FZY v Children's Guardian

[2024] NSWCATAD 331

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FZY v Children’s Guardian [2024] NSWCATAD 331

Hearing dates:

1 July 2024

Date of orders:

07 November 2024

Decision date:

07 November 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
E Hayes, General Member

Decision:

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

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

Catchwords:

ADMINISTRATIVE LAW – Child protection – Working with children – Enabling order - Whether applicant poses a risk to the safety of children – Where applicant must displace presumption after being found guilty of a sexual offence against a child – 42 years since the date of offending

Legislation Cited:

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

Criminal Code Act Compilation Act 1913 (WA)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

BKE v Office of the Children’s Guardian [2015] NSWSC 523
CXZ v Children’s Guardian [2020] NSWCA 338
CYY v Children’s Guardian (No 2) [2017] NSW NSWCATAD 262
Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255
Office of the Children’s Guardian v EQE (2002) NSWSC 871
VQB v The Secretary of the Department of Justice (Review and Regulation) (2013) VCAT 789
ZZ v Secretary, Department of Justice [2013] VSC 267

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FZY (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2023/00333342

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in the proceedings is prohibited.

REASONS FOR DECISION

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

2. The applicant, who is referred to as FZY, is declared a “disqualified person” under the Act. A disqualified person is prohibited from being granted a working with children check clearance (“WWCCC”), unless otherwise ordered by this Tribunal. FZY is a disqualified person because, on 10 November 1981 he was convicted of two counts of Indecent Dealing Child under the age of 13 years (“ the disqualifying offence”) contrary to s 189 (now repealed) of the Criminal Code Act Compilation Act 1913 (WA) (“the WA Code”). He is presumed under the Act to be a risk to the safety of children.

3. FZY requires a WWCCC to enable him to care for his two grandchildren who are in out of home care, having been removed from the care of FZY’s daughter.

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

Non-publication order

5. The Tribunal made an order prohibiting the disclosure of the name of the applicant, his victims and of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”). We note that, for the purposes of s 64 of the NCAT Act, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person (NCAT Act, s 64(4)).

Background

6. FZY is a 68 year old man. He had his first child with his then and now deceased partner when he was 18 years of age.

7. In the late 1970’s FZY moved to Freemantle and commenced a relationship with a woman who had two children. One of these children is Child A (“A”) referred to below in relation to the disqualifying offence.

8. FZY returned to NSW and commenced a relationship with a woman with whom he married and had a daughter with. His ex-wife had three daughters of her own from a previous relationship. His daughter from this marriage is the mother of the two grandchildren who he and his second wife were caring for.

9. FZY remarried a second time and currently lives with his second wife of 30 years. They married when FZY was about 35 years of age. His second wife had three sons from a previous relationship. FZY has about 22 grandchildren. FZY and his second wife were, prior to September 2023, caring for their two maternal grandchildren.

10. On 25 September 2023, FZY was informed by the respondent that his application for a WWCCC, made on 27 July 2023, was refused. This was because he was a disqualified person under s 18(1) Act.

11. Upon being informed by the respondent that FZY’s WWCCC had been refused, because he was a disqualified person, the Department of Communities and Justice (“DCJ”) removed the two grandchildren from FZY and his wife’s care.

FZY is a disqualified person

12. It is not in dispute that FZY is a disqualified person under the Act. This is because he pleaded guilty and was convicted by the Perth Children’s Court on 10 November 1981 of the disqualifying offence. The Court imposed a $400 fine in respect of each charge.

13. FZY was convicted of the disqualifying offence, which if committed in New South Wales, would constitute an offence listed in Schedule 2, cl 1. It would amount to an indecent assault on a person under the age of 16 years under the then s 61E of the Crimes Act 1900 (NSW) (“Crimes Act”), or, the current offence of sexual touching of a child under the age of 10 years under s 66DA(a) of the Crimes Act. These are disqualifying offences, under cl 1(d) and (h) of Schedule 2 respectively, and FZY is a disqualified person under Schedule 2, cl 1(1)(z) of the Act.

14. Because of that conviction, s 18(1)(a) of the Act, noting that FZY was 25 years old at the time and an adult, applies. The respondent must not grant FZY a WWCCC as he is a disqualified person.

15. On 19 October 2023, FZY lodged an application with the Tribunal. He sought an order declaring that he is not to be treated as a disqualified person and is eligible to apply for WWCCC and an order that he be granted a clearance under s 28 of the Act.

Legislative Provisions

16. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a WWCCC, or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see ss 3, 28 (1) of the Act.

17. The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see s 4 of the Act.

18. As FZY is a disqualified person, by reason of s 18(1)(a) of the Act, the respondent must not grant FZY a WWCCC. Before a clearance can be granted to FZY, he requires the Tribunal to make an enabling order pursuant to s 28 of the Act, which provides:

“28 Orders relating to disqualified and ineligible persons

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

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

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

(a) the person has been refused a Working with Children Check clearance, or

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

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

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

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

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

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

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

20. In BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J (as he then was) said at [23]-[27]:

The structure of s 28 contemplates that the making of an enabling order and the granting of a clearance certificate are separate steps. However it seems that, in most cases, if NCAT makes an enabling order it proceeds to grant the person a clearance. Nevertheless, the making of an enabling order and the grant of a clearance can have different effects. For example, NCAT could, in a particular case, make an enabling order declaring that a person is not to be treated as a disqualified person in respect of an offence for, say, an unlimited period. In the same case NCAT may grant a person a clearance which by force of s 21 has an operation of five years. In those circumstances, upon the person’s application for a renewal of their clearance, the enabling order will have the effect that the applicant “is not to be treated as a disqualified person” in respect of that offence (s 28(1)). If that is their only disqualifying offence then their application will be treated by the Guardian in accordance with Division 3 of Part 3 and the disqualifying offence will operate as an “assessment requirement trigger” (Schedule 1, clause 1(b)).

Second, at various points in her submissions, Counsel for the plaintiff contended that, in considering whether to exercise the power conferred by s 28(1), NCAT was limited to only considering the relevant offence notified by the Guardian under s 20 as the basis for concluding that he was a disqualified person. This contention is inconsistent with s 30(1). An application for an enabling order is clearly “an application under this Part”. The balance of s 30(1) contemplates that conduct beyond that involved in the disqualifying offence(s) will be considered. For example s 30(1)(b) refers to “the conduct of the person since [the offences] occurred”, s 30(1)(h) refers to the seriousness of that conduct and s 30(1)(i) refers to the likelihood of a repetition by the person of that conduct.

Third, s 28 is opaque as to the test to be applied in determining whether to make an enabling order and order the Guardian to issue a clearance. Subsection 28(7) creates a presumption but it does not expressly specify the consequences of it being rebutted. Both before NCAT and in this Court the parties accepted that the standard referred to in s 28(7), namely whether the applicant poses a risk to the safety of “children”, represented a threshold which persons such as the plaintiff must meet to obtain an enabling order and a clearance certificate. They also accepted that, if it was met, then the order and clearance would be granted. This is consistent with s 18(2) of the Working With Children Act which imposes an obligation to that effect upon the Guardian following their undertaking of a risk assessment.

Further, the parties also accepted that the concept of a “risk to the safety of children” in s 28(7) invoked the following explanation given by Young CJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949 at [42] (“V”) in relation to the word “risk” as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

“What one is looking for is whether, in all of 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 children. One, however, must link the word ‘risk’ with the words that follow, namely, ‘to the safety of the children’.”

This explains the observation at the commencement of this judgment, namely that the structure of the Working with Children Act is that the assessment of persons such as the plaintiff, who seek a clearance so that they can continue to reside in their own home with an authorised carer and a particular child, is uncalibrated. There is no relevant assessment of the risk that they may pose to that child or other children who they are likely to come into contact with at that residence, or any consideration of measures that might be taken to mitigate that risk. Instead, they are subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area.

21. He went on to say at [30]-[33]:

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).

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.”

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).

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.

Relevant considerations

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

“30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

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

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

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

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

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

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.”

The Tribunal’s task

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

24. In doing so, FZY is subject to a risk assessment under Division 3 of Part 3 of the Act. The Tribunal must not grant a WWCCC to a person who is subject to a risk assessment under Division 3, unless, it is satisfied that the person does not pose a risk to the safety of children (s 18(2) of the Act). A risk to the safety of children means a real and appreciable risk to the safety of children (s 5B of the Act) and (see - CXZ v Children’s Guardian [2020] NSWCA 338 at [7], [57]).

The evidence

25. The disqualifying offence relates to an event occurring on 3 September 1982. FZY was living with his then de facto (Ms M) who had two children “A” and child B (“B”). Ms M had left the home to go shopping. A was 9 years old at the time of FZY’s offending. FZY and A provided written statements to WA Police.

26. In her statement dated 20 September 1981, A said:

"When Mum goes out, usually on a Thursday night, she goes late-night shopping, he takes me out of my bedroom and into their room. Then he makes me take off my pants and lie on the bed. [FZY] kisses me on the cheek and he puts his penis into me. (Penis into vagina) He hurts me.

Sometimes he uses his fingers down there and that hurts as well. I can't remember when the last time was but he has done it lots of times.

Sometimes he puts his penis into my bottom, he hurts me when he does that. I sometimes go to cry out because he hurts me, but he puts his hand over my mouth so I can't, When [FZY] puts his penis into me, sometimes white stuff comes out. He then runs to the basin in the bathroom and puts the white stuff down into the sink. He then makes me go to the toilet and go to bed. When he hears Mum drive into the drive, he always makes me leave the room.

The first time he put his penis into me was when we lived in [suburb], that was two years ago.

I never told Mummy about what [FZY] did. [FZY] told me not to tell, Mummy, so I didn't."

[names anonymised]

27. In his oral evidence, FZY denies that any of the offending occurred 2 years prior in the suburb as alleged by A. He also denies digital penetration. We accept his evidence on this aspect. This is because the reference to the conduct occurring 2 years earlier by A in her statement is vague, lacks specificity and the police did not pursue the allegations. FZY’s oral evidence in this hearing is also consistent with his statement made on 20 September 1981 (below).

28. FZY provided the following statement to WA Police, also on 20 September 1981:

"It was about 8’oclock or so then I called [A] into my bedroom. I did not call her loudly.

…

I knelt down in front of her and pulled down her pants. She was also wearing pyjamas and I pulled those down as well.

I picked her up and put her on the bed. I undid my pants and pulled them down around my knees and then laid on top of her.

I had an erection and started rubbing my penis against her vagina between her legs. While I was rubbing my penis between her legs I may have gone in a little bit.

I didn't put all of my penis in her, just a portion of the head of my penis would have gone into the lips of her vagina.

I continued rubbing my penis between her legs and then I ejaculated on her around the vagina and legs. I don't think I ejaculated inside her. To the best of my knowledge I didn't.

The actual act would have gone on for about five or ten minutes.

While it was going on I remember [A] telling me that it hurts. She only said that once I think.

After I had ejaculated I got off her and told her to go to the toilet and then go to bed. Thats all I said except I said to her Goodnight.

I realise that what I did was very wrong. I honestly don't know why I did it. I haven't really got any problems with my sex life with [Ms M].

Sometimes she turns off after we have had an argument, or when I come home drunk.

When I said that the head of my penis went into the lips of [A's] vagina, I was trying to get my penis inside her and thats when she said it hurt.

Thats when I stopped trying to get inside her and just continued rubbing my penis between her legs

…”

[names anonymised]

29. FZY goes on to state as follows:

Beside this the same sort of thing has happened before. It has probably happened twice before both at the house when [X] has been out.

On those two occasions I didn't try and get my penis inside her, I just rubbed it between her legs.

The first time would have been about three or four months ago.

On the first occasion I did try and rub my penis up on her backside as well.

I didn't try and penetrate her bum."

[names anonymised]

30. In cross examination FZY conceded two incidents involving A with which he was charged. First, the incident described above and a previous incident where he asked A to wash his back and then his penis. However, he said that the shower incident stopped there and did not proceed any further. He denied the allegation by A that he inserted his fingers into her vagina, which we accept. This is despite FZY conceding that there may be some parts of the incident he did not remember because of the period of time which has passed. FZY denied that he tries not to think about the incident so as to not cloud boundaries with children. The respondent in closing submissions said that FZY gave honest evidence. We agree and find accordingly. We accept his evidence.

31. We have taken into consideration that FZY was originally charged with indecent dealing and attempted carnal knowledge, to which FZY entered a plea of not guilty. The police substituted the attempted carnal knowledge with two charges of indecent dealing, to which the FZY entered a plea of guilty. The following explanation for the change is recorded in a letter of Detective Sergeant Smith dated 14 October 1981:

"Both offences were committed upon [A], 9 years, the daughter of his de facto wife, [Ms M] who has advised that she and the daughter will be returning to NSW to live.

In addition to the cost of bringing both parties to WA there is the possibility the child will be extremely reluctant to give evidence as she is very fond of the accused.

[FZY] is represented by [legal representative] who advised me on October 13 and 14, 1981, that [FZY] would enter a plea of Guilty to two charges of Indecent Dealing.

I have discussed the matter with Inspector THOMPTER, who has agreed that in the circumstances the charge of Attempted Carnal Knowledge should be withdrawn and substituted by a charge of Indecent Dealing."

[names anonymised]

32. FZY has not filed any statement in this hearing which explains his offending. We have considered the following documentation from DCJ and Dr O’Dea which refers to the disqualifying offence.

33. On 26 September 2023, FZY disclosed the following

"[FZY] had disclosed that in 1981 when he was living in Perth he was 24 years old his partner at the time had a daughter whom was 10 years old.

[FZY] had said he had "inappropriately touched her" and he was investigated by Police and received a $400 fine. [FZY] and [redacted] did not discuss the details of the assault. [FZY] and said that the family are aware of this and he has not reoffended or made any child or adult in the family "uncomfortable". [FZY] told CW that his daughter [redacted] was sexually abused at the age of 1 and he had spoken to family and friends around the incident who helped him reflect on his choices. [FZY] showed genuine remorse and had struggled to have the discussion. [FZY] kept putting his head down stating "I am regretful for what had happened".

[FZY] was forthcoming with the information and did not deny the allegation."

"On 26.09.2023 CW spoke to [FZY] about the information of the working with children check bar. [FZY] had disclosed that over 40 years ago when he was 24 years old his partner at the time had a daughter whom was 10 years old. [FZY] had said he had inappropriately touched her and he was investigated by Police and recieved a $400 fine. CW asked what [FZY] thought helped him reflect and learn. [FZY] said "lots of different things really, seeing other people's perspectives for one, looking at the different side of the curtain, what happens on the other side, take yourself out of your shoes, put yourself in someone else's shoes". "More observance of how other people reacted, my family were close, grew up tough or didn't grow up at all, necessity dictated that, had to fend for self. As you navigate the whole situation you come across other people like [redacted] here who grow up in a large family, kindness of her brothers, showing me that things work differently, and can work differently.". CW asked about rules around the house in terms of nudity/showering. [FZY] said "Oh there is none of that, kids have their privacy, I don't enter their bedrooms without asking, as far as nudity, the kids know that's not allowed, they go from their bathroom to bedroom". [FZY] told CW that his reflection and gaining others experiences helped him learn and understand what he had done. [FZY] has not had any further allegations."

34. During the same interview, the Applicant's partner is recorded to have told DCJ:

"[Redacted] said he had told her about the event when they had started dating before they had gotten married. [redacted] said "I was a single mother with 3 kids, he took my kids on as his own, he supported me, my children. I was that confident that I had to fly to Queensland not long before we were married when my brother passed away and [FZY] stayed at the house and looked after my three boys and that's how much confidence I had in him. Because I'm a fellow person that was molested myself. I know what the signs, he just, the person I married and I fell in love with is not the person he was 40 odd years ago".

35. A reference in the DCJ assessment notes includes FZY providing no explanation for his conduct and a discussion about whether FZY had groomed his partner and her children. We place little weight on the reference to grooming because it is mere speculation.

36. In preparing this matter for hearing, the respondent obtained a report from Dr Jeremy F O’Dea, forensic psychiatrist dated 2 April 2024. This report was obtained by consent. The report refers to the following matters raised by FZY about the disqualifying offence during the assessment process at [39] – [42]:

"[39] [FZY] told me that in 1981, he had been living in Perth with his then partner, and her two daughters, and that these offences, " ... it was definitely the wrongest [sic] move I've ever made I think ... I don't know to this day what possessed me to go there... but the fact is that I did go there ...! had nowhere to go and I owned it ... I'm pretty sure that I wasn't drinking at the time of the offences ... [there were] two separate evenings ... which led to the two separated charges... one daughter was 9 [years old] ... the other ... she would have been 6 ... maybe 7 [years of age] ...”

[40] He told me that the general relationship with his partner, " ... was good at the time ..., but that their sexual relationship at the time was,... can I say average... everybody's working... and stuff... so [sexual activity with his partner] occurs when you have the time". He told me that at the time of these offences, as well as his full time midweek employment, in foundry he had been working on weekends as well, travelling to regional areas, erecting new dwellings for farmers.

[41] He told me that he had considered that he had got on well with the two female children, and that he had had a close relationship with the eldest female child. However, he denied awareness of a sexual attraction to either child, adding, " ... I still don't get it to this day ... but I do use that experience as a reminder ...”.

[42] He told me that after these index sex offences, his partner and her children returned to New South Wales, and he remained at the residence, and that," ...at the time I saw a gentleman from East Perth, a psychiatrist ... I saw him on 4 occasions ... on the 4th occasion I said I was leaving ... and he referred me to a colleague ... I saw him around Newtown ... I went there 3 or 4 times as well ... they pushed me towards [the view that the index sex offences] was basically a tool for masturbation... they thought the reason I was doing that was to help with the masturbation process.... that was basically their reasoning ... I thought it was pretty accurate … .”

[names anonymised]

Other relevant evidence

7 October 1989 – ADVO

37. On 7 October 1989, FCZ was charged with breaching an Apprehended Domestic Violence Order (“ADVO”) and assault. On 13 December 1989, he was convicted of the ADVO breach and fined $50. The charge of assault was found to be proved but was dismissed pursuant to then s 556A of the Crimes Act 1900.

38. In his oral evidence in chief, FZY referred to an incident with his first wife (“Ms A”) and her daughter child “Z” on or about 15 January 1988. The incident records an allegation that FZY attended the residential premises of Ms A and Z. He is alleged to have called at the home and harassed Ms A. She reported to the visiting officer that she received a black eye having been assaulted by FZY 8 days earlier. She was advised to report the incident to a chamber magistrate.

39. FZY denies what is recorded. He said he was asked by Ms A to supply medication for his daughter. He alleged he told Ms A that “was stupid question to ask” because there was an AVO in place between them. FZY said that Ms A told him to “just put it in the letterbox” referring to the medication. FZY said he placed the medication in the letterbox and Ms A came outside of the house and said words to the effect: “You have not got the decency to give it to me”. FZY replied “you know I am not meant to be here because of the AVO”. Ms A slapped FZY’s face. He said he pushed her away. She took three steps backwards and fell to the ground. FZY said at the time she already had a black eye. He did not assault her causing that injury, but rather, he believed it was perpetrated by her then boyfriend some days earlier. FZY said they were both charged with assault. He was given a s 556A (charge found but no conviction recorded, which provision has since been repealed).

40. FZY gave a very similar version of events to Dr O’Dea [43]-[45]. A DCJ report records FZY’s ex-wife also being charged with assault. We accept his unchallenged evidence in this regard. We attribute limited weight with respect to this incident. This is because we accept FZY’s evidence that the incident appears to have been instigated by FZY’s wife. Despite the DCJ case note, we prefer FZY’s evidence and find him to be a reliable witness. We have also considered that the Court dismissed the assault charge under the then s556A provision of the Crimes Act.

3 July 1995 – assault charge

41. On 3 July 1995, FZY was charged with common assault, which charge was dismissed on 29 September 1995. The incident was between FZY and his then 20 year old son. The COPS Event provided by NSW Police records the following:

"About 9.30pm 2.7.95 Victim I and [FZY] were at Location 1. Both had been consuming alcohol and then began to wrestle in the loungeroom.

Victim 1 then became upset about the way that his father [FZY] was getting serious. Not wishing to strike to punch his father, Victim 1 then punched the front door in frustration. [FZY] then grabbed Victim I- and dragged him back into the middle of the lounge room where the [FZY] then struck Victim approximately 10 times to the face with his right closed fist. This caused Victim to loose consciousness for a short time and also caused Victim 1 to sustain a bleeding nose, cuts and swelling to his lips and swelling to the face. [FZY] then grabbed Victim 1 by the scruff of his shirt. and dragged him out the front door down the front steps and onto the front lawn. [FZY] then went back inside the premises. Victim then crawled to a neighbours home and waited for the ambulance and Police to arrive. [FZY] was later spoken to by Police and refused to say anything about the matter. He was arrested and conveyed to Port Kembla station and charged with Assault."

[names anonymised]

42. Dr O'Dea reports FZY’s account as follows:

"[FZY] told me that he pleaded, and was found, Not Guilty of this charge, but acknowledged that he had been in a physical altercation with his son at the time, but that, " ... no ... I don't recall drinking [to excess at the time of the alleged offence] ... we may have had 2 beers I think... they [his son] come over and visited ... it was a little bit of fun ... and once we got towards the front door ... [with] him on top of me ... [l thought] hallo do you really want to go there ... no ... it takes a lot to get me really fired up ...

I'm a pretty placid person ... I got as good as I gave ...”

43. We accept that FZY was involved in an altercation with his adult son. We place limited weight on this incident. This is because FZY was found not guilty of a charge of common assault, which is not in dispute. FZY and his adult son appeared to have become embroiled in some playful wrestling which began as harmless and then progressed to a physical altercation, which does not appear to be a situation where either one can be blamed for instigating the incident, over the other.

DCJ records 31 October 1990

44. A record included in the documents records FZY making reference to an allegation with his ex-wife that their daughter made an allegation of being sexually touched by her step brothers. FZY said he believes the allegation had been found to be untrue and was a malicious allegation made by his ex-wife against the stepson. We are not able to make any finding either way with respect to this allegation. However, we accept FZY’s evidence that his ex-wife was worried about the allegation and he said in today’s terms what he previously described as “inappropriate touching” 42 years ago would now be seen as a “sexual assault”. We place little weight on this matter concerning whether FZY has or had a caviller attitude to sexual assault. In our view his response, that today the term inappropriate touching would be seen as a sexual assault, indicates the contrary.

The hearing

45. Each party relied upon bundles of evidence. FZY’s evidence was marked A and B. The respondents bundles were mark 1 - 4 inclusive. Paragraph 38 of the respondents written submissions was not read and struck out.

46. FZY had received the respondents documents before the hearing. However, after we explained to FZY what he needed to demonstrate in his application, we decided to give FZY some time to further prepare his case. FZY took one hour to read the respondents submissions and evidence. Following the adjournment, FZY gave oral evidence and he was cross examined.

FZY’s documentary evidence

47. FZY relied upon a short statement and four statements from his children and friends.

48. FZY’s step son gave a statement. He has known FZY since he was 13 years of age. He has 9 children who call FZY and his second wife ‘nan’ and ‘pop’. He said his children have stayed with FZY on many occasions and he has never had any concern or problems. His step son’s ex-wife and his current wife are also of the same opinion. The statement gives a glowing reference for FZY. It evidences that over many years, there has been no adverse report of inappropriate or unsafe behaviour by FZY towards his stepson’s children. However, we have tempered it’s weight due to the absence of any specific reference to the disqualifying offence.

49. The second is a reference from FZY’s daughters ex-boyfriend’ sister and is dated 6 May 2024. The referee describes FZY as a “thoughtful and honest man” who has been welcomed into her family. She describes FZY as a “wonderful role model” for his two grandchildren and a person who is an “… honest, kind and caring grandfather… ” Unfortunately, the reference does not refer to the disqualifying offence and the weight we attach in limited in that regard.

47. A second step son provided a handwritten statement signed and dated 8 May 2024. He has known FZY since 1989 when he was 9 years old. He describes FZY as a “loving, caring, committed and most of all the best dad.” After the step son’s marriage broke down, he and his 5 children moved into FZY and his current wife’s home for 5 years, where they looked after him and his children. He states that FZY has never “… done anything untoward myself [sic] or my children as it is not in his character & I feel dad is just a victim of time passed…” He describes FZY’s conduct towards all of his children and grandchildren as having “good intentions”. We place more weight on this reference as it in some way acknowledges the disqualifying offences, albeit not in specific detail.

48. One further step son of 30 years provided a similar reference by email dated 8 May 2024. He states that he never hesitates to leave his children with FZY. However, no reference is made to the disqualifying offence. We attach due weight in this circumstance.

Expert report of Dr Jeremy O’Dea

52. FZY told Dr O’Dea that apart from the disqualifying offence he has not engaged in any paedophilic activity. He said he has no paedophilic urges or fantasies. During the assessment, as in this hearing, FZY demonstrated remorse and contrition regarding the disqualifying offence and his behaviour.

53. Dr O’Dea did not diagnose FZY with a major psychiatric illness. He noted that he used alcohol through the period of his life when he committed the sexual offences against his 9 year old step daughter. He does not meet the psychiatric diagnostic criteria for a Paedophilic Disorder on the basis of the disqualifying offence alone. Dr O’Dea said:

74. That being said, and whilst [FZY] told me that he was not aware as to why he had committed the index sex offences; it is generally accepted in psychiatry that adult heterosexual males with a history of adult sexual relationships and no identified specific or significant sexual attraction to female children; can and do have the potential to be sexually aroused by female children, particularly female children, with who they have a close and caring relationship and opportunity, such as their female stepdaughters; and can and do engage in sexual activity with such female children with no clear recognition of sexual urges towards female children, and potentially no strong and specific pedophilic urges or fantasies.

75. Whilst the prediction of risk in general, and of the risk of an adult male engaging in future sex offending behaviours in particular, remains a difficult and controversial endeavour in the psychiatric profession; on the basis of a full clinical psychiatric risk assessment and risk management perspective, and on the basis of actuarial risk assessment tools, such as the Static 992; individuals with [FZY’s] demographic profile and sex offending and general offending history would be considered to fall in the group of individuals with a relatively low risk of further sex offending.

76. Whilst this group of individuals falls into such a low risk group, this may be related, at least in part, to their lack of subsequent access to close and caring relationships with female children.

77. Factors pointing to the lowering of the relative risk that [FZY] may pose to female children would include the length of time since the index offences, the absence of subsequent allegations regarding [FZY’s] conduct related to children, and the nature and extent of the paedophilic behavior.

78. That being said, at least from a risk management perspective, particularly if [FZY] were to continue to care for his granddaughters, he should continue to successfully control his alcohol intake, particularly when caring for the granddaughters, and take the opportunity to explore in further detail with a suitably qualified and experienced forensic psychiatrist or psychologist, his history of sex offending behaviours, and it's potential implications regarding his overall sexuality, in order to assist him in continuing to manage and minimise the risk of him engaging in further sex offending behaviours.

[our emphasis]

54. Dr O’Dea was not cross-examined and we accept his uncontested evidence.

55. FZY said he has reduced his drinking significantly to two drinks per day. He did not rule out the recommendation by Dr O’Dea to seek further counselling, and said: “I do not know what the process is”. He initially sought assistance from a psychiatrist, Dr Fletcher in Western Australia, for about 4 sessions. When he moved to Sydney he spoke with a psychiatrist on 4 or 5 occasions at Camperdown. He said he agreed that his offending was mainly related to assisting him in masturbating.

56. When considering risk, Dr O’Dea took into consideration the lengthy period of FZY being offence free as well as the significant period of time which has passed since the disqualifying offence. We accept Dr O’Dea and give this significant weight.

57. We find having considered both FZY’s oral evidence and the detail contained in the character references that FZY has had access to his grandchildren and other people’s children for many years with no adverse reports being made concerning his behaviour. Given this finding, and after reviewing the considerations outlined in Dr O’Dea’s evidence, we accept Dr O’Dea’s expert evidence that FZY is a relatively low risk to the safety of children.

FZY’s case

58. FZY submits that the Tribunal should take comfort that over 42 years has passed since the disqualifying offence and he has not come to the attention of the respondent or any other agency, or the police, concerning relevant misconduct. This is in the circumstances where he has cared for many of his grandchildren and other people’s children from time to time. This includes long periods of caring for his step children and their grandchildren.

59. FZY accepts the disqualifying offence was extremely serious and the other matters referred to above are less serious with respect to this application.

60. He does not use alcohol excessively. FZY has demonstrated that he is willing to consider assistance from health care professionals, albeit, he has had little professional assistance since the disqualifying offence. We accept his evidence in this regard.

61. FZY has demonstrated a good attitude with those who he associates with. He has been upfront with his history and is remorseful for his prior conduct and behaviour.

62. In some of the character references FZY is described as being a great grandparent and no person has raised any concern about FCZ being involved with children, or, caring for children. Those referees speak highly of FZY in that regard which are given due weight, as referenced above.

63. FZY has been candid and frank about his past conduct and wrongdoing. He has provided significant information in his evidence and where necessary made appropriate concessions particularly with respect to his recollection given the passage of time.

The respondent’s case

64. The primary concern of the respondent with respect to this application is that FZY has not displaced the presumption that he is a risk to the safety of children.

65. The respondent acknowledges a significant period of time has passed since the disqualifying offence and there is no evidence of any further offending. Even at face value, the respondent contends that police engagement since the 1980’s would have limited weight relating to the safety of children.

66. In respect of Dr O’Dea finding that FZY is “low risk”, the respondent contends that that is not determinative. This is because the legislation has not removed disqualifying offences after a specified time. Low risk and time, must be considered in terms of the nature of the offending. Sexual offending by a parent in a position of trust increases the seriousness of the offending, even if, there is a low risk. We have considered this submission in coming to our conclusion.

67. The respondent contends that a difficulty arises in accepting that FZY is “low risk” because his conduct is not explained. He has not really engaged with healthcare professionals and his approach has been not to think about his conduct except a memory “in the back of his head”. This presents difficulties in identifying risks and how to deal with them. For example, FZY described a sexual assault as “inappropriate touching” and he did not report it to DCJ, even after his ex-wife raising concern of risk to his daughter in 1998. We do not accept the submissions that FZY has not explained his offending. He has partly explained it by agreeing both in oral evidence and in terms of Dr O’Dea’s opinion, that his conduct assisted him with masturbation. As set out above, FZY now recognises the seriousness of such an allegation and would not characterise that behaviour in the same terms as he did some 30 years ago. He also reflects upon his behaviour with regret and remorse. FZY in discussions with DCJ’s case worker, recognises his transgressions by looking at his conduct from the view of a victim and other family members.

68. The respondent contends that FZY’s domestic circumstances have not been the same since the 1980. This combined with obtaining very limited counselling and treatment, should raise concerns as identified by Dr O’Dea when considering the protective factors and him reoffending.

69. Where there is no explanation about the context of his offending, a reasonable person would have concerns and would find a “low risk” is still a risk. Given the matters above, a reasonable parent test would result in a finding that FZY could not be trusted to have unsupervised access to children.

70. The respondent contends that a WWCCC cannot be granted on condition. This is particularly, where the applicant’s desire for a WWCCC is solely based upon him being able to apply to be an authorised carer for his granddaughters.

71. The respondent contends that it would be unlikely given FZY’s criminal history that he would be deemed suitable to be an authorised carer even if a WWCCC was granted. It is also submitted that FZY and his wife could seek an order of the Childrens Court to be granted parental responsibility on conditions, even if a WWCCC has been refused.

72. There is no evidence that it would be in the Public Interest for him to pursue other charitable or work involving children.

Consideration of the s 30 factors

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

73. We are satisfied that FZY on at least three occasions was alone with his step daughter in his bedroom. He directed her to undress and rubbed his penis between her legs and, along her backside, and on one occasion inserted the head of his penis into her vagina causing her pain. We also find that he asked her to wash his penis in the bath, but stopped before she did so.

74. We cannot fully exclude the version of events provided by FZY’s step daughter given FZY’s evidence that there may be parts of her version that he cannot rule out because of the passage of time. However, for the reasons set out above, we have accepted FZY’s evidence concerning digital penetration and where his offending occurred.

75. The conduct of FZY is serious and today his offending would attract significant penalty and a term of imprisonment.

76. The ADVO matter, common assault and incident involving his son, have been considered but they are at the very low end of seriousness in the objective circumstances.

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

77. The disqualifying offence occurred over 42 years ago. The most recent report of any relevant conduct occurred nearly 30 years ago. This is significant.

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

78. FZY was 25 years of age at the time of the disqualifying offence.

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

79. Relevantly, the victim was 9 years old and vulnerable. FZY committed the disqualifying offence in a position of trust as a parent and within the home of the victim where she should have been able to feel safe.

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

80. The victim was 16 years younger than FZY. FZY was the victim’s step parent and in a position of trust.

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

81. FZY knew the victim was a child, 9 years of age.

(g) the person’s present age,

82. FZY is now 68 years of age.

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

83. FZY’s early criminal history is serious, predominantly because of the disqualifying offence. His criminal history, apart from the minor matters involving his ex-wife and son, is relevantly, incident free.

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

84. We place significant weight on the unchallenged opinion of Dr O’Dea. We find that FZY is within a category of “relatively low risk” of further sexual offending. We reject the criticism the respondent places upon FZY’s purported “unexplained behaviour”. We draw comfort from the opinion expressed by Dr O’Dea in paragraph [74] of his opinion and FZY’s acceptance of professional counselling and his oral evidence that he “was doing that to help with the masturbation process”. It is not the case that FZY’s conduct is wholly unexplained.

85. We find that FZY has taken some of the protective steps as identified by Dr O’Dea. He has reduced his drinking. He underwent between 8 – 9 sessions with a health professional soon after his offending and said he has considered further professional help, but is unsure about the process. This weighs in his favour.

86. We accept the evidence of Dr O’Dea and find the likelihood of any repetition of FZY’s offending or similar conduct is relatively low. However, the impact on children of such repetition, which repetition we find is low, would be significant.

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

87. There is no evidence of any other order in force relating to FZY.

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

88. We have considered the character references which speak highly and in positive terms about FZY’s character and his more recent involvement with children. However, only one of the references refers to his prior offending and we have attributed less weight to those statements.

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

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

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

90. The respondent contends that FZY sought to minimise his offending with Dr O’Dea. This is in relation to FZY’s daughter’s attitude to him caring for her two children who are in the care of the minister. We do not accept this characterisation on the information he provided.

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

Our findings

92. We are satisfied that FZY has displaced the presumption that he poses a real and appreciable risk to the safety of children. We have taken into consideration that for the past 42 years since the disqualifying offence, FZY has not been the subject of any similar complaints or charges. For the last 30 years, FZY has no relevant adverse interaction with NSW Police or other authorities. FZY’s three step children provide glowing reports of his lengthy interaction with his grandchildren, speak highly of his role as a care giver and grandparent.

93. FZY does not use alcohol excessively. He demonstrates genuine remorse and regret for his prior offending. The disqualifying offence is historical, it occurred more than 42 years ago. We do not accept that FZY’s domestic circumstances are not the same as the 1980’s. To the extent that he has from time to time had the care of his grandchildren, of varying ages, they are similar. We are not concerned when considering the protective factors and FZY reoffending.

94. The evidence of Dr O’Dea is persuasive and demonstrates the unlikelihood of any repetition of his offending behaviour. This weighs in FZY’s favour.

95. In our view, FZY has rebutted the presumption that he poses a real and appreciable risk to the safety of children.

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

Consideration of the s 30(1A) factors

97. In making our finding as set out above we are required to consider the matters set out in s 30(1A) of the Act before an enabling order can be made. Section 30(1A) of the Act provides:

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

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

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

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

‘… (the test) requires the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint him or herself with all the matters that have been placed before me, giving the applicant for a positive assessment a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.’

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

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

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

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

101. We have considered that the disqualifying offence included that it was against a 9 year old child was committed when FZY was 25 years old. It occurred more than 42 years ago.

102. In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a “reasonable person” would need to know the applicant’s criminal history being his conviction for the disqualifying offence and his history from that date. The reasonable person would also take into consideration all of the material before the Tribunal including the opinion of Dr O’Dea that the applicant’s risk of recidivism are at the relatively low end of the range. We are satisfied that a reasonable person would have regard to the fact it is nearly 42 years since the disqualifying offence was committed by the applicant and that he has had a relevantly unblemished record since then. The reasonable person would have regard to his stable marriage and his bringing up many step children and being involved in the life and care of his grandchildren, without any recorded repetition of his prior conduct. The reasonable person would also take into consideration the views of FZY’s step children and their spouses concerning his access to their children.

101. Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of all of this information would allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work.

102. The Tribunal must also be satisfied of the second part of the test in s 30(1A) that the order is in the public interest.

103. The public interest test requires the Tribunal, in the context of the paramount consideration in s 4 of the Act (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant: Mielczarek v Commissioner of Police, NSW Police Force(No 2) [2016] NSWCATAP 255 and CYY v Children’s Guardian (No 2) [2017] NSW NSWCATAD 262. We have done so.

104. FZY committed serious offences against a child 42 years ago. He and his wife want to be able to be authorised carers for his two grandchildren who have been removed from the care of his daughter. FZY is not able to be considered an authorised carer without a WWCCC. It is in the Public Interest that he be able to be considered as an authorised carer for his granddaughter’s, or otherwise, and subject to the usual process to determine his suitability in that regard.

105. When balancing the public interest and the FZY’s interests, we find that FZY satisfies the public interest test as there is little evidence to suggest that it would be against the public interest to grant him a clearance.

106. In summary, we are satisfied that the applicant has rebutted the presumption that he poses a risk to the safety of children. We have also decided that a reasonable person 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, and that it is in the public interest to make an enabling order.

ORDER

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

2. FZY is to be granted a Working With Children Check Clearance forthwith.

**********

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

Amendments

11 November 2024 - Paragraph 15 "not" added in 2nd sentence. 'He sought an order declaring that he is not to be treated as a disqualified person and is eligible to apply for WWCCC and an order that he be granted a clearance under s 28 of the Act.

Decision last updated: 11 November 2024