DOP v Children's Guardian

NCAT Administrative and Equal Opportunity|2018-12-18|Before: Hodgson J

of Family and Community Services [2016] NSWCA 124 Smith v Commissioner of Police [2014] NSWCATAD 184 T v H, Unreported, Supreme Court NSW, Hodgson J, 19 December 1985 ZZ v Secretary of the Department of Justice [2013] VSC 267 Category: Principal judgment Parties: DOP (Applicant) Children's Guardian (Respondent) Representation: Counsel: J Tyler-Stott (Applicant) I Fraser (Respondent)

Solicitors: Commins Hendriks (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2018/00272422 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.

Introduction

This is an application filed on 31 August 2018 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act"). The Children's Guardian informed the applicant, who is referred to as "DOP" in these proceedings, that due to a disqualifying offence included in his criminal history, he was not eligible to be granted a Working with Children Check Clearance ("WWCCC").
On 1 April 2015, the applicant was charged with an offence contrary to s474.27A of the Criminal Code (Cth) of using a carriage service to transmit an indecent communication to a person aged under 16 years. The applicant made full admissions in relation to the offence. He pleaded guilty to the charges and was discharged without conviction on entering a 12 month reconnaissance to be of good behaviour.
The offence is a registerable offence within the meaning of that term in the Child Protection (Offenders Registration) Act 2000 ('the CPOR Act'), as it comprises a Class 2 offence under the CPOR Act: s3 CPOR Act. The offence is one which is specified within Schedule 2 of the Act which deems the applicant to be a Disqualified Person and who is unable to obtain a WWCCC.
An application was made by the applicant to the Children's Guardian for a WWCCC on 10 March 2018. On 8 August 2018, the applicant was advised that he was a Disqualified Person due to the offences with which the applicant was found guilty of in April 2015.
In support of an order under section 28 (1) of the Act the applicant told the Tribunal that he wishes to remain employed as a landscape gardener. He states that he requires a WWCCC in order to fulfil that ambition as his employer carries out landscaping work within schools.
The respondent filed written submissions stating that it maintains a neutral position as to whether the applicant should be treated as a Disqualified Person for the purposes of the Act in respect of the charge to which he pleaded guilty in April 2015. The respondent also maintains a neutral position as to whether the applicant has rebutted the presumption that he is a risk to the safety of children, and as to whether the matters in s30(1A) of the Act have been satisfied.
An order has been made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") prohibiting publication and disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal. 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.

The Hearing

The matter proceeded to hearing on 18 December 2018.

The Evidence

The application in this matter attached a letter from the Children's Guardian dated 8 August 2018 informing the applicant that he is a Disqualified Person under the Act. The documentary evidence provided on behalf of the applicant and the respondent which has been received by the Tribunal is as follows:

Documents relied upon by the applicant 1. Letter of the applicant dated 9 December 2018 (A1). 2. Report of Tim Watson-Munro, Consultant Psychologist, 22 November 2018 (A2). 3. Report of John W Redman, Psychologist, dated 7 April 2016 (A3). 4. Letter of support from a community football club official, undated (A4). 5. Letter of support from Officer of the Australian Army, dated 12 September 2018 (A5). 6. Letter of support from employer, dated 25 September 2018 (A6). 7. Letter of support from director of employer, dated 18 October 2018 (A7). 8. Further report of Tim Watson-Munro, Consultant Psychologist, dated 18 December 2018 (A8). 9. Application filed 31 August 2018 (A9).

The Documents relied upon by the Respondent 1. Bundle of documents produced in relation to an application for a stay of the respondent's decision of 12 September 2018 (R1). 2. Bundle of documents filed by the respondent on 5 December 2018 (R2).

The Tribunal received and was assisted by written submissions from both the applicant and the respondent.

Legislative Provisions

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 sections 3, 28 (1) of the Act.
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 section 4 of the Act.
There is no relevant definition of "child abuse" contained in the Act.
However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children's Guardian [2014] NSWCATAD 115 at [19]- [30], an offence of "child and young person abuse" has been included in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units"
In BFX v Children's Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows: "The ordinary meaning of "child abuse" in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987."
The offence with which the applicant was charged and found guilty, is using a carriage service to transmit an indecent communication to a person under 16 years pursuant to s474.27A of the Criminal Code (Cth), in the circumstances referred to later in these reasons. The offence is one which falls within clause 1(1)(ac) of Schedule 2 of the Act. Therefore, the applicant is to be treated as a Disqualified Person. By reason of section 18(1)(a) of the Act the Children's Guardian must not grant a WWCCC to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as "Disqualified Persons", in the same section of the Act. The applicant is, relevantly for the purposes of the Act, now an adult and was an adult, aged over 18 years, at the time of the offence.
An enabling order is sought by the applicant pursuant to section 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."
The respondent is a party to the proceedings pursuant to section 28 (4) of the Act.
A person is not permitted to engage in "child-related work" unless they hold a WWCCC: see section 8 of the Act. There is no issue in this matter that the applicant wishes to engage in work as landscape gardener which, at times, will require that the applicant to hold a WWCCC.

Standard of Proof

It is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children (section 28 (7) of the Act). It is well established that the standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children's Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children's Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children's Guardian [2016] NSWSC 738, per Fullerton J at [34].

Relevant considerations

In making a determination under section 28 of the Act, the Tribunal must consider the matters under section 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."

What must be determined

The Tribunal is to determine whether the applicant has discharged the onus identified in section 28 (7) of the Act and whether there is sufficient evidence to rebut the presumption that he poses a risk the safety of children: section 28 (7) of the Act; BKE v Office of the Children's Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before it in order to assess whether the onus of proof has been discharged to rebut the presumption. Such evidence to be considered will include the evidence provided by the respondent as well as the evidence provided by the applicant.
In determining whether the applicant does pose a risk to children it is accepted that the risk must be "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was); BKE v Office of the Children's Guardian[2015] NSWSC 523 per Beech-Jones J esp at [26], [27].
In BKE v Office of the Children's Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]: [29] In Commissioner for Children and Young People v FZ [2001] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 ("Briginshaw") in the above passage from IK (at [68]). I share his Honour's misgivings. Briginshaw warns about the use of "inexact proofs" in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw's admonitions might give rise to an appeal on a "question of law". It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J). ... [31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made "unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw" (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ): "It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case." [32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists "an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access" (M v M at p 78). [33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with "unacceptable risks" but "real and appreciable" risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
In the disqualifying matter before the Tribunal the applicant was found guilty of the offence. He was discharged without conviction on entering a twelve month reconnaissance to be of good behaviour.
The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61], and R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130].

Discussion of the evidence

The evidence received by the Tribunal is required to be considered under each of the eleven subsections of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. Some of the subsections may be thought less relevant and may be given less weight than others, however each of the subsections is to be considered. That evidence is now set out below.
In addition, if the Tribunal concludes that the applicant does not pose a risk to the safety of children, it must also consider the remaining criteria as set out in section 30(1A) of the Act.

The seriousness of the offences with respect to which the person is a Disqualified Person or any matters that caused a refusal of a clearance or imposition of an interim bar

It is without doubt that the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years is serious. Notwithstanding this, the circumstances in which the applicant offended are set out in the applicant's and the respondent's submissions which include the victim being 15 years of age. She had met the applicant via the soccer club for which they both played. The applicant played for the men's team; the victim played for the women's team. The victim and the applicant began talking at football. Initially they spoke about football. The applicant had started messaging her on Facebook and then started sending her text messages. They also communicated via Snapchat and Instagram. The applicant later asked for photographs of the victim on two separate occasions. The victim sent the applicant photographs of her wearing underwear using Snapchat. The applicant sent two photographs of himself in his underwear in reply. The applicant commented on the photographs of the victim. The victim told the applicant before the exchange of photographs that she was 15 years of age. That is the extent of the factual circumstances which relate to the charge.
The respondent submits 'there is now some significant evidence before the Tribunal which suggests that the applicant's risk to children may be towards the lower end of the scale'. Whilst the exchange of photographs of the applicant and the victim in their underwear is in our view serious, we accept the submissions of the respondent that the offending is at the lower end of the scale. We also have taken into consideration that the nature of the punishment received by the applicant indicates that the applicant's disqualifying offence is also at the lower end of objective seriousness for such offences.

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

The relevant matters occurred approximately between September and November 2014, being slightly over 4 years before the hearing.
The applicant has also been continuously employed since the time of the offence and has formed a stable relationship with a partner with whom he has had a child. The applicant completed counselling following the charges and was able to in evidence acknowledge the stress, embarrassment and uneasiness the victim felt as a result of his conduct. In terms of criminal conduct, the applicant has since been convicted in 2016 of driving with a high range prescribed concentration of alcohol. This offence does not in our mind have any significant weight in our determination of this matter.

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

The applicant was aged 25 years at the time of the disqualifying offence.

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

The victim was 15 years of age at the time of the disqualifying offence. The respondent submits that her vulnerability arose from her age, and the difference in age between her and the applicant, which we accept.

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

The applicant was approximately 10 years older than the victim.

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

The applicant admitted knowing that the victim was a child.

The person's present age

The applicant was 29 years of age at the date of the hearing.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

In addition to the disqualifying offence, as noted above, the applicant was convicted in 2016 for driving with a high range prescribed concentration of alcohol.
In 2010 the applicant was charged with making a false statement to Victorian Police regarding a stolen vehicle. On 7 June 2010, the applicant was discharged at Latrobe Valley Magistrates Court, on the recorded basis "diversion complete". The additional offences and conduct which the applicant has been subject to do not in our mind materially affect our determination as to whether he is currently a risk to the safety and wellbeing of children.

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

The principles which are relevant in assessing the likelihood of repetition of abusive behaviour in relation to children are instructive: see T v H, Unreported, Supreme Court NSW, Hodgson J, 19 December 1985, page 18; SL v Secretary, Department of Family and Community Services [2016] NSWCA 124.
We have taken into consideration the evidence of the expert, Mr Watson-Munro, Consultant Psychologist. Mr Watson-Munro reports that the applicant had expressed to him "deep remorse for his past actions" and that "he has now matured and he is very focused on supporting his fiancée and their child". The applicant "denied any paraphilic behaviour and stated quite emphatically that his sexual orientation is towards consenting adult females".
Mr Watson-Munro stated that he spoke with the applicant's fiancée, who is recorded to have informed him that: "[The applicant] 'exposed his criminal behaviour to her shortly into their courtship'; that he is a devoted and supportive partner and father; that she has no concerns in relation to him being with their young son; and that she would not stay with the applicant if she had concerns with him."
Mr Watson-Munro provided the following opinion regarding the circumstances surrounding the disqualifying offence, and his level of risk: "[The applicant] was dramatically destabilised by the diagnosis of diabetes Type 1 approximately 2 months prior to his offending behaviour. Arising from his symptoms and his fears regarding the future, he drifted into a pattern of episodic binge drinking, primarily on the weekend. He conceded that he was highly anxious and depressed during this time and no doubt subjective in his outlook, although not to the point of him appreciating the gravity of his offending behaviour … I concur with the opinion expressed by Mr Redman .."
The opinion of the Psychologist, Mr Redman, with whom the applicant completed Court ordered counselling in 2014 in relation to the disqualifying offence, states in his report "I believe [the applicant] is not a risk to himself or the community. He freely realised the folly of the offence and is determined to stay a law abiding citizen".
Mr Watson-Munro also noted that "[The applicant's] life is well structured through family and employment and if given the opportunity, I believe that he will complete his training and make a solid contribution to the local community in his new trade".
It is without doubt that there would be a detrimental impact on children of any repetition of the disqualifying offence. However, based on the available expert evidence, the likelihood of the applicant repeating the behaviours which have led to the disqualifying offence is in our view low. Our decision in this regard takes into consideration the lack of any relevant offending, the time that has passed since the offence, and the applicant's current life circumstances.

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

There is no evidence of an order of a court or Tribunal in force in relation to the applicant.

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

The applicant has given evidence in relation to which he considers relevant to his application his oral evidence reflected, in the majority, the matters as set out in his written evidence.
The applicant submits in (A1): "I write to express my regret and sorrow for what I did some years ago. It was a stupid, immature and criminal act that still haunts me. I saw the damage that I did through my own actions. The girl's father was rightly enraged by my behaviour. When I saw him at soccer or down the street (we only lived in a small town) I did my best to avoid him. But when I was unable, he verbally abused me - which I don't blame him for. This must have caused the young lady embarrassment as well as significantly affecting her dad. The complications, including the need to change soccer clubs, would have been very difficult for her to deal with. I didn't consider the consequences of my actions back then. I make no excuses for my criminal behaviour but I'd like to explain how my circumstances then are so different to my circumstances now and explain how I will not fall into such error again. Leading up to the offence, I was told I had diabetes. I was drinking heavily. I drifted from one job to another. I had no goals, sense of direction and life was really a state of disarray. It was in these circumstances that I enjoyed reciprocal attention with her. I wish I could take that decision back but at the time, as I said earlier, I didn't consider the consequences of my actions for me or for others. Now, I have a loving fiancée who accepts me despite this offence. I have a beautiful child. I have a family to support and to be an example. I am so ashamed of what I did and I will not do such a thing again. I am totally committed to my future wife, child and hopefully more children. To be able to forge a path in my chosen field means the world to me and would enable me to be that example. Please accept my words when I say, I am not the same person as I was and will not make the same mistake. I have learned significantly from my mistakes through the impact of the young lady, her dad, no doubt others, the ripple effect into my family and my fiancée's life and one day I will have to explain it to my kids. I am filled with dread thinking about that moment, but hopefully I will be able to show them, despite mistakes, no one is beyond repair."
Letters of good character and support by a president of the football club of which the applicant is a member, an officer of the Australian Army of which the applicant was associated with, and two letters from his employer all support the good character of the applicant and the low risk that the applicant poses to the safety of children.
We have taken this evidence into consideration and find that it is persuasive in making a positive finding.

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

No information was obtained in accordance with the section.

Any other matters that the Children's Guardian considers necessary

The respondent remains "neutral" as to whether the applicant has discharged the onus to displace the presumption in s28(7) of the Act, or that the applicant poses a risk to the safety of children.

Consideration of the section 30(1A) matters

We have considered the matters as required to by s30(1A)(a) of the Act. In having considered both the oral and documentary evidence we find that a reasonable person who is acquainted with the circumstances of the applicant's disqualifying offence, the applicant's lack of relevant offending since the disqualified offence, his current life circumstances and the character references from the applicant's employer and other persons involved in his life, would allow his or her child to have direct, unsupervised contact with the applicant.
In respect of s30(1A)(b) of the Act, we find it is in the public interest to make an enabling order that the applicant be able to engage in work where he may come in contact with children. The applicant intends to carry out his role as a landscape gardener which may involve working within schools. It is in the public interest for the applicant to be able to pursue this work, which is both suitable to him and in the light of the community generally, beneficial to it.

Consideration of the facts and determination

At the time in which the offences occurred the applicant was 25 years of age. He is now approximately 29 years of age. The applicant is clearly an adult of more mature years than he was at the time of the offence.
We accept the applicant's evidence which explains the circumstances in which the offending conduct occurred. We find that the applicant has rebutted the presumption contained in section 28(7) of the Act.
We have considered the respondent's submissions which remain neutral in regard to a finding by the Tribunal that the applicant does or does not pose a real and appreciable risk to the safety of children. We accept that the disqualifying offence is at the lower end of the scale which relates to offences of such nature to which the applicant has been found guilty.
The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks that may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus, however it is not the only factor that must be considered.
In all the circumstances, on the balance of probabilities, taking into account all the considerations required under section 30 (1) of the Act, and having regard to the material before the Tribunal, it is concluded that the applicant does not pose a risk to the safety of children. We must, and have, considered the provisions of s30(1A) of the Act.
We note that the decision of CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 which 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."
We accept and have taken into consideration the evidence of the applicant and those persons who have provided supporting references. Their evidence supports a positive finding. We have considered the police facts which relate to the disqualifying offence. The applicant pleaded guilty to those facts. In having this information before them, 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 applicant was engaged in any child related work.
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."
We find nothing contrary to the notion of the public interest in granting a WWCCC to the applicant. We find that the applicant's right to follow his ambition of a landscape gardener, contrasted with the protection of children, are in this instance complementary and in the public interest. Such activity would not pose an unjustified risk to the safety of children.
The applicant should receive a Working with Children Check clearance.

Orders

The order of the Tribunal is that: 1. It is declared the applicant is not a Disqualified Person for the purposes of section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) for the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years pursuant to s474.27A of the Criminal Code (Cth) entered on 30 April 2015 at the Magistrates Court at Latrobe Valley in Victoria. 2. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed on 31 August 2018 is granted. 3. The Children's Guardian is to grant a working with children check clearance to the applicant pursuant to section 26(6) of Child Protection (Working with Children) Act 2012 (NSW).

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: 06 February 2019

Children and Young Persons (Care and Protection) Regulation 2012(NSW)

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Judgment (29 paragraphs)

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Legislation Cited (10)

Cases Cited (21)

Cited By (1)