CFR v Children's Guardian [2016] NSWCATAD 159 | Case summary

NCAT Administrative and Equal Opportunity|2016-05-25|Before: Maxwell J

The Applicant's present age

The Applicant is currently 25 years of age.

The seriousness of the Applicant's overall criminal history and the conduct of the person since the offence

Other than the trigger offences the Applicant has no criminal history and has not been the subject of any complaints or incidents concerning interpersonal or sexual violence.
At the criminal trial, character references were provided by the Applicant's former teachers, and Justice Campbell found them to be impressive witnesses. These witnesses attested to the Applicant's overall good conduct and character including honesty, integrity and diligence.
The Applicant also provided the Respondent with a reference from his mother dated 30 August 2015, who is a health professional and "a mandatory reporter". She is living with the Applicant and states that both she and her husband, who is a teacher, "confidently advocate" for the Applicant. She states that she has observed the Applicant with his younger cousins and found him to be caring and patient. She says he has the support of very stable extended families.
The Applicant also provided a reference from a current employer which confirms that the Applicant has been casually employed at several sites based in Sydney since December 2013 and is still currently employed. It states that every client that has worked with the Applicant has asked for him to come back and that he is reliable, hardworking and dedicated to doing a good job.

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

Dr Neilssen's expert view is that the Applicant is a very low risk of reoffending and a very low risk to the safety of children. The Respondent said that she did seek challenge the evidence of the Applicant's good character that was provided by his teachers at the criminal trial.
The Tribunal is persuaded that the Applicant's conduct arose out of unique and extreme circumstances and as such is considered to be an isolated event.
There is no evidence to support a finding that beyond this isolated event, the Applicant has difficulties controlling his emotions or is at risk of generalised violence.

Conclusion and orders

The Tribunal has concluded that the Applicant does not pose a real and appreciable risk to safety of children.
The Tribunal orders that: 1. The decision of the Children's Guardian dated 6 October 2015 to refuse the Applicant a Working with Children Clearance is set aside 2. In substitution of that decision, the following decision is made: the Applicant is granted a Working with Children Check Clearance. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 July 2016

Child Protection (Prohibited Employment) Act 1998(NSW)

The object of the Act

The Act requires persons engaged in child-related work to have WWCC clearances: the Act, s 3 and s 8. Section 4 of the Act provides that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act.
Neither the Applicant nor the Respondent bear an onus of proof in relation to this application: BJB v NSW Office of the Children's Guardian [2014] NSSWCATAD 111 at [32]. The Act does however impose a duty on the Applicant to fully disclose to the Tribunal any matters relevant to an application for a WWCC: section 28 (5) of the Act.
The Tribunal must determine on the balance of probabilities whether the Applicant poses a risk to the safety of children having regard to the factors set out in section 30 (1) of the Act (as it was at the time of the Applicant lodging his application to the Respondent for a WWCC clearance).
The word "risk" in the Act is construed to mean a risk that is "real and appreciable". In BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Beech-Jones J cited with approval at [26] the following by Young CJ in Commissioner for Children and Young People v V [2002] NSWSC 949 concerning the word "risk" in the now repealed Child Protection (Prohibited Employment) Act 1998 (NSW): 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 that 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 children': at [42]
The Tribunal has followed this meaning of risk: See for example AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69; BFC v The Children's Guardian [2014] NSWCATAD 90; BFX v Children's Guardian [2014] NSWCATAD 115 and BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164.
The Tribunal's jurisdiction under the Act is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61].

CFR v Children's Guardian

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