applicant has always denied having intercourse with the victim without consent.

  6. The applicant’s submission refers the Tribunal to the matter of DPH v Children’s Guardian [2019] NSWCATAD202 which involved a factual dispute regarding a disqualifying offence. In that matter, DPH was convicted of three counts of committing an act of indecency with a person aged 16 or over. The circumstances were that DPH had boarded a train whilst intoxicated and exposed himself in view of other passengers. There was an allegation that DPH had masturbated which was an aggravating fact denied by DPH. In that matter, the Tribunal was not satisfied that DPH had masturbated and resolved the dispute in favour of DPH.

  7. The applicant notes that whilst this is not an entirely analogous situation, he claims that there are relevant similarities between DPH and his application. The applicant does not challenge his conviction for indecent assault but disputes having intercourse with the victim without her consent, which, if proved, he submits, would aggravate the seriousness of his offence. He noted that there is competing evidence in these proceedings, whereas in DPH there were several witnesses to the disputed conduct.

  8. The applicant submits that it is not necessary for the Tribunal to hear further evidence in relation to the facts giving rise to the conviction for indecent assault. However, he submits that the Tribunal could not be satisfied that the applicant had sexual intercourse with the victim without her consent, based on the available material.

  9. The applicant submits that he does not pose a real and appreciable risk to the safety of children. He noted that the conduct for which he was convicted took place over 20 years ago and that the victim and the applicant had been in a relationship. The victim and the applicant were of comparable age and the offence did not involve a child. Furthermore, the applicant submits that his personal circumstances have changed significantly since that time, because he is now in a stable relationship.

  10. The applicant concedes that the applicant has a criminal history that involves episodes of antisocial behaviour, connected to previous drug addiction, but notes that there have been no similar offences to that for which he was convicted in the intervening 20 years. The applicant submitted that the fact that he is now a mature individual “serves as a protective factor in the current situation” as opined by Dr Lennings. The applicant submits that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised and that it is in the public interest to enable family relationships to thrive.

Respondent’s Submissions

  1. The respondent’s written submissions set out the statutory framework and applicable principles in detail. The respondent supports the application and submits that it is open to the Tribunal to make the enabling order.

Section 30 (1) considerations

  1. Section 30 of the Act sets out the following mandatory factors that the Tribunal must consider in determining an application. In this matter, the facts are not disputed.

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

  1. The applicant's application to the Tribunal is brought because he was convicted of the disqualifying offence of indecent assault, when he was 29 years of age. The victim and the applicant had been in a sexual relationship, which had ceased by the date of the offence. The victim and the applicant had sexual intercourse one evening, which the victim alleged was non-consensual. The applicant denied this and pleaded guilty to the lesser charge of indecent assault.

  2. The offence of indecent assault is serious, having carried a maximum penalty of five years imprisonment. The offence is now known as “sexual touching” under s.61KC of the Crimes Act 1900 and still carries a maximum penalty of five years imprisonment. In this instance, there is evidence that the victim may have been a vulnerable person, due to having a mild intellectual disability.

  3. Although the offence and its impact on the victim was serious, it did not involve children.

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

  1. The offence occurred on 29 September 2001, more than 21 years ago.

  2. The applicant has not been charged with any offences of a similar nature at any other time. However, there is evidence of antisocial behaviour in the intervening period.

  3. It is alleged that in 2006 the applicant attended his ex-partner’s home and verbally harassed her and banged on her windows and doors. One of her daughters was fearful for her safety and the police were involved. It is likely that such conduct would cause a risk of psychological harm to the child in this instance.

  4. In 2008, the applicant was convicted of driving with three unrestrained passengers, including his partner and her children. In this circumstance, the children were at risk of physical harm.

  5. However, the applicant has had contact with his partner’s grandchildren for 9 years and he has not been the subject of any allegations during this period. There is no evidence that DCJ have raised any concerns about the applicant posing a risk to the safety of these children, otherwise than in the context of his application for a clearance having been refused.

  1. The applicant was convicted of driving under the influence in 2015. The applicant attributes this offence to “spiking” of his coffee by an acquaintance.

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

  1. The applicant was 29 years of age when the disqualifying offence occurred. He is now 50 years old.

(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.

  1. The victim was 26 years of age when the disqualifying offence occurred.

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

  1. The difference in age between the applicant and the victim was three years.

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

  1. The victim was not a child.

(h) The seriousness of the person's total criminal history and the conduct of the person since the offences occurred.

  1. The applicant has been convicted of a number of offences, including traffic offences and minor property offences. The applicant’s criminal history includes a consistent level of offending from 1990 until 2015 – a 25 year period.

  2. Dr Lennings confirms that the applicant suffers from a brain injury. The applicant claims that he has memory difficulties, low literacy and limited education.

  3. The applicant has not been charged with any offences of any kind since 2015. It is noted that his criminal history, apart from the disqualifying offence, is limited to non-violent offences. The applicant submitted that his previous alcohol and drug consumption may have been a contributing factor to his involvement in the criminal justice system. He notes that he is now sober. This fact is corroborated by Dr Lennings and by the statement of the applicant’s partner.

  4. The applicant has been the subject of an Apprehended Violence Order (AVO) in 1994, 2006 and 2007. These have all expired. There is no evidence of the applicant having breached those AVOs.

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

  1. The disqualifying offence did not involve a child. However, any such serious offence has a detrimental effect on society, including children or young people.

  2. However, the respondent concedes and the Tribunal accepts that there is no evidence to suggest that there is anything other than a low risk of reoffending.

  3. The Tribunal notes that Dr Lennings specifically conducted a risk assessment. He noted that the applicant is an intellectually disabled person who has now been in a stable relationship and sober for 10 years. He described the risk of the applicant reoffending as “non-measurable” and says there is an extremely low likelihood of repetition of a future offence, so low that it cannot be meaningfully quantified. There is no evidence to contradict Dr Lennings’ expert opinion and the Tribunal, therefore, accepts it.

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

  1. The applicant’s submissions are set out earlier in these Reasons for Decision. Notably, he denies that he assaulted the victim and it is noted that despite this denial, he pleaded guilty to indecent assault.

  2. The applicant reported to Dr Lennings that he had a significant history of abusing alcohol and drugs until 2013, when he met his current partner. He claims that he has been sober since he met her, and there is no evidence to contradict his submission in relation to this issue.

  3. The respondent submits that the Tribunal may have concerns about the reliability of the applicant’s evidence that he has been sober since 2013 in those circumstances.

  4. In the statement, dated 24 January 2023, the applicant submitted that the children “look up to me as their pop”. He said that the children were removed from the care of their parents over a year ago and lived with their aunty. Since that time, he has had more contact with them. He said that he has had a history of visiting the children once every fortnight before they moved out of the area. He submits that when they lived further away, he would visit the children with his partner and stay for one to two months each visit. During these visits, he would help by collecting the children and some of their friends from school. He provided an affidavit of the mother of the friends of his partner’s grandchildren to corroborate this. He submitted that he loves and cares for the children and regards them as his own grandchildren. He noted that DCJ have never expressed any concerns about the safety of the children in his presence. He wrote:

“Life has been a tough journey for me. In the past I was always getting in trouble. I look back and know I’m in a better place. I’ll never go back to drugs or alcohol again because life is different now, I learnt that there is more to life. I look at people on drugs and think ‘That was me’. I feel sorry for them and wish they could turn their lives around too. That’s all behind me and has been for over 10 years. I feel lucky to have [my partner] and the support of her family and I will never go back to that lifestyle – I have too much to look forward to these days”.

  1. He provided two character references from people who have observed the applicant’s engagement with children. The Tribunal has considered these references.

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

  1. No material was obtained in accordance with the section.

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

  1. The respondent noted that the applicant became known to the Secretary of DCJ (or his predecessors) in relation to child protection concerns in 2009 and 2010. This related to his biological daughter, who was allegedly exposed to domestic violence and homelessness by the applicant and his then partner.

  2. However, the respondent noted that the records of the time confirm that the applicant was more protective of his daughter than was her mother, despite his intellectual limitations.

  3. The respondent noted that the applicant’s disqualifying offence appears to be out of character, when considered in the context of the absence of any evidence of similar offences. The respondent submitted that this suggests that any repetition of such conduct, albeit apparently unlikely, is unlikely to be directed towards a child or in the presence of a child.

  4. The respondent noted that the incident in 2006, when the applicant is alleged to have banged on his ex-partner’s doors and windows to seek entry, and which apparently frightened her child, was more than 16 years ago and was of relatively low seriousness. The respondent submits that the applicant’s conduct since then indicates that he is unlikely to engage in further similar behaviour.

  5. The respondent concedes that whilst there is some inconsistency in the evidence about the applicant’s sobriety since 2013, there is no frank evidence to suggest that he continues to consume alcohol or drugs. Furthermore, the applicant has not committed any traffic offence since 2015. The respondent submits that this represents a significant reduction in offending.

  6. The respondent also referred to Dr Lennings’ opinion and submitted that it is open for the Tribunal to rely on Dr Lennings’ risk assessment.

  7. The respondent submitted, on the basis of the matters set out above, that the applicant does not pose a real and appreciable risk to the safety of children and that the statutory presumption to the contrary has been displaced.

The statutory approach

  1. The superior Courts have set out the statutory approach that the Tribunal must apply when determining the substantive question of risk. In the current matter there is only one matter that could be considered noteworthy in determining risk to children in any adverse manner, namely the disqualifying offence.

  2. The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take.

  3. The applicant has one relevant conviction (the disqualifying offence). However, this offence did not involve a child, and occurred 21 years ago. Therefore, we attribute very little weight to the disqualifying offence for the purpose of this application.

Consideration

  1. Our substantive role is to assess risk; specifically, whether the applicant poses a risk to the safety and well-being of children and young people.

  2. We have based our consideration on all of the evidence provided by the parties in documentary form. We have also analysed the circumstances of the disqualifying offence and the applicant’s subsequent conduct.

  3. Notwithstanding the disqualifying provisions, and the positive finding against the applicant, we do not find that that the disqualifying offence demonstrates any current risk as set out by Young J in Commission for Children and Young People v V as referred to (above).

  4. We note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act. In making these findings, we are of the view that the applicant has discharged his onus under s 28 (7) of the Act.

  5. Therefore, we are not satisfied that the applicant currently poses a real and appreciable risk to children. We find that the applicant does not pose a risk to the safety and well-being of children and young persons.

Section 30 (1A) consideration and findings

  1. Having made the finding that we have, we are required to consider this section, which requires that the making of the order be in the public interest.

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

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

  1. The case of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 dealt with the ‘reasonable person test’. At paragraph 73, the Tribunal observed the following:

73. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

  1. In our view, a reasonable person would acquaint themselves with all of the evidence and submissions before the Tribunal. A reasonable person would not approach the matter with a closed mind but apply an objective test in consideration of all the material.

  2. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk. Particular regard would be had to the relevance and circumstances of the disqualifying matter and the evidence of the applicant concerning the last 25 years.

  3. Regard would also be given to the applicant’s recent history and lack of any evidence of risk to children.

  4. A reasonable person would, in our view, find that any risk was insufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A).

  5. In FNT’s situation, therefore, we find that a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work

  6. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

74. The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations.

75. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

  1. In our view there is nothing to demonstrate or suggest that that it would be contrary to public interest to grant a clearance. Having found that the issuing of a clearance would not pose an unjustified risk to the safety of children, we find that the applicant’s desire to maintain loving and supportive family relationships is in the public interest.

  2. In accordance with PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 we find that it is in the public interest to make the enabling order.

Conclusion

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

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

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

  4. It therefore follows that the applicant should be granted an Enabling Order.

Orders

  1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with.

  2. The applicant is not to be treated as a disqualified person for the offence, in respect of s 61L of the Crimes Act 1900 (NSW), for which he was convicted on 18 November 2002.

  3. The application for an enabling order is granted.

  4. Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a Working with Children Check Clearance.

  5. The Tribunal orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons is restricted.

**********

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

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: 31 March 2023

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

0

Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Young People v V [2002] NSWSC 949
ADV v Commission for Children and Young People [2012] NSWADT 8