FVD v Children's Guardian

[2023] NSWCATAD 329

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FVD v Children’s Guardian [2023] NSWCATAD 329

Hearing dates:

On the papers

Date of orders:

20 December 2023

Decision date:

20 December 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member
Prof P J Foreman AM, General Member

Decision:

1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his 2015 conviction of Sexual Assault s- 352 (1) (a) Criminal Code Qld and grants an Enabling Order.

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children check clearance.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable – enabling order – passage of time

Legislation Cited:

Administrative Decisions Review Act 1997

Children and Young Persons (Care and Protection) Act 1998

Child Protection (Prohibited Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Criminal Code (Qld)

National Disability Insurance Scheme (Worker Checks) Act 2018

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8

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

BFC v The Children's Guardian [2014] NSWCATAD 90

BFX v Children's Guardian [2014] NSWCATAD 115

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

BKE v Children’s Guardian [2015] NSWSC 523

CHB v Children’s Guardian [2016] NSWCATAD 214

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

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

CXZ v Children’s Guardian [2020] NSWCA 338

M v M (1988) 166 CLR (HCA)

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FVD (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00144680

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

1. This applicant seeks an Enabling Order under s 28 of the Child Protection (Working with Children) Act 2012 (‘the Act’) so that he may obtain a Working with Children Check Clearance (WWCCC). The applicant seeks an Enabling Order, as he is a ‘disqualified person’ under the Act.

2. The applicant is referred to as ‘FVD’ in these proceedings. FVD is the applicant's pseudonym used in these proceedings in conformity with an order made on 11 May 2023 under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

3. On 5 May 2023 FVD filed an application with the Tribunal. That application seeks an Enabling Order under s 28 of the Act. FVD seeks a finding by the Tribunal that he does not pose a risk to children, and as a result an Enabling Order under section 28 of the Act should be issued by the Tribunal.

4. These proceedings arise because on 2 May 2023, the Children's Guardian who is the respondent or contradictor in these proceedings issued FVD with a Notice of Final Decision to Disqualified Person pursuant to section 18 of the Act. FVD had been convicted of a disqualifying offence within the meaning of the Act and as a result (subject to review and the issuing of an Enabling Order by the Tribunal) is prohibited from obtaining a Working With Children Check Clearance (WWCCC).

5. There is no dispute that the application filed on 5 May 2023 has been brought within time, or that the Tribunal has jurisdiction to hear the matter.

6. FVD is a disqualified person because he has been convicted / found to have committed an offence listed in Schedule 2 of the Act. That offence was in the nature of an indecent assault which occurred outside of New South Wales, in Queensland in December 2013. The specific charge for this offence is described as sexual assault being an offence under s 352 (1) (a) of the Criminal Code 1899 (Qld) committed in 2015. In addition, there was an unrelated matter from 1991 in NSW whereby the applicant was found to have the offence of Common Assault proven by the Court but discharged without conviction. In addition, allegations arose in 2012 between FVD and his then spouse. Those matters related to allegations of assaults in a domestic violence context. All charges were withdrawn and dismissed at Court and Apprehended Violence Orders (interim or otherwise) were also withdrawn and dismissed.

7. At the conclusion of the evidence and submissions the Tribunal finds for the reasons which follow, that FVD is not a real and appreciable risk in respect of the safety and well-being of children, and that as a result he has rebutted the statutory presumption that he is a risk to the safety and well-being of children. In such circumstances the Tribunal will grant FVD an Enabling Order.

Background

8. On or about 30 March 2023 FVD applied for a Working with Children Check clearance from the Children’s Guardian. It appears to the Tribunal that FVD requires a WWCCC so that he may work in the disability sector.

9. It would appear that the stated circumstances will not involve child related work based on the context that FVD provided the Children’s Guardian. However, we understand that FVD’s prospective employer has some lawful basis for requiring FVD to hold a clearance as a condition of employment notwithstanding the availability and requirement for NDIS Worker Clearances under the National Disability Insurance Scheme (Worker Checks) Act 2018, which are a separate clearance for disability work and do not require a WWCCC unless child related work is involved.

10. In the absence of any understanding why, in those circumstances, FVD seeks an Enabling Order, having made the WWCCC application to the Children’s Guardian, and having been issued a mandatory Notice to Disqualified Person, and now seeking an Enabling Order before the Tribunal, it appears appropriate to determine the application as made. Irrespective of the lack of a legal necessity for a WWCCC, the Tribunal clearly has jurisdiction to grant or refuse the application as set out above.

11. On 2 May 2023 the Children’s Guardian issued the 'Notice of Final Decision’ to Disqualified Person pursuant to section 18, whereby on their assessment, FVD was a disqualified person as referred to in s 18 of the Act.

12. Section 18 provides:

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.

(2) The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3) The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

13. The basis of this assessment was that records indicated that the offence of Sexual Assault in the State of Queensland had been proven against FDV without proceeding to a conviction. That offence was under s 352 (1) (a) of the Criminal Code (Qld). The elements of the offence under s 352 that FVD pleaded guilty and the offence was found proven on 29 May 2015 concern what would be referred to in NSW criminal law as an indecent assault. Reference is made under s 352 (1) to ‘Any person who (a) unlawfully and indecently assaults another person; … is guilty of a crime. Maximum penalty 10 years imprisonment.’

14. The Act provides that similar offences (in respect of elements / proofs) committed in other jurisdictions in Australia are taken to be equivalent to relevantly similar offences in New South Wales and can be taken into account as satisfying the requirements of Schedule 1 or Schedule 2 of the Act.

15. Relevantly for the current proceedings Schedule 2 Clause 1 (z) provides:

(z) an offence under a law of another State or a Territory, the Commonwealth or a foreign jurisdiction that, if committed in New South Wales, would constitute an offence listed in this clause,

16. This offence (as proven) is the equivalent offence to sexual touching as set out in s 61KC of the Crimes Act 1900 (NSW). That section provides:

61KC Sexual touching

Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent intentionally—

(a) sexually touches the alleged victim, or

(b) incites the alleged victim to sexually touch the alleged offender, or

(c) incites a third person to sexually touch the alleged victim, or

(d) incites the alleged victim to sexually touch a third person,

is guilty of an offence.

Maximum penalty—Imprisonment for 5 years.

17. The offence under 61KC of the Crimes Act 1900 is located in Schedule 2 of the Act as a disqualifying offence.

18. As a result of the refusal of the clearance because of the Notice to Disqualified Person, FVD is unable to engage in child related employment in circumstances where an exemption is not available.

19. On 5 May 2023 FVD lodged his application for an enabling order. The grounds of the application are:

(1) My work has been suspended.

This assault allegedly took place in 2015.

I work in disability support with adults.

There was no conviction recorded.

I do not work with kids.

I have never had anything charge come against me.

Jurisdiction of the Tribunal

20. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature, as set out by the Court when considering s 28 of the Act: 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

21. The issue to be decided by the Tribunal is whether on the balance of probabilities FVD being presumed to be a risk to the safety and well-being of children, continues to pose such a risk to the safety and well-being of children. In reaching this position the Tribunal is required to consider whether the granting of an Enabling Order would result in a risk to the safety and well-being of children if FVD was to engage in child related work. If FVD is still considered a risk, then an Enabling Order cannot be issued. In determining whether to grant the Enabling Order, the Tribunal must consider the matters set out at s 30 (1) and (1A) of the Act, so as to determine on the available evidence whether FVD is a risk

22. In reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk. Risk is determined at the time of the decision made by the Tribunal so in that regard the Tribunal is determining an applicant’s current risk when deciding whether to grant an Enabling Order.

The working with children legislative scheme

23. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage 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.

24. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: s 4 of the Act.

25. 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.

26. 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.

27. FVD has not been subject to a risk assessment as the Children’s Guardian identified matters listed in Sch 2 of the Act as referred to above and a Notice to Disqualified Person issued without proceeding to determine his application further. However, as part of the ‘Notice of final decision’, the Children’s Guardian noted that there were other matters not resulting in negative Court outcomes that need to be considered, irrespective of whether such matters would have triggered a risk assessment had there not been a disqualifying offence.

28. Part 4 of the Act deals with reviews and appeals. Section 28 provides for an application to the Tribunal for an Enabling Order. The section relevantly 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.

(6A) To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children’s Guardian in accordance with the Tribunal’s order.

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

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

(9) (Repealed)

29. An Enabling Order is dealt with under Part 4 of the Act. Section 30 of the Act applies to all matters dealt with under Part 4 and sets out the factors that the Tribunal must consider in determining a review application in order to determine risk. Section 30(1) of the Act provides:

30 Determination of applications and other matters

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

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

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

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

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

(g) the person’s present age,

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

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

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

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

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

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

30. If at the conclusion of the s 30 (1) process the Tribunal determines that an applicant for a clearance is not a risk to the safety of children, then the Tribunal must consider the matters set out at s 30 (1A) of the Act.

(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.

31. Only after an applicant has successfully navigated s 30 (1) and (1A) can the Tribunal grant an Enabling Order. In this regard the Tribunal engages in a similar process as when an applicant is seeking an administrative review of a decision that they pose a risk (a risk assessment review). However, the onus is different when considering whether to grant an Enabling Order as opposed to conducting an administrative review.

Burden of Proof

32. There is a statutory presumption that FVD is a risk to children as an applicant for an Enabling Order under s-28 of the Act. (s 28(7)).

(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.

33. 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". ...'

34. 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.

34. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].

35. We note that since the cases referred to above ‘risk’ has now been given a statutory definition in Act at s 5B by reference to ‘risk to safety of children’.

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

The hearing

37. The matter was to be heard before the Tribunal. However, shortly before the hearing date both parties filed consent orders seeking to have the matter determined in the absence of a hearing, ‘on the papers’.

38. Section 50 of the NCAT Act sets out when hearings are required.

50 When hearings are required

(1) A hearing is required for proceedings in the Tribunal except—

(a) in proceedings for the granting of leave for an external or internal appeal, or

(b) in connection with the use of any resolution processes in proceedings, or

(c) if the Tribunal makes an order under this section dispensing with a hearing, or

(d) in such other circumstances as may be prescribed by the procedural rules.

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first—

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

(5) This section does not prevent the Tribunal from holding a hearing even if it is not required.

(Emphasis added)

39. On 28 September 2023 the Tribunal as currently constituted made an order (by consent) dispensing with a hearing pursuant to s 50 (2) of the NCAT Act. However, because the application was by consent, the provisions of s 50 (3) (a) and (b) were deemed satisfied. The Tribunal having considered the matter determined that we could proceed to decide the matter in accordance with s 50 (4) based on the material filed by the parties without the need for a hearing and taking further evidence from the parties.

Written Evidence

FVD’s written material

40. The applicant filed a number of written items in support of his application.

1. The application to the Tribunal attaching the Notice to Disqualified person and citing grounds for his application.

2. A Statement dated 7 August 2023 by FVD (received by email without objection).

3. Confirmation of employment details pending WWCCC (and NDIS Worker Screening approval) from Service Manager Solid Holistic Care dated 8 August 2023.

Other material initially generated by FVD was provided by him to the Children’s Guardian and provided to the Tribunal in their material.

Children’s Guardian’s written material

41. The Children’s Guardian filed written submissions dated 19 September 2023. They also filed and served two bundles of evidence / material:

1. Respondent’s Evidentiary Bundle filed 10 May 2023 containing criminal record and Queensland Court Brief material.

2. Respondent’s Further Bundle of Documents 16 August 2023 containing material contained by summons from Queensland Police and Justice material, Court / Brief of evidence material, s 31 material obtained by Children’s Guardian concerning AVO history.

42. As the matter was dealt with in the absence of the parties, and as in our view the material was relevant and no submissions were made to the contrary (including submissions as to weight), we received all of the material listed above without objection and considered it in making our determination.

Written submissions

43. FVD did not set out his understanding of the circumstances of his offending in his own limited material, but it is evident from the sentencing transcript before the District Court of Queensland that he was contrite. The sentencing remarks set out relevant matters to the nature and circumstances of the disqualifying offence and FVD’s attitude to the offending for which he plead guilty.

44. The transcript provides the following evidence:

Her Honour: (FVD) you’ve pleaded guilty to indecent assault. Is it indecent assault or a serious assault? Sexual assault. The circumstances of the offence involve you making an advance to a woman who was your employee but also, it seems, quite a close friend, in circumstances where she and you had both been drinking quite heavily. She, it seems, was dozing on your couch and the advance that you made involved touching her on the head and then trying to kiss her, but as soon as she moved away the kiss didn’t actually happen. She left you and you texted her apologising for your behaviour.

You didn’t make any admissions to the police, but certainly your apology it seems was sincere. You have no criminal history. It’s a plea of guilty. Your obviously a highly regarded member of the community. It’s submitted ion your behalf that this was behaviour that was motivated by what you thought as a mutual attraction that – obviously that wasn’t a reasonable belief on your behalf, but you did think that she might reciprocate your advances, and the facts seem to suggest that that is, in fact what you were thinking at the time.

It is a very unusual case. The touching was very minor and as I say, you have a good history – work history and your highly respected in the community. So in those circumstances, it seems to me that it is one of those unusual cases where a good behaviour bond is the appropriate sentence. So in relation to the offence, no conviction is recorded. Pursuant to section 19 of the Penalties and Sentences Act, I order that you be released on your own recognisance, condition that you be of good behaviour for a period of six months and that you appear for conviction sentence of called upon at any time during that six months.

45. The Children’s Guardian submitted that the likelihood of FVD reoffending and engaging in behaviour which might pose a risk to children, is low. This was because FVD had not reoffended, the offences were out of character, and there was no pattern of offending. However there was other material disclosed concerning FVD as outlined above at [6].

46. In 1991 FVD was charged with assault under s 61 of the Crimes Act 1900. (Common Assault). The victim had attended a milk bar in Newcastle and an argument between the victim and the owner ensued. (The owner was FVD’s father). FVD came from behind the counter to assist his father and struck the victim several times with a ‘baseball bat’ about the arms and head. An ambulance was called and the victim sent to Hospital for treatment. FVD made admissions to Police and was charged. FVD pleaded guilty at Court two weeks later. The circumstances being that the victim had punched FVD’s father in the eye and FVD said that he panicked. The weapon was said to be a ‘baton’.

47. FVD was sentenced to a recognizance to be of good behaviour for 12 months under the former s 556A of the Crimes Act with no conviction being recorded.

48. In 2012 FVD was charged with a number of offences (Common Assault x four) arising from an altercation with his then wife of 20 years. FVD and his wife were arguing and in the kitchen of the home a closed fist was raised by FVD to shoulder height (Police Facts). FVD alleged stated that he was going to ‘smash your face’. The wife picked up a kitchen knife and words were exchanged about AVO’s, the wife gave the knife to FVD who took it and placed it in the kitchen sink. At some stage FVD was alleged to have held it 30cm from his wife.

49. FDV assisted Police and admitted clenching his fist and saying that he felt like ’smashing’ his wife. Other matters were disclosed including that the wife was the first person to pick up and handle the knife during the altercation.

50. On the day of the hearing of the common assault charges, the prosecution withdrew all charges against FVD. The Court subsequently dismissed the charges. The apprehended Violence Order (AVO) which Police had applied for, was also withdrawn and dismissed.

51. In addition the Children’s Guardian submitted that on the basis of the material before the Tribunal, the Tribunal would find that FVD does not pose a real and appreciable risk to the safety of children.

52. The Children’s Guardian submitted that, in those circumstances, it supported the application and that the application should be granted by the Tribunal, in effect submitting that the Tribunal should make an enabling order.

53. The Children’s Guardian noted that the disqualifying offence occurred 10 years ago and did not involve a child. The Guardian submitted that the facts of the offence establish that it was at the low level of seriousness.

54. The Children’s Guardian noted that FVD has a ‘sparse’ criminal history. There is the 1981 matter resulting in a 556A offence proven no conviction recorded Court result. The 2012 matter resulted in all charges being withdrawn and dismissed. The Guardian submitted that FVD has not been subject to any workplace complaints (allegations of misconduct) or charges since the 2013 disqualifying matter.

55. On the s 30 (1A) (a) and (b) criteria (the reasonable person test and public interest test), the Children’s Guardian submitted that FVD should not be denied an Enabling Order on the basis of these requirements.

Consideration

56. Having considered the evidence and submissions we will now consider the mandatory considerations in determining the matter in the way provided for under the Act. We will refer to the evidence briefly as it has been set out in some detail above.

Section 30 (1) considerations

57. Section 30 of the Act sets out the factors that the Tribunal must consider in determining a review application. We shall consider each in turn.

(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.

58. FVD’s application to the Tribunal is brought about by a Notice to Disqualified Person. The offence leading to that notice (sexual assault) is objectively serious and carried a penalty of a maximum of 10 years imprisonment. However, taking into account the elements of the offence in the circumstances for which FVD was charged, we note that the offence is similar to the NSW offence of ‘sexual touching’ which might amount to an indecent assault and / or a commit act of indecency offence.

59. Whilst the offence is serious, we agree with the Children’s Guardian’s submission that in FVD’s circumstances of offending, the offence is at the lower end of seriousness having regard to the penalty imposed by the Court. FVD had an offence proven finding with no conviction recorded. He was given a six-month good behaviour bond of which there is no evidence of any breach. FVD’s offending did not involve children.

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

60. It is clear that the matters referred to under s-30 (1) (a) occurred in early December 2013. This is a period now exceeding a decade ago.

61. There is no evidence of any unlawful or other adverse behaviour by FVD in the intervening period of ten years that has been brought to the attention of the Tribunal by either party.

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

62. The applicant was 45 years of age at the time of his most recent offending. In respect of the 1991 common assault matter FVD was 23 years of age.

(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.

63. The victim of the disqualifying offence was 29 years of age at the time. The victim had been drinking alcohol and was female. These matters would have added to her vulnerability. FVD was the victim’s manager and employer representative and the victim was a subordinate / employee.

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

64. The difference in age between the applicant and the victim in the disqualifying matter was 15 or 16 years. As noted, the victim and FVD were colleagues and were described by the sentencing Judge as ‘close friends’.

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

65. In respect of the disqualifying offence the victim as not a child.

(g) The person's present age.

66. FVD was 55 and a half years old at the time of the determination of the matter by the Tribunal. The relevance is that offending (including sexual offending) generally declines with age and significantly past middle age.

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

67. The applicant does not have a criminal record in respect of the disqualifying offence and the other offence as no convictions were entered or recorded. His criminal history concerns the finding of offence proven on the disqualifying offence and a similar outcome on the historic common assault matter. As noted by the respondent, the amendment to the section to insert the term ‘criminal history’ is defined to include matters beyond a criminal record. As such these matters carry less weight but might be relevant if there is a pattern or a technical reason for an acquittal when considering a risk assessment. This provision now in effect includes all matters where Police Forces have commenced the process to put information on the individual before the Court, whether it results in acquittals, no billing or otherwise. Section 5C of the Act provides a statutory definition.

5C Meaning of “criminal history”

(1) A person’s criminal history includes—

(a) convictions (including convictions that have been spent, quashed or set aside or for which a pardon has been granted), despite anything to the contrary in the Criminal Records Act 1991, and

(b) criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged, and

(c) convictions or findings to which section 579 of the Crimes Act 1900 applies (despite the provisions of that section).

(2) In this section—

conviction has the same meaning as it has in the Criminal Records Act 1991.

68. FDV’s criminal history is set out earlier in the reasons. Whilst, like all disqualifying offences, it is serious, in our view it is not significantly serious when one has regard to the facts and circumstances of the disqualifying offence. The 1991 offence is moderately serious, but the circumstances are mitigated by the facts that FVD was coming to the aid of his father and ‘panicked’. The Court outcome illustrates that it was not a significantly serious matter.

69. The allegations from 2012 are just that. It is unclear on the admissions where the prima facie case against FVD lay. It may be for that reason that the matters were withdrawn in total. On the paucity of information available on those matters we simply do not know why the charges were laid and having laid the charges the matters did not proceed.

70. The information provided from DCJ to the Children’s Guardian at page 35 and 36 of the further respondent’s bundle is of no use to the Tribunal. It is a print out of a data set response which requires a link to be ‘clicked’ to open the substance of the response. As we received this information in paper hard copy form, it was of no utility to the Tribunal and does not advance any reason for the no billing or any AVO issues further.

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

71. If FVD was to repeat his behaviour from the evening of the disqualifying offence, the impact on any children exposed to such offending may well be significant. The offence did not involve children and occurred at a private location where there is no evidence that children might be present.

72. FVD apologised immediately to the victim and pleaded guilty.

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

73. There is no relevant evidence or current matters to consider under this criteria.

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

74. FVD tendered a document / in support of his basis for why he requires a WWCC clearance. We note that the document does not address whether any of the intended clients will be children. FVD’s own statement refers to his ‘non convictions’ and that he has been gainfully employed all of his adult life.

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

75. There is no material obtained under s 36A.

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

76. The Children’s Guardian submitted that NSW Police have no records of FVD being named in apprehended violence orders and they do not hold any COPS records that refer to FVD in the context of violence, child abuse or sexual offences.

77. Likewise it was submitted that there are no Department of Communities and Justice records concerning child protection matters involving FVD (see [70] above).

Consideration

78. Turning to how the Tribunal should discharge its statutory functions on the evidence we note the guidance from the Courts of record. In the case of BKE v Children’s Guardian [2015] NSWSC 523 Beech-Jones J sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Unlike the facts in BKE, certain matters in the current case are settled, in that the Courts had made a positive finding on the conduct and FVD does not dispute that finding.

79. At pars 29 of BKE the Court observed:

29. In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

80. We note that in the current matter we are not required to make positive findings on events, as the events as set out are accepted by the parties. There would be no basis on the available evidence for the Tribunal to depart from that position. Returning to BKE we note the reference to risk and unacceptable risk. At [32]:

32. The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

81. In these proceedings our substantive role is to assess risk, and whether specifically FVD poses a risk to the safety and well-being of children and young people. We have based our consideration on all of the evidence given by the parties in documentary form in the absence of a hearing. The evidence was not tested by cross-examination. However, we note that the evidence appears uncontroversial between the parties.

82. We note that the Court of Appeal in the case of CXZ has reinforced the matters central to what the Tribunal must address when the Tribunal is assessing overall risk. As Simpson AJA points out at 79 of CXZ set out at [90] above when noting that the language of M v M:

..requires the Tribunal to determine “whether on the evidence” (and that means the whole of the evidence) the applicant poses a risk to the safety of children if a clearance is granted to him.

83. In respect of the criminal allegations we adopt the findings of the Queensland District Court and note that on this basis the Notice to Disqualified Person was issued.

Finding as to risk

84. Based on a consideration of all of the evidence, and noting the guidance from CXZ we are not satisfied that FVD currently poses a real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we find that the applicant does not pose a risk to the safety and well-being of children and young persons.

85. Other than the serious nature of his offending in December 2013, and the impact such offending would have if it involved or was otherwise observed by children, there was no evidence of any direct risk to children in FVD’s behaviour.

86. However, in making this observation we note that if his behaviour occurred in the presence of children then it would be likely to cause significant harm to them.

87. 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.

Section 30 (1A) consideration and findings

88. Having made the finding that we have, we are required to have regard to this section.

89. The section requires the reasonable person to allow his or her child to have direct contact with the affected person that was not directly supervised by another person whilst engaged in child related work. In addition the section 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.

90. In our view, a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. We are of the view that a reasonable person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. 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.

91. Particular regard would be had to the isolated nature of the conduct of FVD in December 2013 and that it occurred in circumstances where FVD misread the situation. This was accepted by the sentencing Judge.

92. A reasonable person whilst approaching the matter with some caution noting the serious nature of the disqualifying offence, 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).

93. The reasonable person is required to consider the matter objectively and, in our view, would reach a similar conclusion to the Tribunal.

94. We note that 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.

95. In FVD’s situation a reasonable person would be aware of the circumstances of the offence based on all of the evidence before us. They would have particular regard to the sentencing remarks. As a result, 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.

96. We note that the Children’s Guardian submitted that the reasonable person would also know that there was no evidence to suggest that FVD had behaved improperly towards children.

97. 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.

98. We note that the Children’s Guardian referred to the case of ZZ in their written submission supporting the granting of an Enabling Order.

99. In our view there is nothing contrary to the notion of the public interest in the granting of a clearance in this matter. We find that the balancing of FVD’s right to assist in the care and support of people with disability now or in the future, contrasted with the protection of children, are in this instance complementary to care of the vulnerable and in the public interest, as the issuing of a clearance would not pose an unjustified risk to the safety of children.

100. Consistent with the reasoning in PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 we believe that it is in the public interest to grant the clearance. We note again given our finding under s 30 (1) that FVD’s level of risk is deemed to be equal to that of any member of the community.

101. As a result we find that it is the public interest to grant FVD an Enabling Order.

Conclusion

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

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

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

105. It therefore follows that the application for an Enabling Order should be granted.

Orders

1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his 2015 conviction of sexual assault s- 352 (1) (a) Criminal Code Qld and grants an Enabling Order.

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children check clearance.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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: 20 December 2023