FVE v Children's Guardian

[2024] NSWCATAD 192

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FVE v Children’s Guardian [2024] NSWCATAD 192

Hearing dates:

26 February 2024

Date of orders:

15 July 2024

Decision date:

15 July 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member
M Maher, General Member

Decision:

(1)   The decision of the respondent dated 13 April    2023 to refuse the applicant’s Working with    Children Check Clearance is affirmed.

(2)   The application is otherwise dismissed.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations -– weight of evidence of risk – current risk - whether sufficient time to rehabilitate – risk elevating factors

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Child Protection (Prohibited Employment) Act 1998 (Repealed)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

Child Protection (Working with Children) Regulation 2013

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

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 Office of the Children's Guardian [2014] NSWCATAD 111

BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164

BKE v Children’s Guardian [2015] NSWSC 523

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

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)

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

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

Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:

None

Category:

Principal judgment

Parties:

FVE (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:

(Applicant) - Self Represented
Crown Solicitor (Respondent)

File Number(s):

2023/00155907

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 administrative review of a decision by the respondent refusing his Working with Children Check clearance (WWCCC). The clearance was refused because the respondent (the Office of the Children’s Guardian) was satisfied that he posed a risk to the safety of children.

2. The respondent in processing the 28 July 2021 application became aware of a number of fairly recent offences committed by the applicant from 2011 to 2019. These involved violent conduct in the nature of assaults on persons in the applicant’s care (a child), domestic violence offences, neglect as well as engaging in cruelty to animal offences and neglect. These resulted in sustained Court findings for which the applicant served various sentences and other penalties. After conducting a risk assessment the respondent made determinative findings about the applicant’s behaviour and conduct.

3. As a result of the risk assessment the respondent made a finding that the applicant posed a real and appreciable risk to the safety of children and after seeking a response from the applicant to the proposed refusal, subsequently refused his WWCCC.

4. Whilst the applicant had undertook significant pro-social, remedial and other mitigating actions post conduct and allegations, the respondent determined that notwithstanding those actions, the applicant remained a real and appreciable risk to the safety of children, in part due to both the nature and recentness of his offending behaviour that would cause harm to children.

5. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant still at this time remains a real and appreciable risk to the safety and well being of children and young persons. As a result of the finding the decision of the respondent will be affirmed.

Background

6. The Applicant in these proceedings is referred to as "FVE". FVE is the applicant's pseudonym used in these proceedings in conformity with the order referred to at [7] (below).

7. On 8 June 2023 an order was made under s 64 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.

8. FVE applied for a WWCCC on 28 July 2021. As an applicant for a WWCCC FVE was required to disclose relevant matters so that the Children’s Guardian could determine whether (a) to conduct a risk assessment, or (b) whether a risk assessment was required by the legislation.

9. The decision to conduct the risk assessment was based on the identification of various records which concern matters listed in Schedule 1 of the Act. These matters constitute mandatory risk assessment triggers. The respondent is however able to conduct a risk assessment on any application as confirmed by s 15 (3) of the Act and the Court of Appeal Decision in Tilley v Children’s Guardian [2017] NSWCA 174 (Tilley). The records identified by the respondent were as follows:

• Common Assault (convicted 2011) FVE grabbed a 16 year old boy (resident with applicant) and pushed him against a wall.

• Common Assault (convicted 2016) assault on 14 year old female daughter.

10. FVE was also identified during that risk assessment to have engaged in other behaviours of concern in respect of animal cruelty offences between 2015 and 2019 as well as numerous Apprehended Violence Orders issued against the applicant (x 6) between 2016 and 2018 and neglect mistreatment allegations concerning his children.

11. On 16 March 2023 the respondent advised FVE that they proposed to refuse his application for a clearance on the basis of their preliminary findings that he posed a risk to the safety of children. FVE was invited to provide any further information and comment to the Children’s Guardian.

12. On 13 April 2023 the respondent completed their risk assessment and determined that FVE was a real and appreciable risk to the safety of children. As a result of that determination FVE’s application for a WWCCC was refused.

13. On 12 May 2023 FVE lodged his application for Administrative Review of the decision with the Tribunal.

Jurisdiction of the Tribunal

14. 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

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.

15. The Notice of Final Decision refusing the clearance issued under s 18 (2) of the Act was issued on 13 April 2023. FVE stated in his application that he was notified of the decision on the same day. On this basis, the application for administrative review filed 12 May 2023 at the Liverpool Registry of the Tribunal was filed one day out of time. This matter was identified in the interlocutory stages of the matter before the Tribunal, and an order was made on 8 June 2023 extending the time to lodge the application to 12 May 2023 under s 41 of the NCAT Act as necessary by approximately one day.

16. The Tribunal has power to review decisions of the Children’s Guardian concerning a risk assessment pursuant to s 27 of the Act. That section provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) A person whose clearance is cancelled by the Children’s Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(3) A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

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

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

(8) The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person’s employer.

(9) A stay order is an order under section 60 of the Administrative Decisions Review Act 1997 that stays or otherwise affects the operation of a decision that is subject to review by the Tribunal under this section.

(10) This section does not otherwise affect the operation of Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.

(Emphasis added).

17. FVE availed himself of his rights under s 27 (1) of the Act in bringing this application to the Tribunal.

The application for administrative review

18. The grounds of the substantive application (in summary) are:

I have previously been a dedicated volunteer in the RFS, … I am currently in a volunteer role and acting as Team Leader for which I require a WWCCC, …. I am saddened and ashamed of the things that I have done in my past, …. I handled those situations incorrectly, poorly and wrongly, and now I realise that I could have handled them differently, … I have taken action since to deal with my anger management, ….

19. More detailed grounds were provided in written material submitted by FVE. In his application FVE also listed a long list of achievements in his charity and volunteer work. FVE also raised a number of questions concerning the use of his offences (which he viewed as less serious than many offences), being used in effect to count against him. He also observed as part of his grounds that ‘To me it feels like I am not being given a chance to prove I have changed my ways, when I have’.

20. The issue to be decided by the Tribunal is whether on the balance of probabilities FVE poses a risk to the safety of children. In reaching this position the Tribunal is required to traverse section 30(1) and s 30 (1A) of the Act and determine the correct and preferable decision. In addition, 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. The Tribunal is not trying to hold matters against FVE or denying him a chance to prove that he has changed his ways. He may well establish that he has ‘changed his ways’. However our role is to determine in accordance with the Act whether at present he is a risk to children. As will be seen from the paragraphs immediately below, the safety welfare and well being of children is the only real matter to address in such an application.

The working with children legislative scheme

21. 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.

22. 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.

23. 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.

24. 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.

25. Other provisions of the Act deal with assessment requirements, which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)). The applicant in these proceedings (FVE) was subject to a risk assessment as the respondent identified matters listed in Sch 1 of the Act as outlined above.

26. Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions as outlined at [16] above.

27. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Section 30(1) of the Act provides:

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

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

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

Burden of Proof

28. The jurisdiction of the Tribunal under s 27 of the Act has been found to be protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

29. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

30. An application pursuant to s 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. However there is no statutory presumption that FVE is a risk to children unlike an applicant for an enabling order under s-28 of the Act, as noted for FVE at [35] below.

31. 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". ...'

32. 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.

33. 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].

34. We note that ‘risk’ is defined for the purposes of the 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

35. The matter was heard over one day on 26 February 2024. The respondent was legally represented at hearing. At the beginning of the hearing, the Tribunal outlined to FVE the practice and procedure of the hearing before the Tribunal including that he was not presumed to be a risk to the safety of children because he had not been convicted of a disqualifying offence. The Tribunal explained to FVE that we were embarking on a fresh risk assessment with the Tribunal.

36. FVE gave evidence at the hearing and was subject to cross-examination.

Written Evidence

Applicant’s written material

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

1. Exhibit ‘A 1’: grounds for review dated 10 May 2023,

2. Exhibit ‘A 2’: reference from” ‘W.G.’ (pastor)

3. Exhibit ‘A 3’ reference form ‘S. A.’ dated 22 March 2023.

4. Exhibit ‘A 4’ Personal Reference from ‘R.C.’ dated 15 Aril 2023.

5. Exhibit ‘A 5’ Reference from ‘B.H-F.’ undated.

6. Exhibit ‘A 6’ Reference from ‘C.P.’ dated 30 March 2023.

7. Exhibit ‘A 7’ Reference from ‘H.K.’ dated 22 March 2023.

8. Exhibit ‘A-8’ Reference from ‘N.H.’ dated 25 March 2023.

9. Exhibit ‘A-9’ Reference form ‘K.H.’ undated.

10. Exhibit ‘A-10’ Bundle of Certificates / Qualifications and awards obtained by FVE.

1. Exhibit ‘A-11’ report from M. Costello Clinical Psychologist dated 25 October 2023.

2. Exhibit ‘A-12’ Certificate of Attendance (FVE) Managing Strong Emotions course Relationships Australia 15/82023- 19/9/2023.

FVE also provided written submissions.

Respondent’s written material

38. The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings under s 31 of the Act and material produced under summons. However the respondent prepared a ‘Joint Tender Bundle’ which comprised relevant material from FVE, the s 58 documents and material obtained under s 31. This was received as Exhibit ‘R-1’.

39. The respondent also filed written submissions. Both parties made oral submissions at hearing.

The issues to be decided in this application

1. Is the applicant (FVE) currently a risk to children having regard to the matters under s-30 (1) of the Act.

2. If the applicant is not a risk to children, would a reasonable person allow his or her child to have direct contact with the applicant that was not directly supervised by another person while engaged in child related work?

3. If the applicant is not a risk to children, is it in the public interest that he be granted a clearance?

40. We have decided to summarise the evidence given at hearing so that the strengths of the various arguments can be clearly set out.

FVE’s Evidence at Hearing

41. In evidence in chief, FVE adopted his statement which was ‘A-1’, as true and correct. FVE advised that his youngest child ‘N’ has just turned 18 years of age and that his daughter ’C’ and her child “M’ live at home with him. ‘N’ had moved out only a few weeks prior to the hearing and was living interstate.

42. FVE said that he was currently receiving Centrelink benefits part Disability Support Pension (DSP) and part Newstart. The DSP was due to a vascular issue with one of his legs that prevented him engaging in certain types of work. He is in two different volunteer teams with his volunteer ‘employer’ one role involving what is referred to as the ’Community Pantry’ and the other role is with the Emergency Services Team whereby they provide food to the emergency services personnel.

43. FVE told the hearing that the reason he had applied for a WWCCC was because his volunteer charity had advised that the clearance was required. The Tribunal noted that most of FVE’s significant volunteer work was not ‘child related work’, but FVE said that the charity had advised him that to be in a team leader role he required the WWCCC.

44. In cross examination FVE was asked about the specific nature of his work. He said that on Thursdays his duties involve stacking the pantry at base and on Friday’s he was involved in distributing the food to recipients. FVE said that occasionally children accompanied their parents when the food was distributed, in that they would ‘bring a child with them to the food hand out days’. In respect of providing food for emergencies FVE said that this usually only occurred at incidents and on training days. FVE referred to having completed a ’Safeguarding of Children’ course and that he had now done the course twice having previously done it in 2019.

45. FVE was taken to the Psychologist report of M Costello (Clinical Psychologist). He said that the Psychologist had access to the referee reports and certificates that FVE had filed with the Tribunal.

46. FVE was taken to the reference referred to as Exhibit ‘A-5’. That reference refers to FVE pleading guilty to various offences without admissions. FVE said that he was not admitting the charges that he pleaded guilty to. FVE said that the first assault involved a young man who was being verbally abusive to his mother. FVE told him to leave his house and then picked him up and pushed him against a wall. FVE said that he moved the young man out of the lounge room and into the hall. That was where he then pushed the young man up against the wall.

47. In respect of an incident where charges arose because of a horse being neglected, FVE was asked about a RSPCA report into the matter. He said that the report said that he was allegedly whipping the animal. The horse later died. FVE said that the RSPCA said that the animal had not been properly fed. However FVE said that they had the type of food that they were told to have for that animal and that they were only following instructions in respect of the food. FVE admitted to having a poor recollection of this particular incident where by the RSPCA had reported him about this horse.

48. FVE said that he was not able to see the horse’s ribs (contrary to the view of the reporters). FVE said that they were feeding the horse twice a day as instructed with lucerne, chaff and hay. FVE said that there were actually two horses and that he believed that both horses were being fed properly. He said that there were fed in a similar manner at similar times.

49. FVE maintains that his position of pleading guilty without admissions was raised in all of his criminal matters, not just the Apprehended Violence orders (AVO’s) whereby one might consent to the continuation of the AVO ‘without admissions’.

50. FVE was asked about the assault concerning the daughter whereby he said that his wife was sick and he was wanting the daughter to help with cooking and serving the meal. FVE said that his daughter did not agree with what he was cooking and so he unplugged the wi-fi. Two other teenagers ‘S.T.’ and ‘B.H.’ were present and the daughter had her own data. FVE said that he put his arms under and around the daughter’s chest and lifted her. He denied that having lifted her he then released the grip so that she fell or ‘dropped to the ground’.

51. FVE told the Tribunal that the Sheriff had attended a property at Wilberforce to evict FVE and his family from the tenancy. FVE said that he was unable to collect his possessions. However, he went to ‘L.H.’ to obtain pet food for the animals and was forced throw it over the fence as he was unable to access the property. When questioned about the condition of the other animals such as dogs, FVE said that he did not believe that the dogs were not eating. He said that he brushed the dogs every second week as indicative of his level of care.

52. FVE agreed with the proposition that it was often hard with a young family to keep the home clean and tidy. FVE agreed with the proposition that he had difficulty managing his children at that time. FVE said that there was no real effective ways these days to discipline a child effectively and appropriately. FVE referred to things going to ‘rack and ruin’ and said that if you took technology away from a child then it was a breach of their liberties. FVE was asked what strategies he might use to discipline a child. He said that using time outs and sitting them down and trying to talk reason with them was one approach.

53. FVE was asked about some records in the tender bundle concerning children presenting with lice bites. FVE did not recall those matters having occurred. FVE was also referred to other incidents documented in the bundle concerning family and pet welfare and the condition of the premises. FVE said that whilst he honestly did not recall or believe that the incidents detailed in that material occurred he was accepting that the situation may have been as stated in those records.

54. Further reports were raised with FVE in cross examination concerning the then state of the home. Reference was made by FVE to the only problem that he could recall was when there was a cockroach plague. References to records of food being left out for children rather than being fed to them were not recalled by FVE. For example he did not recall food being left in the loungeroom. FVE said that he was not brought up to respect certain matters such as cleanliness, but that based on what he now knows he agrees that the physical environment of the home at that time was not a safe environment for bringing up children.

55. FVE was asked about some other issues concerning the state of properties that he lived in. The yard at the Schofields property was said to have a large amount of machinery lying about. FVE said that this was broken farm equipment. The reason that the children did not play in the back yard of the property was due to the temperament of the two horses not because the backyard was otherwise unsafe.

56. FVE was asked about the children having any diagnosis and stated that the child ‘N’ had obsessive compulsive disorder and attention deficit hyperactivity disorder. Both FVE and his wife have hoarding problems and problems with accumulating clutter. When asked about some material at page 263 from the bundle about the hoarding causing a safety issue FVE said that he did not believe that the hoarding was related to a fire hazard. The cockroach plagues of 2016 and 2020 were matters beyond his control.

57. FVE was asked about reports contained in the tender bundle at page 162 that he (a) only every fed the children hot dogs and (b) that there was no food in the fridge either suitable or available for the children to eat. FVE said that these assertions were plainly wrong as was a 2016 reference to there being no food in the house. He said that as a parent he provided hamburgers, sausages, meat patties, fruit, vegetable and potatoes for the children to eat.

58. FVE denied evidence suggesting that the 13 year old child was effectively required to be a maid to others. FVE said that the only time that the 13 year old was ever asked to ‘look after the children’ was when the parents were at the shops.

59. FVE was also taken to a report at page 190 of the bundle where he and the partner travelled to Queensland. The report had a reference to the younger children being left in the care of the older children. FVE said that the 15 and 16 year olds were mature and could look after the other two children for two or three days. It was during this intervention by Police that foster placements were raised.

60. FVE was also asked some questions about material at page 330 of the bundle where by it was reported that FVE had embraced a young girl at school pickup and after hugging her for a period of time he kissed her on the temple area. This matter was reported to the school and eventually Police became involved with no charges arising. FVE said that the entire matter was an attempt by the girl’s father to get FVE into trouble and was a ‘set up’. However FVE admitted that he sometimes shows affections to children in appropriate contexts such as by kissing a child on the forehead. He admitted that some actions might be considered ‘inappropriate’ when viewed with hindsight but FVE said that he believed that failing to show affection to a child was also inappropriate. He said that it ‘sends the wrong message’.

61. Another matter at page 332 of the bundle related to the School recording one of FVE’s children having a bruise on the side of their face. FVE said that this arose when the child was mucking around on polished floorboards at home and slipped and had an accident. It was put to FVE that he had actually caused an injury to his son. FVE denied this in his oral evidence.

62. At page 165 of the bundle another matter was recorded concerning the child having glass present in their foot whilst under FVE’s care. FVE said that he did not recall that incident when the child ‘C’ was aged 9 years.

63. FVE was also questioned about records indicating the presence of ‘Bourbon Slurpies’. FVE said that he and his partner did make up bourbon slurpies but that they were only for themselves and never at any time provided a child with such a thing. FVE admitted that on some occasions he might have described a drink as a bourbon slurpie but in such a context if discussed with children such a drink would not have contained bourbon or any alcohol.

64. FVE denied the account recorded at page 242 of the bundle whereby he is recorded as having dragged ‘N’ by the hair and on his face down a hallway which explained ‘N’s bruises. FVE denied reports concerning using drugs and in that context he denied ever providing drugs to children. In respect of reports of a child ‘M’ having bruising FVE agreed that this was the case but that the context was due to ‘M’ having a blood platelet condition and that as a result she bruises easily. FVE denied ever deliberately bruising other children including ’N’. When asked whether he ever recalled hitting ‘N’ FVE said that he never gave him anything more than a ‘smack on the backside’.

65. FVE was asked further questions about his parenting style and reports at page 257 of the bundle that the child ‘N’ was allowed to roam wherever he wanted to at the age of 14. FVE said that as long as ‘N’ let him know where he would be then he gave permission if he thought it was safe. Reference was made to ‘N’s undiagnosed ADHD and possible autism and that others in the extended family believed that his actions (when out trick or treating and talking to strangers) were potentially unsafe.

66. Further serious allegations contend in reports at page 384 of the bundle that FVE ‘hits children’ were absolutely denied by FVE in his evidence before the Tribunal.

67. FVE was asked about his references to being a ‘changed man’. He said that his psychologist Mr Costello sees him once a month. He said that he suffered from anxiety and had an issue whereby he would scratch his arm which caused it to bleed on occasions. In respect of anger management FVE said that it was not so much that, but rather self improvement that he was trying to achieve with treatment and become a better person.

68. Reference was made to the care records at page 282 of the bundle regarding the previous hoarding problems and that the state of the home during that subsequent assessment was much better. FVE said that the previous hoarding (which FVE described as really ‘clutter’) on a scale of 1-10 was about 8 or 9 but was now about a 5. However, FVE said that cleanliness was probably about a 3 out of 10 with 10 being the worst. FVE said that further de-cluttering was taking place, and that the house was being fumigated in two days time and a follow up treatment in two weeks time. When contrasting his domestic environment from 2016 to now FVE said that the whole attitude has changed as he is in a better headspace now and a better situation.

69. In respect of the common assault charges FVE said that he had handled matters poorly and that he really should have just walked away rather than escalate matters. He said that he did not believe that it was really necessary to waste Police time with the matters. FVE said that today he would have handled a similar situation very differently.

70. In respect of the recommendation that he see a psychiatrist FVE said that he was currently awaiting an appointment. He said that he was referred to a Psychiatrist due to his PTSD.

71. In re-examination FVE was asked some questions about the animal neglect / cruelty charges. FVE said that the child, ‘M’ was going through a ‘horse phase’ and that the ‘livestock feed woman’ had given them advice about feeding and caring for the animal. Because of ‘M’s desire to have a horse that was why they were living at Schofields.

72. The Tribunal asked some questions of FVE consistent with its powers under s 38 of the NCAT Act. In respect of his income and work hours in addition to his significant volunteer work FVE said that he was currently working in a donut van as a supervisor and was doing about 15 hours a week.

73. FVE said that this work did not require a WWCCC except when the van was on site at the Royal Easter Show. In respect of his current domestic situation FVE said that the pool was dysfunctional when they moved in. In respect of animals at home FVE said that they had one dog only, which was what was allowed on the lease.

Submissions

Applicant’s position / submissions

74. Both the applicant and respondent provided written submissions and made oral submissions at the end of the receipt of evidence. The applicant’s oral submissions were brief and to clarify matters the Tribunal paraphrased FVE’s submissions on record from the filed material.

75. FVE agreed with that approach. In summary his position was that he had some challenges bringing up his children but was now a changed person to the person who had previously come before the Courts.

76. FVE referred to his attempts to better himself and his devotion to his volunteer duties such as with charities where he assisted the needy. FVE referred to all of his referees and mentors being aware of all relevant matters in his past and was happy for further matters to be verified by the Tribunal. FVE referred to his children (who were now adults or very soon to be adults). The daughter who the initial charges related to was now 23 and FVE attributed the problems at that time to both his and her undiagnosed disorders. His son has had mental health issues and that he has supported him, and the children are now very close to FVE.

77. FVE also referred to the discrimination and negative impact on his employment prospects a lack of a WWCCC was creating for him.

Respondent’s position / submissions

78. In oral submissions at the conclusion of the evidence the Children’s Guardian submitted that the central matter for the Tribunal is whether FVE is a risk to the safety of children. They submitted that the Tribunal must consider the whole of the evidence before it, not just the recent evidence, The task for the Tribunal is to review all of the evidence rather than any task of FVE or the Children’s Guardian proving or disproving a matter. It was submitted that the risk posed by FVE is neither fanciful or theoretical, it is a risk that has previously materialised.

79. The Children’s Guardian submitted that the threshold for risk was fairly low and relied on the observations of the Court in the cases of BKE – v Children’s Guardian [2015] NSWSC 523 and the case of CXZ v Children’s Guardian [2020] NSWCA 338.

80. Reference was made to the case of Tilley (see [9] above) whereby Basten JA observed at [35] that it is open to take into account a series of unproven allegations when considering risk:

35. The advocate for the applicant submitted that if the chances of each set of allegations being true were less than 50%, the possibility of such events occurring in the future was even more remote than the possibility of the past events having occurred. However, that logic cannot be accepted. The fact that there were a series of allegations of sexual misconduct, over a period of years, in different locations, and from apparently entirely independent complainants, is material upon which the Children’s Guardian and the Tribunal were entitled to act. It is not logical to suggest that the risk declines with the number of independent though unproven allegations of similar misconduct.

81. In respect of the psychology report of Mr Costello the Children’s Guardian submitted that the only conclusions can be drawn from it are that FVE is not suffering from a mental health condition which would make him a danger to children, as opposed to risk. However it was also submitted that Mr Costello was not provided with any background material other than the referee reports. The Children’s Guardian submitted that the report is ‘illogical’ in how it deals with the two fairly recent convictions for common assault of children.

82. In respect of dealing with the referee reports the Children’s Guardian submitted that Exhibit ‘A-5’ from ‘B.H-F’ was the strongest as the author had known FVE for almost two decades. However Exhibit A-4’ (‘T.C’s reference) was criticised because it failed to refer to the risk assessment matters and glossed over FVE’s shortcomings.

83. The Children’s Guardian submitted that FVE had a significant child protection history with the Department of Communities and Justice (DCJ) and that history was at the ‘high end’. The Children’s Guardian submitted that the two assaults occurred in the context of FVE inappropriately handling children under his care and resulting in neglect. However they conceded that matters about the responsibility for care go to both parents not just FVE.

81. The Children’s Guardian submitted that there is no question or doubt as to FVE’s improved social and domestic situation since the events occurred, however that situation should be viewed in the context that FVE’s children have now grown up and to the extent that is relevant those children can now assist themselves.

82. The significant submission of the Children’s Guardian was as follows: The evidence indicated that the hygiene, health, nutritional and emotional needs of children were not met by FVE’s behaviour and that the failure to provide a safe environment for children in his care was significant. They submitted that all but one allegation against FVE is possible to have a finding on, noting the guidance from CXZ. The only allegation that appears baseless is the allegation of FVE shoving his son’s head into a table. That allegation it was submitted was groundless.

83. In respect of the cruelty to animals matters the Children’s Guardian submitted that FVE was in control of these animals and was capable of identifying the animal’s needs, namely the need for food and veterinary care. The Children’s Guardian submitted that this failure was similar in aspects to the failure to care for children and would cause the reasonable person to have concerns about any child in FVE’s care.

84. In respect of the public interest the Children’s Guardian submitted that the term should be read having regard to the Act and the context in which it is founded. One needed to have regard to the objects of the Act and in respect of FVE the internal policy considerations of his employer / volunteer organisation. These matters in allowing FVE to be engaged in accordance with those internal policy requirements are of minimal public interest weight and it was submitted are not matters which the Tribunal can take into account.

Consideration

Section 30 (1) considerations

88. 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.

89. FVE’s application to the Tribunal is brought about by an adverse risk assessment triggered by the respondent becoming aware of a series of matters concerning violent behaviour. These matters are serious in that most of the matters caused harm to children and the others had the potential to cause harm. The peripheral matters arise in the context of harm and neglect to children and as such FVE’s behaviour involved physical and mental harm to the children in his care.

90. The matters are outlined above and below in some detail but involved two assault charges whereby children were the victims as well as other neglect offences in a domestic context irrespective if the direct victims were animals.

91. The matters that caused the assessment are set out at [9] above. FVE’s conduct is considered serious noting the nature of the offences, the fact that the most serious matters were offences of violence and that those offences involved child victims.

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

92. It is just over four years since the most recent allegation of neglect (infection) and assault, being the allegation of physical violence towards the child ‘N’ was said to have occurred. It is just over six years since the allegation of neglect (denying medical treatment to the child ‘M’) and eight years since the most recent criminal matter involving an assault on a child.

93. It is clear that the matters referred to under s-30 (1) (a) cover a nine year period form 2011 to 2020.

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

94. FVE was aged 32 to 40 at the time of the most serious allegations.

(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.

95. In respect of the trigger matters the victims were children aged 14 and 16 at the time of the assaults for which FVE was convicted. In respect of the matters that were not dealt with to the criminal standard the victims were 13 and 14 years of age. The victims were all children, they were especially vulnerable as FVE was an adult in authority over them and he was a man in his 30’s.

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

96. Based on the age range set out (above) the difference in age between the applicant FVE and the victims of the first and second domestic offences ranged from 16 to 23 years. The relationship was of parent or step parent and child.

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

97. In each instance FVE knew the age of the children victims and knew that they were a child under 18 at the time of the matters.

(g) The person's present age.

98. FVE was 44 years old at the time of the hearing. The relevance being that 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.

99. FVE has a criminal record showing a criminal history central to this application. In 2011 FVE was convicted of common assault on a child. In 2015 FVE was convicted of committing an aggravated cruelty on an animal (horse).

100. In 2016 FVE was convicted of common assault on a 14 year old child. In 2018 FVE was convicted of three offences concerning animal cruelty / neglect concerning dogs in his care. Various AVO’s had issued during this period whereby FVE was named as the defendant. In addition a number of allegations which did not proceed to charges were made in the context of FVE’s parenting in the period 2011 to 2020. These matters were only finalised in October 2022.

101. As noted FVE’s offending continued up until 2019 (the most recent animal cruelty matters), and since that time with the resolution of community services / DCJ investigations, FVE has no subsequent adverse reports.

102. Generally having regard to the material before the Tribunal and considering his references, FVE has at least for the last three years engaged in positive and pro-social behaviour.

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

103. FVE provided a Report from his Clinical Psychologist which following testing and assessment provided an opinion that FVE does not suffer from any mental health conditions that would cause him to be a danger to children. His clinician also opined that he did not believe that the matters of which FVE was previously charged with suggest that he is a danger to children.

104. FVE has engaged in significant volunteer work with charities and State Government emergency services volunteer memberships. In respect of the charity work FVE has completed programs around safe and respectful interactions. As noted by the Children’s Guardian FVE has spent five years building up a pro social network through his volunteer work. Whilst the Children’s Guardian submitted that FVE remained very likely to repeat his violent and neglectful conduct towards children they conceded that there is now evidence that his risk of harming children has reduced somewhat.

105. The Children’s Guardian submitted that whilst the risk had reduced, it remained real and appreciable as the positive matters had only been in place over the recent years prior to this application and hearing. Generally it was uncontroversial that if FVE was to repeat his behaviour which was directed towards children, then the impact of children would again be significant causing physical and potentially psychological / psychiatric injury in child victims and observers. It is clear that if FVE’s violent behaviour was to be repeated in any way towards children or with children present, then it would cause harm to those children.

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

106. There is one relevant matter to consider under this criteria which concerns safety and well being of animals. FVE remains under a condition until May 2026 that he not own or be a person in charge of any animal other than domestic cats and dogs which he may own. All other previous Apprehended Violence Orders and conditions of sentences having by now expired.

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

107. FVE tendered a large number of character references in support, and the Clinical Psychologist report. He has expressed regret for his actions and then Tribunal noted signs of remorse during the giving of his evidence. None of his character witnesses were required for cross-examination at hearing.

108. It appears that FVE has had limited treatment (other than three or four sessions) with Mr Costello to learn adapting strategies and modify his behaviours of concern. He has however done a number of self improvement and awareness type courses with his current charity operator. He has developed a strong pro-social network and his risk has clearly diminished from a few years prior. The report however does not indicate any significant knowledge or information used in the assessment concerning the offending and the context of FVE’s domestic life and parenting. The information before the Clinical Psychologist was mainly limited to favourable character references and the specific charges only.

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

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

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

110. The Children’s Guardian submitted that FVE currently presents a risk to children notwithstanding his journey of rehabilitation in recent years. This had coincided with FVE not being required to continue parenting as his children were attaining adulthood.

Further consideration

111. Consistent with their position throughout the hearing the Children’s Guardian referred to the statutory test from the case of BKE as to how the Tribunal should make findings of fact and assessment of risk.

112. At [33] of BKE – v Children’s Guardian [2015] NSWSC 523 the Supreme Court observed:

.. it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

113. It was submitted that the Tribunal’s task is not limited to considering risk in the context or nature of child related work, but whether FVE poses a risk to the safety of children. The Children’s Guardian submitted that following the s 30 (1) consideration the Tribunal would arrive at the same outcome as the Guardian had when considering the facts in the context of s 15 (4) of the Act. In addition they submitted that even if the Tribunal passed through the s 30 (1) without making a finding that FVE was a risk, the s 30 (1A) criteria would bar FVE obtaining a clearance.

114. As noted at [112] the case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Like the facts in BKE, certain matters in the current case were not settled, in that the Courts had not been a position to make any positive findings on the conduct and the applicant, especially in respect of FVE’s alleged neglect and mistreatment issues. However the main matters traversed have been subject to Court adjudication being the two assaults on children.

115. At pars 29 - 33 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).

30. Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at p 70).

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

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

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

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

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

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

116. As is regularly observed by the Tribunal rather than focusing on matters in a person’s history in addition to the mandatory s 30(1) considerations, our substantive role is to assess risk, and whether specifically FVE currently poses a risk to the safety of children and young people. We have based our consideration on all of the evidence given by the FVE at hearing (and in documentary form), and for this reason we have set out above much of the evidence adduced at hearing.

117. The important matter to consider is that our ultimate task is to consider whether at present FVE poses a risk to the safety of children. Matters as to FVE’s credibility were not really in issue. He did show some insight into his circumstances and recorded behaviours even if he and his referees believed that the guilty plea was given for pragmatic rather than honest reasons.

118. We note that FVE’s recovery and rehabilitation may go some way to assisting us in determining risk. However risk is determined on the basis of all relevant evidence before the Tribunal. In particular the nature of the offending, even if it is at the lower end of offences of violence under the Crimes Act 1900, that offending occurred in the context of FVE being in authority over children, and his children were the victims. The matters are not very distant in the past and as such the recent nature of FVE’s transgressions in the absence of any expert evidence as to risk (rather than danger to children) elevate his risk even if his life has been exemplary in the last few years. In making this observation we note that FVE has not been presented with the same challenges and situations in the last few years that he was in the earlier decade. In that regard in the absence of better evidence we believe that a risk of some basis which is both real and appreciable remains.

Findings

119. As the task of the Tribunal is to determine risk, then consideration of allegations and the need to make findings about them is relevant only to that task. Risk is to be assessed in respect of the present and future not an applicant’s past risk to children. However past behaviour can be an indicator of future behaviour being a concept accepted by criminal courts in sentencing.

120. Overall we observe that in respect of the matters, FVE’s actions were serious. Risk is elevated because those matters involved children. Where we observe that they were not indicative of risk to children we do not need to make any further finding about that matter as we do not have direct evidence on the impact of those behaviours including any matters arising from the mistreatment of animals. However, the evidence leads us to the conclusion that the children in FVE’s care would have suffered harm.

121. The totality of the evidence supports a position where FVE was unable to regulate his behaviour in a context whereby he was confronted with challenging behaviour of a child on more than one occasion, behaviour which resulted in Police intervention and a formal prosecution and convictions.

122. Whilst there has been significant improvement in FVE’s behaviours and attitudes towards others by his immersion in pro-social matters, all of which are commendable, we cannot be satisfied that at present FVE does not pose a real and appreciable risk to the safety of children.

123. In the case of CXZ v Children’s Guardian [2020] NSWCA 338 the Court considered the protective rather than punitive nature of the Act and the working with children scheme.

124. Based on a consideration of all of the evidence, we are satisfied that FVE currently poses a real and appreciable risk to children.

125. In our view that risk is greater than that of any adult harming a child in reference to the observation of Young J in the case of ‘V’, at [42].

'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". ...'

126. 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.

127. It is of some limited relevance to note that with the passage of time and no further matters coming to attention this finding might change in future. We note the trajectory that FVE has embarked upon of betterment and putting his energies to productive use. It may be that with the passing of further time the current elevated risk (above that of any adult) will have abated. We obviously make no finding or further comment on this observation.

128. In reaching this position we note that it is a protective jurisdiction, and that the interests of the safety and well-being of children override any other interests.

Section 30 (1A) consideration and findings

129. 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.

130. Having made the finding that we have, we are not required to have regard to this section because we are not making an order under Part 4 of the Act which has the effect of enabling a person (the affected person) to work with children in accordance with this Act

131. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. As we are not making an order under Part 4 of the Act which has the effect of enabling a person (the affected person) to work with children, we are also not required to address this section.

Conclusion

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

133. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that FVE currently poses a risk to the safety of children.

134. In our view, having regard to all of the material before the Tribunal, we therefore find that FVE currently poses a risk to the safety of children.

135. It therefore follows that the correct and preferable decision is to affirm the decision of the Children’s Guardian dated 13 April 2023 to refuse the application for the clearance and dismiss the application.

136. The application will therefore be dismissed.

Orders

1. The decision of the respondent dated 13 April 2023 to refuse the applicant’s Working with Children Check Clearance is affirmed.

2. The application is otherwise dismissed.

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: 15 July 2024