GBY v Children's Guardian

[2024] NSWCATAD 160

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

GBY v Children’s Guardian [2024] NSWCATAD 160

Hearing dates:

23 May 2024

Date of orders:

14 June 2024

Decision date:

14 June 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Bailey, Senior Member
Kerry Stubbs, General Member

Decision:

(1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

(2) The applicant is not to be treated as a disqualified person for the offence, in respect of section 35(3) of the Police Offences Act 1935 (TAS), for which he was convicted on 15 September 2023.

(3)   The application for an enabling order is granted.

(4) Pursuant to s28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a Working with Children Check Clearance.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – disqualifying offences – enabling order – circumstances of offence – conduct of applicant in period since offences occurred– discharge of onus – circumstances of offence – no prior offending conduct -

Legislation Cited:

Child Protection (Prohibited Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Family Violence Act Tasmania 2004

Police Offences Act 1935 (TAS)

Cases Cited:

BKE v Children’s Guardian [2015] NSWSC 523

CHB v Children’s Guardian [2016] NSWCATAD 214

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

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

CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GBY (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
A Britt (Applicant)
A Dhen (Respondent)

Solicitors:
Marsdens Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2023/00364041

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Summary

1. The applicant in these proceedings is referred to as "GBY". GBY is a pseudonym used in these proceedings in conformity with the non-disclosure order.

2. On 16 November 2023, the applicant applied for an enabling order, pursuant to s28(1) of the Child Protection (Working with Children) Act 2012 (The Act).

3. On 15 September 2023, the Magistrate’s Court of Tasmania convicted the applicant of common assault and assault with indecent intent. The applicant is presumed to be a risk to children because of his conviction for this offence. He now seeks a finding by the Tribunal that he does not pose a risk to children.

4. Based on our consideration of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Act, we find that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons. The application for an enabling order is granted.

Background

5. The applicant applied for a Working with Children Check Clearance (WWCC Clearance) on 31January 2023. Subsequently, the respondent became aware of the applicant’s criminal history.

6. This history includes a ‘disqualifying offence’ under the Act. Therefore, his application was refused in accordance with s 18(1)(a).

7. The disqualifying criminal matter was a charge of assault with indecent intent, following an incident involving the applicant’s former partner on 28 October 2022 to which the applicant plead not guilty.

8. On 15 September 2023, the Magistrate’s Court of Tasmania convicted the applicant of common assault and assault with indecent intent. The latter offence is commensurate with those listed in Schedule 2 of the Act and equates to a disqualifying offence (the disqualifying offence).

9. The applicant was fined $1,300.00 and ordered to pay $74.76 in costs in addition to a levy of $40.00. The offence was recorded as a family violence offence under Section 13A of the Family Violence Act Tasmania 2004.

10. Consequently, on 24 March 2023, the respondent issued the applicant with a Notice to Disqualified Person, pursuant to s 18 of the Act, which refused his application for a WWCC Clearance.

11. The applicant now seeks an order enabling him to work with children. The applicant seeks the enabling order, so that he may work as a bus driver, in which capacity he is likely to encounter children and young people.

12. The application was filed out of time. However, by way of orders made on 23 November 2023, the Tribunal extended time for filing to 16 November 2023.

13. The Tribunal must now decide whether the applicant should be granted an enabling order under s 28 of the Act. To do so, the Tribunal is required to consider section 30(1) and (1A) and determine whether he has rebutted the presumption that he poses a risk to the safety and well-being of children.

Legislative context

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

15. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act (section 4).

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

17. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1) (b) of the Act). A child related role is set out in s 6(3) of the Act. It is not disputed that the role that the applicant proposes to perform is child related work.

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

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

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

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

19. It is the Tribunal that must assess risk, if an application for an enabling order is made to the Tribunal.

Jurisdiction

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

21. The jurisdiction of the Tribunal under Part 4 of the Act is protective, not punitive, in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61].

22. Section 3 of the Act provides that 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.

Section 4 provides that the safety, welfare and well-being of children, in particular protecting them from child abuse, is the paramount consideration in the operation of this Act.

23. Part 4 of the Act deals with reviews and appeals. Section 28 provides for the making of an enabling order by the Tribunal of disqualified persons. Relevantly, the section provides:

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

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

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

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

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

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

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

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

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

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

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

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

Burden of Proof

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

27. The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949, in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998.

28. At [42], His Honour said:

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

The Hearing

29. The hearing was conducted in person, on 23 May 2024.

30. The applicant attended in person, and was represented by Mr Britt, of counsel, instructed by Mr Costlow. The respondent was represented by the Crown solicitor, who instructed Ms Dheng, of counsel.

Written evidence

31. A folder handed up by the applicant’s Counsel is titled “Court Book”. For that reason, we will adopt that title in these Reasons for Decision when referring to that bundle of documents.

32. The applicant tendered the following evidence:

1. Affidavit of GBY, dated 14 February 2024, with attachments;

2. Character reference from Kurt Wasyluk, dated 13 February 2024;

3. Character reference from Benjamin Wasyluk, dated 13 February 2024;

4. Character reference from Cory Wasyluk, dated 13 February 2024;

5. Character reference from Terry-Lee Ross, dated 17 February 2024;

6. Character reference from Leanne Pitt, dated 21 February 2024.

33. The documents referred to above were collectively marked Exhibit 1. They can be found at pages 30 to 48 inclusive of the Court Book.

34. The applicant also provided written submissions.

35. The respondent tendered the following evidence:

1. Documents contained in the respondent’s bundle of evidence and the respondent’s further bundle of evidence;

36. The respondent’s bundle of evidence can be found at pages 49 to 181 of the Court Book. They were marked Exhibit A collectively.

Applicant’s submissions

37. The applicant conceded that there is a presumption that he poses a risk to children, because he is a disqualified person who now seeks an enabling order pursuant to s 28 of the Act.

38. The applicant provided a written outline of submissions on 17 April 2024. Mr Britt of Counsel also made oral submissions.

39. The applicant’s evidence was also contained in a Record of Interview, dated 29 October 2022; a Statutory Declaration, also dated 29 October 2022; and an affidavit dated 14 February 2024. He also gave oral evidence.

40. What follows is our summary of the applicant’s evidence, compiled from each of these sources. We note that there were some inconsistencies in his evidence over time. It was not submitted that this affects the reliability of his evidence. We find that the inconsistencies are not material to the issues for us to decide.

41. Record of Interview 29 October 2022

42. In his initial interview with police, as set out in the record of interview, the applicant said that he did not know had occurred that evening, other than “I thought I was being attacked and defending myself”. He said he had formed this view because “I’ve got a….bruised forehead…and I didn’t do that to myself so I was just trying to defend myself and I remember hitting (the victim)” (page 3).

43. He said his memory was impaired, because of the alcohol that he had consumed. He estimated this was a ‘six pack’ of beer and most of a bottle of wine. He said that the victim was also intoxicated, because she had consumed a glass of wine at dinner and had also been “drinking scotch whisky”.

44. The applicant did not recall trying to touch the victim’s breasts but conceded that he may have, because he still had feelings for her.

45. The record of interview shows that the police told the applicant that that the victim had confirmed that she had told the applicant that his sons would be “better off without” him, which caused him “to snap” and punch her in the right cheek. The applicant did not recall this at the time.

46. The victim also told police that she tried to “knee him in the groin” to stop the applicant from touching her breast. The victim alleged that the applicant punched her once again, which caused her to fall to the floor. The applicant conceded that he recalled hitting the victim, although he maintained that the details were “very vague”.

47. The applicant conceded that he had “a drinking problem”. He said that he usually drank six to eight beers, once or twice, each weekend. He denied any previous assault. However, he said that the victim had assaulted him.

48. Statutory Declaration 29 October 2022

49. The applicant deposed that he owned a property with his former partner, the victim of the disqualifying offence, with whom he had been in a relationship for approximately three years.

50. He reiterated his evidence to the police that he was “quite intoxicated” at the time of the disqualifying offence. His memory was “a bit of a blur”, but he recalled that he had contacted one of his sons at 9:07 pm on the night of the disqualifying offence, because he was “quite upset and shaken”.

51. His son contacted him at 9:35 am on the morning he deposed his statutory declaration. The applicant said that his son reminded him that he had confided certain details to him the previous night. He said that this reminded him that his former partner had “jabbed me and then upper cut me, so I hit her back”.

52. He also deposed that his former partner had hit him in the head twice previously. He wrote that he now recalled that his former partner had hit him first on the night of the disqualifying offence. He said he would never hit a woman, unless it were in self-defence. He described himself as “a very timid person” who hates confrontation. He requested that his former partner be charged with assault for hitting him first.

53. Affidavit 14 February 2024

54. In his Affidavit, dated 14 February 2024, the applicant wrote that he had worked at Sydney Trains since approximately 2009. (In his evidence in chief, he confirmed that this was an error and that the date should read 2001).

55. It was while thus employed that he met the victim. His evidence suggests that there was a hiatus in their acquaintance until he met her again in approximately August 2018. They commenced a relationship after his marriage of 25 years had broken down. He proposed to the victim in approximately July 2020 and moved to Tasmania with her in May 2021.

56. He deposed that he had been subjected to emotional and physical abuse from the victim and that, consequently, his relationships with his children and family began to deteriorate. He described the victim objecting to his having contact with his sons. He alleged that, on one occasion, the victim punched him in the side of the head. He called a friend but did not contact the Police, because he was ashamed and wanted his relationship with the victim to succeed.

57. Ultimately, he decided to separate from the victim in August 2022 “following an increase in her emotionally manipulative and violent behaviour” (paragraph 17).

58. He stated that the victim often taunted him and instigated arguments. He swore “I felt as if I was walking on eggshells and I felt like I was mere shadow of my former self” (paragraph 18). Despite this, he maintained contact with the victim.

59. He wrote that he witnessed her aggressive behaviour when she had consumed alcohol. Examples of these were described at paragraph 20 of his Affidavit and included the victim telling him that: “My kids were better off without me” and belittling his Christian faith. He described the victim attempting to and succeeding in embarrassing him in public. He added that the victim had advised him that in previous relationships she had “always have a final fling…to say goodbye”.

60. The applicant’s description of the disqualifying offence is set out from paragraphs 21 to 37 of his Affidavit. It is a more detailed account than those he provided previously.

61. In summary, he said that he intended to deliver the victim’s belongings to her new house and then drive to the house in which he was living. The victim encouraged him to stay the night at her home. They had dinner together and shared a bottle of wine. He also drank a six pack of beer.

62. Following dinner, the victim went into her bedroom. The applicant followed her with the intention of speaking to her. She gave him permission to enter. He noticed that she was drinking a glass of scotch in bed. The victim got out of bed, approached the applicant and met him just inside the bedroom door.

63. The applicant admitted to maintaining romantic feelings for the victim at that time. He admitted that he attempted to touch her breasts, because he was intoxicated, and he was still attracted to the victim. He said that the victim’s previous comments about “last flings”, in the context of her invitation to stay, caused him to wrongly assume that his actions were consensual. He expressed deep regret.

64. In response to his actions, the victim punched him in the head twice. He submitted photographs of the injuries he sustained. This, he said, caused him to act in self-defence and strike the victim in the face. The applicant wrote that he regrets both of these actions and that they were out of character for him.

65. The applicant pleaded not guilty at the Launceston Magistrate’s Court, because he believed he had acted in self-defence. Nevertheless, he was found guilty and given a criminal record and fined $1,300.00.

66. He is now separated from the victim and lives in New South Wales. He has heard that the victim has also returned to New South Wales and is working as a train driver. He said this causes “high levels of anxiety” because he does not want to see her.

67. Evidence at the hearing

68. The applicant also gave oral testimony. He said that he now has a vivid recollection of ‘exactly what happened’. He recalled having hit the victim in the face twice and once in the ribs. He explained that he has better recollection now, because, at the time of the Police interview, “I was barely myself”. He said he was still intoxicated when he gave that interview.

37. He also gave evidence that the conversation he had with his son, on the following morning, assisted him to recall what had occurred.

38. He said that the victim had been aggressive, verbally and physically abusive to him on occasion. He said: “It was a dark time for both of us. She hit me again and I snapped. I’m sorry. It’s wrong. It’s out of character for me. I hate violence”. He agreed with Counsel for the respondent that his actions were excessive and aggressive and said that these actions were uncharacteristic.

39. Applicant’s evidence about seeking professional intervention

40. He said he has developed strategies to manage anger and frustration. He has learnt not to be reactive. The applicant also gave evidence that he has limited his alcohol intake considerably. He still enjoys drinking alcohol, every second weekend, over which period he consumes approximately one ‘six pack’ of beer. He does not drink during the week, because he is working.

41. The applicant gave evidence that, to develop such strategies, he has sought intervention from Ivan Bakich, Clinical Psychologist, who prepared a report for the Presiding Magistrate in the criminal proceedings. The applicant gave evidence that he consulted Mr Bakich prior to the disqualifying offence, whilst he was working at a railway in approximately 2010, because of his alcohol use at the time.

42. Mr Bakich wrote that when the applicant consulted him, he had depressive and anxiety symptoms in the extremely severe range. He wrote that according to the results of clinical diagnostic interviews, the applicant met the criteria for:

43. Major depressive disorder – moderate, recurrent, with psychotic features;

44. Generalised anxiety disorder;

45. PTSD;

46. Alcohol use disorder,

47. Adult ADHD (provisional diagnosis) and autism spectrum disorder (provisional diagnosis).

48. He also reported that the applicant had received cognitive behaviour therapy for anxiety and alcohol use, and cognitive therapy for depression, and grief counselling. He recommended further assessment to exclude adult ADHD and autism spectrum disorder.

49. Mr Bakich wrote that he believed that the applicant’s previously untreated symptoms of the diagnosis contributed significantly to his behaviour on the night of the disqualifying offence.

50. The applicant also consulted Victoria Headlam, Social Worker from the Crawley Clinic in Launceston, on several occasions. The notes from these sessions form part of Exhibit A (at pages 137 to 144 of the Court Book).

51. These records reveal that the initial consultation took place on 29 September 2022, prior to the disqualifying offence. On that date, the applicant presented with anger issues and relationship stress. He reported that he had experienced this stress since moving with his partner to Tasmania and that his partner (the victim) criticised him and started arguments and that he “had enough”. He revealed that he had decided to terminate the relationship. He had had previous psychological intervention to deal with binge drinking. The risk of harm to self and or to others, including children, was deemed to be low. The applicant was found to be insightful and motivated to change.

52. On 12 October 2022, also prior to the disqualifying offence, the applicant told his Psychologist that he had decided to separate and put the house of the market. He described his concerns about “bottling up emotions then exploding”. He was counselled on how to create “emotional distance between himself and the behaviours of others”. He was assessed to present no risk to children or to himself.

53. On 26 October 2022, he was also assessed to present no risk to children or himself.

54. On 23 November 2022, the applicant disclosed to the Psychologist the fact that he had been arrested for assault following an argument with the victim. He received therapy to take responsibility for his behaviour, grounding strategies and ways to “self-soothe”. He was assessed to present no risk to himself and low risk of harm to children. The Psychologist did not reveal why any risk to children was assessed.

55. Counsel’s submissions

56. Counsel for the applicant asked the Tribunal to consider with approval, the fact that the applicant did not try to hide the details of his offence, and that he immediately expressed remorse and regret for his actions.

57. Additionally, he asked the Tribunal to consider that the applicant’s offence took place in the context of a “toxic relationship” and that he believed that he was acting in self-defence. He also submitted that the applicant’s actions on that night were out of character, and that the penalty imposed by the Tasmanian Magistrate’s Court illustrates that the applicant’s conduct was “at the lower end of offending behaviour”.

58. Furthermore, he asked the Tribunal to accept that the applicant now successfully limits his alcohol intake. He added that, even when the applicant had a drinking problem, there is no evidence that he ever did anything to harm children or young people. His violent behaviour did not impact a child or young person. He asked the Tribunal to accept Section 30(1)(i) that the likelihood of any repetition of the behaviour was low, because it had only occurred on one occasion.

59. The applicant’s Counsel submitted that a reasonable person would not have any concern about the applicant having unsupervised access to their children, if they had a full understanding of the circumstances, in which the offence occurred, and the steps taken by the applicant to manage his responses. He noted that the applicant worked in public transport for approximately 24 years and that the applicant has had an otherwise unblemished criminal record.

Respondent’s Submissions

92. The respondent provided written submission, which we considered, in addition to oral submissions at the hearing. The respondent adopted a neutral stance and neither opposed nor supported the application.

93. For the most part, the respondent did not disagree with the applicant’s account of the facts. Counsel for the respondent accepted that the disqualifying offence was a ‘singular violent expression’, and that the applicant was involved in a ‘toxic relationship’ at the time.

94. However, she submitted that risk assessment is ‘a forward-looking exercise’, and that the Tribunal should attach weight to the applicant’s current understanding of the behavioural triggers that gave rise the disqualifying offence, and what strategies he has now developed to avoid a recurrence, to assess risk in this case.

95. She asked the Tribunal to consider the applicant’s evidence that he had a prior history of excessive drinking, since approximately 2010, when he first consulted Dr Bakich. Despite seeking such counselling, he did not limit his alcohol intake on the night of the disqualifying offence, and still drinks alcohol.

96. She submitted that the Tribunal might have a degree of concern about the applicant’s insight into his own behaviour, because he was unable to give a clear account of the strategies Mr Bakich had taught him whilst he was in therapy, and that the Tribunal should find that there are lingering concerns that the applicant has not, in fact, developed adequate strategies to prevent a recurrence of offending behaviour.

Section 30 (1) considerations

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

(a) The seriousness of the offences 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.

98. The Tribunal finds that the offence is objectively very serious.

99. The Tribunal also takes into account the fact that, the victim’s account to the police corroborates the applicant’s evidence that she was also verbally and physically abusive to him that evening; that they were in the process of separating; and that both parties were intoxicated at the time.

100. This does not make the offence any less serious, but it does provide a context which supports the applicant’s submission that his conduct was unusual, and out of character. This is supported by the victim’s evidence that this was the only occasion on which he had behaved that way.

101. The Tribunal was also satisfied that the applicant cooperated fully with the Police and made full admissions, even though he pleaded not guilty.

102. Significantly, the offence did not occur in the presence of a child or young person.

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

103. The offence occurred in October 2022.

104. Since the offence, the applicant has not been charged with or convicted of further offences. There is no evidence that the applicant has been accused or convicted of any crimes against children.

105. We considered the respondent’s submissions that there are residual concerns about whether the applicant has taken sufficient measures to address his offending behaviour. However, there is no evidence to contradict the applicant’s account that he has significantly reduced his alcohol intake and that he has sought psychological intervention, which he finds beneficial.

106. We therefore prefer the applicant’s evidence in relation to this issue. He has relocated to another State and does not have contact with the victim.

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

107. The applicant was 56 when the disqualifying offence 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.

108. The victim was 57 years of age when the disqualifying offence occurred. The applicant conceded that the fact that she was female made her more vulnerable.

109. However, whilst gender may, in some or even many circumstances give rise to vulnerability, each case must be considered on its own merits. There is no evidence that gender contributed to a power imbalance in this matter.

110. Intoxication is another factor that may give rise to vulnerability. The evidence demonstrates that both parties were equally intoxicated. We are not satisfied that there is evidence to suggest that the victim was particularly vulnerable in this case.

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

111. The victim was one year older than the applicant.

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

112. The victim was not a child.

(g) The person's present age.

113. The applicant is currently 58 years old.

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

114. The applicant has no other convictions, charges or complaints not leading to charges recorded against him.

115. There are no records of any offences against children.

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

116. It was not contested, and we accept, that the applicant had never committed any offence prior to the disqualifying offence.

117. We considered the respondent’s submission that the applicant was unable to clearly annunciate the strategies that he now employs to manage frustration and anger. However, we find that he did outline strategies, albeit not in detail, that he finds beneficial. There is no evidence to the contrary.

118. The respondent also submitted that the applicant minimised the seriousness of his offence. We did not find that to be the case. He clearly stated that he was aware that his conduct was wrong and expressed remorse.

119. The applicant’s evidence that he has reduced alcohol consumption was uncontested, and we therefore accept it. The fact that he has not offended prior to or since the disqualifying offence is persuasive that he is not a person is likely to re-offend.

120. Furthermore, we considered the character references of individuals who know the applicant very well. There is no evidence to contradict their assessment and we therefore accept that the applicant is a person whose conduct, on the night of the disqualifying offence, was out of character.

121. We also accept, because it was uncontested, that the applicant no longer has contact with the victim. Therefore, we find that the likelihood of any repetition by the applicant of the disqualifying offence or conduct similar to the disqualifying offence is low.

122. If the conduct were to occur in the presence of a child or a young person, it would undoubtedly have a significantly negative impact on any such child or young person.

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

123. The applicant gave evidence, which was corroborated by the character referees, and significantly, by the victim’s own account to the police, that the offence occurred at a time that he was extremely distressed and under great strain, because of the dynamics of the relationship with the victim.

124. He gave evidence that he was also the subject of psychological, verbal and physical abuse, over time, which had a negative impact on his state of mind, and family and other relationships. The character referees corroborate this, and we accept it. The respondent did not present evidence to the contrary.

125. Furthermore, the applicant has expressed remorse and insight into the fact that his conduct, on that evening, was entirely unacceptable and harmful.

126. It is not contested, and we find that the applicant had a prior history of working with children, without incident.

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

127. The respondent tendered a ‘disclosure report-intel submission’, from the Tasmania Police Service, dated 31 October 2022. The applicant objected to the acceptance of this document into evidence.

128. The basis for the objection was that the report contained unsubstantiated allegations of a highly prejudicial nature and because the informant (the victim) was not being called for cross examination.

129. We accepted the document into evidence. However, we attach no weight to it, for the following reasons.

130. It is a report of information provided by the victim, two days after the disqualifying offence. The victim told police that the applicant disclosed to her, on 30 October 2022 (the day after the disqualifying offence) that he had had thoughts of a sexual nature about a girl on the bus that he drives.

131. We agree that this is highly prejudicial to the applicant. The possibility that the applicant, having been charged with assaulting the victim the previous day, would have had contact with her or make incriminating comments to her is slight.

132. Her allegations were not tested by the police. We infer that this is because they were not considered to have sufficient credibility to warrant further investigation.

133. The report is also hearsay, which almost invariably has less weight than direct evidence. The victim’s motivation for making this report cannot be tested. For all these reasons, we do not consider the document to have any weight in this case.

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

134. The Children’s Guardian takes a neutral position in relation to this claim.

The statutory approach

135. The superior Courts have set out the statutory approach that the Tribunal must apply when determining the substantive question of risk.

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

137. As stated, the applicant has only been convicted of the disqualifying offence.

Consideration

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

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

140. We have considered the fact that, since the disqualifying offence, there has not been any suggestion that he has behaved in a manner which presents a risk to the safety, welfare or well-being of children. The Tribunal accepted the applicant’s evidence that he has reduced his drinking considerably.

141. Notwithstanding the disqualifying provisions, and the positive finding against the applicant; having accepted that the applicant has never offended against children or young people, and that his conduct on night of the disqualifying offence was out of character, we do not find that his conduct demonstrates any current real or appreciable risk.

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

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

Section 30 (1A) consideration and findings

144. Having made that finding, we must be satisfied that a reasonable person would allow his or her child to have contact with the applicant and that the making of the order is in the public interest.

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

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

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

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

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

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

147. Additionally, the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk. Such a person would consider the relevance and circumstances of the disqualifying offence, and the evidence of the applicant concerning the intervening period. The fact that the applicant has not been accused or convicted of any offences against children is relevant.

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

149. We find 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 affected person was engaged in any child-related work.

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

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

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

151. In our view there is nothing to demonstrate or suggest that that it would be contrary to public interest to grant a clearance. We consider it to be in the public interest that a person, who is an experienced bus driver, be permitted to continue to engage in such employment to benefit the community.

152. Having found that the issuing of a clearance would not pose an unjustified risk to the safety of children, we find that the applicant’s desire to engage in employment and the protection of children are, in this instance, complementary and in the public interest.

153. We find that it is in the public interest to make the enabling order.

Conclusion

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

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

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

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

Orders

1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

2. The applicant is not to be treated as a disqualified person for the offence, in respect of section 35(3) of the Police Offences Act 1935 (TAS), for which he was convicted on 15 September 2023.

3. The application for an enabling order is granted.

4. Pursuant to s28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a Working with Children Check Clearance.

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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

Amendments

20 June 2024 - 20 June 2024 - Order 2 corrected. “s.66C(1) of the Crimes Act 1900 (NSW)” replaced with “section 35(3) of the Police Offences Act 1935 (TAS)”. “10 November 1995” replaced with “15 September 2023”.

Paragraph 8 corrected. “This” replaced with “The latter offence”.

Decision last updated: 20 June 2024