Fvo v Children's Guardian

[2023] NSWCATAD 323

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FVO v Children's Guardian [2023] NSWCATAD 323

Hearing dates:

5 October 2023

Date of orders:

14 December 2023

Decision date:

14 December 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Anderson, Senior Member
K Stubbs, General Member

Decision:

1. Order pursuant to section 28(1) of the Child Protection (Working with Children) Act 2012 declaring that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act in respect of the offence of Sexual Assaults contrary to Schedule 1, cl 352(1)(a) of the Criminal Code Act 1899 (Queensland).

2. The application for an enabling order is granted.

3. Order pursuant to section 28(6) of the Child Protection (Working with Children) Act that the Children’s Guardian is to grant the applicant a Working with Children Check Clearance.

4. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Catchwords:

ADMINISTRATIVE LAW-application under section 28 Child Protection (Working with Children) Act 2012 - refusal by Children’s Guardian in relation to a disqualified person - where paramount concern is protecting children from child abuse - onus of proof in an enabling order application under section 28 - whether finding on the balance of probabilities is able to be made - whether there is an unacceptable risk of harm – whether a real and appreciable risk is posed by the applicant to the safety of children.

Legislation Cited:

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

Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)

Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW)

Child Protection (Working with Children) Regulation 2013 (NSW)

Children and Young Persons (Care and Protection) Act 1998(NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Criminal Code Act 1899 (Queensland)

Evidence Act 1995 (NSW)

Penalties and Sentences Act 1992 (Queensland)

Cases Cited:

ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1

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

BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126

BFX v Children’s Guardian [2014] NSWCATAD 115

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

BKE v Office of the Children’s Guardian [2015] NSWSC 523

BKV v Children’s Guardian [2015] NSWCATAD 65

Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

Browne v Dunn (1893) 6 R 67 (HL)

BYR v Children’s Guardian [2013] NSWADT 310

BZU v Children’s Guardian [2016] NSWCATAD 3

Carr v Simnovic (1980) 26 SASR 263

CGR v Office of Children's Guardian [2018] NSWSC 26

CHB v Children’s Guardian [2016] NSWCATAD 214

Children’s Guardian v BQJ [2016] NSWSC 869

Children’s Guardian v CFW [2016] NSWSC 1406

Children’s Guardian v CKF [2017] NSWSC 893

CJT v Office of the Children’s Guardian [2016] NSWSC 738

CLK v Children’s Guardian [2016] NSWCATAD 183

Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27

Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205

Commission 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 VR [2012] NSWSC 1385

CSZ v Children’s Guardian [2017] NSWCATAD 57

CXZ v Children’s Guardian [2020] NSWCA 338

Isles & Nelissen [2022] FedCFamC1A 97.

Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32

LA v Commissioner for Children and Young People [2012] NSWSC 1454

La Macchia v Minister for Primary Industry (1986) 72 ALR 23

M v M [1988] HCA 68; 166 CLR 69

Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590.

Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395

New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173

NU v NSW Secretary of Family and Community Services [2017] NSWCA 221

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

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

Re A Solicitor’s Clerk [1957] 1 WLR 1219

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

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR

Re Sophie (No 2) [2009] NSWCA 89

Roberts v Balancio (1987) 8 NSWLR 436

Secretary, Department of Justice v LMB; Secretary, Department of Justice v P M Y [2012] VSCA 143

SL v Secretary, Department of Family and Community Services [2016] NSWCA 124

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

ZZ v Secretary, Department of Justice [2013] VSC 267

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FVO (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00168352

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for Decision

Introduction

1. The applicant is known by the pseudonym “FVO” in these proceedings in order to protect the identity of the applicant. Disclosure of the identity of FVO would also identify persons associated with the applicant which is not in the interests of associated children and young persons, and since it is the decision of the Tribunal that the applicant will be granted an enabling order, it is not in the interests of justice or in the public interest to publish the applicant’s name. It is appropriate to protect the identity of the applicant with a nonpublication order and use of the pseudonym. The respondent supports the grant of an enabling order.

2. On 1 April 2023 the applicant applied for a Working with Children Check Clearance (WWCC) nominating Residential Services as the child related employment sector.

3. On 2 May 2023 the Children’s Guardian wrote to the applicant and informed him that his WWCC application was refused pursuant to section 18(1) of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”) because he is a disqualified person.

4. The respondent must not grant a WWCC to a disqualified person.

5. FVO filed in the Tribunal an application for an enabling order under section 28 of the Act on 26 May 2023.

6. The application for the enabling order was heard by the Tribunal on 5 October 2023. The applicant gave oral evidence in support of his application and answered the questions which were posed in order to provide sufficient information to consider the application in terms of the legislation. The applicant was unrepresented and the information provided in documentary form was insufficient to consider the matter and discharge the onus on the applicant.

7. The decision of the Tribunal will comply with the Act provided that the matters which must be considered in section 30 of the Act are taken into account: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

8. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.

9. A conditional grant of a clearance for the purpose of allowing the applicant to work with conditions and in the chosen area is not permitted by the legislation. Thus, a determination in favour of the applicant cannot be made upon conditions.

10. An order has been earlier made under section 64(1) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. That order is continued and made in accord with the current practice of the Tribunal.

11. In summary, after carefully considering at length the material relied upon by the parties, the additional oral evidence, and the helpful submissions, the Tribunal has determined that the applicant should be granted a Working With Children Check clearance for the reasons which follow.

The evidence relied upon in the hearing

12. In addition to the Application filed annexing the decision refusing the Working With Children Check Clearance, the applicant and respondent relied upon the documents which were tendered and marked as Exhibits as follows:

1. Application filed by the applicant dated 26 May 2023: Exhibit 1;

2. Applicant’s bundle of documents filed 10 August 2023: Exhibit 2;

3. Applicant’s statement filed 21 September 2023: Exhibit 3;

4. Wife of the Applicant’s written statement filed 10 August 2023: Exhibit 4;

5. Respondent’s Bundle of documents filed 26 July 2023: Exhibit 5;

6. Submissions of the respondent filed 11 September 2023: Exhibit 6.

13. The material relied upon by the parties in evidence has been considered and where appropriate that evidence is referred to in these reasons.

14. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact is determined upon the civil standard of proof which is on the balance of probabilities.

Legislative Provisions relevant to the decision

15. The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are also referred to in the submissions and these reasons necessarily involve some repetition of previous statements made in earlier decisions, so that the legislative basis of this particular decision is transparent and identified.

16. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows:

"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."

17. There is no definition of “child abuse” contained in the Act. The Children’s Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.”

18. The section shows that it is considered by the legislature to be a serious matter which may result in imprisonment upon conviction. It is obvious that the offence of “abuse” is defined by 3 separate types of harm: i) physical injury or sexual abuse; ii) emotional or psychological harm likely to damage emotional or intellectual development or in fact has caused such damage; iii) physical development or health being significantly harmed.

19. The objects of the Act are set out in section 3 which provides:

"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."

20. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."

21. "Conviction" as defined in section 5 (1) of the Act “includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.”

22. The definition of "risk to the safety of children" is a reference to a real and appreciable risk to the safety of children: section 5B of the Act.

23. Pursuant to section 14 of the Act a person becomes subject to an assessment requirement in the circumstances referred to in the section which is as follows:

14 Assessment requirements

A person is subject to an

"assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.

24. The circumstances in which the Children’s Guardian may conduct a risk assessment are not limited by the reasons set out in subsection 15 (1) or subsection 15 (2). The section relevantly provides as follows:

“15 Assessment of applicants and holders

(1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder.

...”

25. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

26. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.

27. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

28. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

29. A person is not entitled to apply for an enabling order if they satisfy both subsections 26(1) and 26(2) of the Act. The disqualifying offence in relation to the applicant is referred to in subsection 26(1)(a)(ii) of the Act. However, none of the criteria specified in subsection 26(2) are satisfied in relation to this matter.

30. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, 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].

31. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523.

32. The Tribunal is required to follow the decision in the Supreme Court BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [30]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in the often-cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order:

“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.”

33. It is also not necessary for the Tribunal to make any findings that allegations not the subject of convictions in fact occurred: Children’s Guardian v BQJ [2016] NSWSC 869 at [64] per Button J.

34. The Court of Appeal has considered the issues relating to risk in CXZ v The Children’s Guardian [2020] NSWCA 338. It is instructive to extract from the decision of Simpson AJA (with whom McCallum JA agreed) at [56]-[59]:

1. In Tilley v Children’s Guardian [2017] NSWCA 174 Basten JA (with the agreement of Meagher and Leeming JJA) referred to M v M and said at [34]:

   “The Court noted that some allegations might be seen to be well-founded, while others may be seen as groundless. However, the Court accepted that there would be allegations falling into an intermediate category which were nevertheless relevant to the assessment of future possibilities or likelihoods, which lay at the heart of the Family Court’s function in determining appropriate orders with respect to custody and access, for the welfare of a child.”

1. None of these decisions endorses the proposition that, in respect of every allegation raised by the Children’s Guardian against an applicant for a clearance, the Tribunal must engage in the three-step process for which the respondent contends. The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.

2. It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.

3. The High Court did not, in M v M, have in mind a case such as the present where a series of disparate allegations are presented as a basis for refusing a clearance. It merely referred to allegations that “the father had sexually abused the child”. There was no indication of the number of times on which the abuse was alleged to have occurred, nor the nature of the abuse alleged, other than that it was of a sexual nature. Certainly the High Court did not suggest that each such allegation ought to have been assessed and determined serially. Yet that is the effect of the proposition now being advanced on behalf of the respondent.

   35. In NU v NSW Secretary of Family and Community Services [2017] NSWCA 221, Beazley P (McColl JA and Schmidt J agreeing) stated at [55]-[59]:

4. However, as the High Court pointed out in M v M at [22], an inability of the court to make a positive finding of abuse does not conclude the question of the appropriate order to be made, in that case involving custody or access to a child, where the paramount consideration is the “best interests of the child”. The same position applies to the appropriate order to be made under the Care and Protection Act. Having regard to these principles, the primary judge was required to assess the evidence to determine whether K would be exposed to an unacceptable risk of sexual abuse if restored to the care of her parents including her father.

5. NU’s particular complaint is that he was denied procedural fairness, whether that be pursuant to the rule in Brown v Dunne or some more general principle of procedural fairness, in circumstances where his denial of sexual abuse was not the subject of cross-examination. It is well established that a failure to afford procedural fairness, where there is a requirement to do so, constitutes error of law which is jurisdictional in nature: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [26]-[42] per Gaudron and Gummow JJ (Gleeson CJ agreeing); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [213] per Kirby J; Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 186 per Handley JA.

6. It is also well established that a finding made in the absence of cross-examination may involve a denial of procedural fairness: see rule in Browne v Dunn. The meaning of the rule in Browne v Dunn was explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 at 16:

   “It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.”

7. There is a clear corollary of the rule, namely, that if a witness is on notice of the allegation upon which a party intends to rely and is on notice that his or her evidence is contested on that issue, the rule does not mandate that the witness be cross-examined on the matter. This was explained in Browne v Dunn by Lord Herschell LC at 71, who pointed out that there was no obligation to raise such a matter where it is:

   “… perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling … All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”

See also West v Mead [2003] NSWSC 161 per Campbell J at [94]-[97].

…

1. In the present case, it is unnecessary to determine whether there would have been a denial of procedural fairness had NU not been cross-examined on his sworn denials of having sexually assaulted J. Nor is it necessary to determine whether there is some other or additional principle of procedural fairness that ought to have governed the conduct of the matter. NU was clearly on notice that the allegations of sexual abuse preceding the alleged occasions in March 2013 were in issue.

2. The evidence before the Children’s Court and on appeal in the District Court included the JIRT interview and the transcript of J’s cross-examination in the criminal proceedings, which included extensive cross-examination on her allegations of earlier abuse occurring over a number of years. It also appears that no application was made that J give oral evidence in either court. The Court was informed that it is unusual for a child witness to be required to attend to give oral evidence.

   36. In Isles & Nelissen [2022] FedCFamC1A 97, Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ, at [55] considered the issue and manner of assessment of future unacceptable risk and explicitly approved the decisions in CXZ and NU.

   37. The likelihood of future abuse or future unacceptable risk of harm is a matter which is not dependent on a finding that a past event occurred on the balance of probabilities or on the Briginshaw standard of satisfaction in relation to proof.

   38. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions and if granted the Tribunal will also order the Children’s Guardian to grant a clearance: section 28 (8) of the Act; see BKE v Office of the Children’s Guardian at [23]-[26]..

   39. The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children’s Guardian [2015] NSWCATAD 65. This approach is supported by the decision of the Supreme Court in BKE v Office of the Children’s Guardian at [23]-[26].

The Issue

40. There is a presumption in proceedings under section 28 of the Act that the applicant poses a risk to children if the applicant is a disqualified person seeking an enabling order: section 28(7) of the Act and BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].

41. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

42. The issue is that the Tribunal has to be affirmatively satisfied that the applicant does not pose a real and appreciable risk to the safety and well-being of children.

Considerations and the Evidence

43. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application.

44. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the decision will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

45. Section 30 of the Act relevantly provides in relation to this application as follows:

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.

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

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

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

(2)  On an application under section 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

46. The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under subsection 30(1) and subsection 30(1A) of the Act. The evidence described is recited under subheadings referring to the required considerations under the Act.

47. Also, as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant and the circumstances around the applicant’s conduct: section 63 of the Administrative Decisions Review Act.

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

48. The applicant is a disqualified person as set out earlier in these reasons.

49. The disqualifying offence was heard in 2017 in the Magistrates Court in Queensland. The applicant was found guilty of the charge of sexual assaults under schedule 1 clause 352 (1) (a) of the Criminal Code Act 1899 (Queensland) with no conviction recorded. The applicant was fined $1,500 and ordered to pay compensation to the victim in the amount of $1,500.

50. The applicant was a patron at a hotel and the victim was the master of ceremonies at a bearded man contest. Just before 10 pm the victim was packing up after the event and bent down to roll up a grass carpet. The applicant was seated on a stool behind the victim and he was alleged to have reached his hand under her dress and touched her on the vagina (or perhaps more accurately the pudenda) on the outside of her underwear. The applicant was then removed from the hotel by security. The police attended the location at approximately 10 pm and found the applicant seated on a grass verge in an adjacent street approximately 100 m from the hotel. The applicant was observed to be extremely intoxicated and kept saying: “I haven’t done anything”.

51. On observing the CCTV footage of the incident, it was confirmed that the victim was sexually assaulted as alleged. It showed that the applicant reached out in the direction of the victim’s buttock area, the victim immediately turned around and confronted the applicant, before walking away in a clearly distressed state. This was clearly inappropriate touching of another person in a sexual way without their consent.

52. The applicant was arrested and charged with the offence of sexual assaults on the same evening.

53. Section 5 of the Act contains the following definitions:

conviction includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.

criminal history—see section 5C.

54. Section 5C of the Act defines further:

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.

55. In addition to the disqualifying offence the applicant has 2 more convictions as defined by and for the purposes of the Act recorded in his criminal history. In November 2005 the applicant was found guilty of the charge of obstruct police officer with no conviction recorded, and he was fined $300. In February 2009 at a Local Court in New South Wales, he was convicted of driving with a low range prescribed concentration of alcohol (PCA), fined $500 as well as being ordered to pay $73 in court costs, and disqualified from driving for 4 months.

56. If the disqualifying offence had occurred in New South Wales it would constitute an indecent assault under section 61L of the Crimes Act 1900 (NSW). That offence was repealed with effect from 1 December 2018. This offence carries a penalty with a maximum term of imprisonment of 5 years. This offence is specified in the Act in schedule 2 clause 1 (1) (z) by reference to clause 1 (1) (e). The offence in the Queensland Criminal Code specified a maximum penalty of 10 years imprisonment.

57. The disqualifying offence is an objectively serious offence.

58. The conduct of the applicant did not result in a custodial sentence and was found that the lower end of the scale seriousness with no conviction recorded pursuant to section 12 of the Penalties and Sentences Act 1992 (Queensland). The penalty imposed was a fine of $1500 and $1500 in compensation to the victim.

The period of time since those offences or matters occurred and the conduct of the person since they occurred

59. The disqualifying offence occurred in 2017.

60. The applicant has had no further convictions or charges and no involvement with the police reported for more than 6 years.

61. The period of time which has now elapsed since the offence occurred is significant in the context of the applicant’s circumstances.

62. The applicant is married and has 4 children. The applicant’s wife describes him in favourable terms as a father and an “exceptional husband” who is a hard worker. They own their own small business. The children are active in their local sporting and school community. The applicant and his wife also wish to volunteer their time for the benefit of their local community.

63. During this time since the offence the applicant has taken steps to address his drinking behaviours, which was confirmed by his additional oral evidence, and the report from his wife in her evidence. The applicant lost about 25 kg in weight and reduced his alcohol intake, while becoming healthier. The applicant reported his liver function to be healthy. The applicant has addressed his previous issues with alcohol and shown a level of honesty and maturity in confronting this which is commendable. This was confirmed by the applicant’s wife in her statement. The applicant gave further oral evidence which supports the view that he is remorseful and does not wish to have a repeat of any offending behaviours. The applicant impressed as having an acceptable understanding about the triggers for his previous behaviour by having addressed them and progressed in his personal development by not repeating them.

The age of the person at the time the offences or matters occurred

64. The applicant was aged 31 years of age when the offence occurred. The applicant impressed as having matured since the offending behaviour.

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

65. The difference in age between the applicant and the victim is not known.

66. The applicant knew the victim was an adult and there is no evidence to suggest she had any vulnerabilities.

67. The evidence does not indicate that any children were present when the offence occurred.

65. The Act requires protection of children.

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

69. The difference in age between the applicant and the victim is not known. Both the victim and the applicant were adults and did not have an existing relationship referred to in the material tendered in evidence. It is inferred that they were not know to each other at the time of the offence.

Whether the person knew, or could reasonably have known, that the victim was a child

70. The applicant knew that the victim was not a child.

The person’s present age

71. The applicant is aged 37 years at the time of hearing.

The seriousness of the person's criminal history and the conduct of the person since the matters occurred

72. The applicant has a criminal history confined to three offences occurring over the span of 12 years. They appear to have been related to the applicant’s excessive consumption of alcohol at least in relation to 2 of those matters, and immaturity in relation to all of the matters.

73. The applicant’s conduct since the matters complained about has not attracted adverse comment or been the subject of any further investigation.

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

74. The applicant relies upon the history since the offences and his self-improvement to support his contention that there is unlikely to be any repetition of the offences or conduct.

75. The applicant has been remorseful and embarrassed by his behaviours. The applicant has a supportive relationship with his wife during their 15 year relationship. The applicant has 4 children. The applicant and his wife are engaged in volunteer activities in their local and sporting community.

76. The Tribunal is to form its own opinion about the likelihood of any repetition of conduct or risk in relation to the applicant, independent of any expert opinion.

77. An indicator of future behaviour generally is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person may prospectively behave. The applicant has provided evidence that he has successfully embarked upon a course of conduct to address acknowledged deficiencies in his behaviours.

78. An assessment of risk has two elements. The first involves the prediction of the likelihood of the occurrence of an harmful event. The second consideration is the severity of the impact of such an event would have if it occurred, so that if the consequences of the event occurring will be significant that will have a greater bearing on the assessment of whether there is an unacceptable risk: Deiter & Deiter [2011] FamCAFC 82, at [61]; Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344 esp. at [66]; Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395.

79. In Johnson v Page [2007] Fam CA 1235; (2007) FLC ¶93-344 the Full Court of the Family Court referred with approval to an analysis which helps to explain the High Court decision in M v M;

68. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:

1 The decisive issue is and always remains the best interests of that child.

All other issues are subservient.

2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.

3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.

4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.

5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.

6 The onus of proof in reaching that conclusion is the ordinary civil standard.

7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

and thereafter expanded some points contained in the summary.

69. Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) …”

80. More recently the analysis of unacceptable risk and the assessment of allegations of risk has received attention at the highest level in the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction, in Isles & Nelissen [2022] FedCFamC1A 97. The Court convened a 5 member Court consisting of Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ. The reasons were delivered on 1 July 2022. The Court at [46] in its joint reasons stated that:

“Moreover, for clarity, neither Potter and Potter nor Johnson and Page should be regarded as accurately reflecting the law.”

The inaccuracy, to be seen from the balance of the reasons, is obviously in relation to point 6 in the extract of paragraph [68] in Johnson and Page. The Court also referred with approval at [55] to the approach taken in the decision CXZ v The Children’s Guardian [2020] NSWCA 338 referred to previously in these reasons. After referring at [52] to the decision of the High Court in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 (“MZAPC”) (at [38] and [39] of that decision) the Court then observed at [53]:

“The point being made, importantly for present purposes, was that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.”

81. In CXZ v The Children’s Guardian [2020] NSWCA 338 at [12]-[26] Basten JA in his dissenting judgment (in relation to the result) analyses the manner of assessing risk to children under the Act and refers to High Court decisions which support the process articulated to arrive at the answer to the ultimate question “whether a clearance will create a real and not fanciful risk to the safety of children.” In the judgment of Simpson AJA at [57]-[59] (with which McCallum JA agreed) the process is clearly articulated (see previous reference and extract).

82. If the applicant’s conduct was repeated in the future and in the presence of children the impact upon children would be significant. The behaviour if it occurred in the future to a child would be likely to have an adverse effect upon a child.

Any order of a court or tribunal that is in force in relation to the person

83. There was no current order of a Court or Tribunal brought to the attention of the Tribunal.

Any information given by the applicant in, or in relation to, the application

84. The applicant has provided information prior to and during the course of the hearing.

85. It was not submitted that the applicant had failed to provide any relevant information. The applicant was cross-examined and is considered to have been truthful and honest in his evidence.

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

86. There is no relevant information provided in this category.

Any other matters that the Children’s Guardian considers necessary

87. The Children’s Guardian made submissions addressing those matters which the Children’s Guardian considers necessary.

88. The Children’s Guardian submitted that in the circumstances the applicant does not pose a risk to the safety of children. It was also submitted that the applicant discharged the onus on the applicant to demonstrate that he is not a real and appreciable risk to the safety of children. The factors relied upon are the isolated nature of the disqualifying offence, the time since the offence which has been incident free, and the fact that it is at the lower end of the scale of seriousness.

89. The Tribunal finds that the submissions have significant weight.

Consideration

90. The Act is designed to be protective of children and there are a number of matters which may be relevant to an assessment of risk.

91. The behaviour was beyond reasonable community norms, the behaviour was not part of a pattern, and the behaviour, if repeated, would do significant harm. There are mitigating factors such as evidence of significant and sustained positive progress since the behaviour occurred, there is recent evidence that there has been a genuine and sustained effort to successfully address the offending behaviour.

92. Remorse is considered to be a factor that mitigates risk in this matter. The applicant has shown remorse for his clearly inappropriate behaviour. The applicant accepts that his behaviour was unlawful and unacceptable.

93. The applicant stated that he does not presently require a WWCC for his job as an electrician but will be likely to need one for work he may undertake in the future. The applicant also wishes to coach local sporting team(s) and volunteer in the community.

94. Having regard to all of the matters referred to previously in these reasons it is the Tribunal’s determination that there is not an unacceptable risk of harm posed by the applicant. That unacceptable risk of harm can exist independently of a finding on the balance of probabilities that particular events have occurred: BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33]; Children’s Guardian v CFW [2016] NSWSC 1406; NU v NSW Secretary of Family and Community Services [2017] NSWCA 221.

95. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk must give primacy to protective factors whilst balancing all of the risks which may be posed to children.

96. The Tribunal recognises that the provisions of section 30 (1A) of the Act apply to this application.

97. The Tribunal is required to consider subsection 30(1A) of the Act since the Tribunal considers that the applicant does not pose a risk to children. The finding of the Tribunal is that the applicant does not pose a risk to the safety of children. Therefore, this provision now applies to this matter.

98. The Tribunal considers that a reasonable person with full knowledge of the applicant’s criminal history would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work.

99. Additionally, the safety welfare and well-being of children and the need to protect them from child abuse assumes significant importance, if not determinative. The applicant can pursue a living without obtaining a clearance. However, the absence of a clearance will impact on the range of work the applicant can undertake and limit his involvement in volunteer pro-social organisations. The public interest test requires a balancing of those competing interests. It is considered in the public interest for the applicant to be granted a clearance so that he can use his professional skills and experience, as well as his prosocial intentions and interest in community and sporting activities to benefit his community. There is no evidence that it would be against the public interest to grant the applicant an enabling order.

Conclusion

100. There is a presumption in proceedings under section 28 of the Act that the applicant poses a risk to children since the applicant is a disqualified person seeking an enabling order: section 28(7) of the Act.

101. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.

102. As referred to previously in these reasons it is the Tribunal’s determination that there is no unacceptable risk of harm posed by the applicant. The evidence received by the Tribunal establishes that the Tribunal can be satisfied for the reasons expressed that the applicant does not currently pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

103. It is concluded on the balance of probabilities that having regard to the circumstances surrounding the conduct by the applicant that the existence of a real and appreciable risk to children has been disproven: see BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33].

104. The applicant’s conduct since the disqualifying offence, the steps he has taken to address his alcohol consumption and to lead a healthy lifestyle, the stable relationship in which he obtains significant support, and the prosocial intent of both the applicant and his partner makes it unlikely that the applicant would repeat the disqualifying behaviours. In all the circumstances, taking into account all the considerations required under section 30 (1) of the Act, referred to in detail previously in these reasons, the decision of the Tribunal is that the applicant does not pose a risk to the safety of children and should have a Working with Children Check clearance.

Orders

105. The orders of the Tribunal are that:

1. Order pursuant to section 28(1) of the Child Protection (Working with Children) Act 2012 declaring that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act in respect of the offence of Sexual Assaults contrary to Schedule 1, cl 352(1)(a) of the Criminal Code Act 1899 (Queensland).

2. The application for an enabling order is granted.

3. Order pursuant to section 28(6) of the Child Protection (Working with Children) Act that the Children’s Guardian is to grant the applicant a working with children check clearance.

4. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

5. It is noted that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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

Registrar

Decision last updated: 14 December 2023