EDA v Children's Guardian

Relevant history

1. The applicant was granted a clearance on 8 November 2013. The applicant elected "authorised carer" as his child related employment sector and the applicant was verified by the Department of Family Community Services (as it was then known and referred to in these reasons as "the Department") on 21 November 2013 and 8 August 2016.
2. The applicant identified in his document that in March 2016 his "world came crashing down" when his marriage ended and the children were removed from his care, due to an assault by him upon his then partner in the presence of the 4 children who were aged between 11 and 16 and who were at that time placed in his care. The applicant was subsequently convicted of common assault.
3. After the assault there was an investigation by the Department and the Children's Guardian. A risk assessment was conducted by the Children's Guardian pursuant to section 15(3) of the Act. The applicant's carer authorisation was then removed by the Department and the Children's Guardian imposed an interim bar on 4 August 2016 and informed the applicant that it was proposed to cancel his clearance. The applicant provided a statutory declaration on 24 August 2016 to the Children's Guardian.
4. The applicant agrees that he assaulted his former wife, and all the children were watching him do this while he was apparently under the influence of alcohol. The applicant says that he never hit the children. The applicant also says that he did not hit the oldest child but that there were accidents when he attempted to protect himself from her violence and he never intentionally hit her.
5. The applicant says that he has changed and admits that he previously made mistakes. The applicant also says that he has been having extended visits with the youngest of the 4 children who is now aged 14, over the past year, and about which the current child's case worker with the Department was aware but they have now stopped because he does not have a clearance.
6. The applicant also says that he received a letter in August 2016 regarding the interim bar imposed by the Children's Guardian. The applicant says he did not understand what the letter meant and showed it to a caseworker from the Department. Because of the assault, she apparently told him it was not worth lodging an appeal. The applicant followed that advice. In the application to the Tribunal the applicant provides a reason for the lodgement of his application outside the time allowed. The reason written by the applicant is: "The appeal process was never explained to me at the time of the ban. I felt like I was treated poorly by [the Department] and the processes were not explained."
7. It should be observed that the Department has separate responsibilities and procedures to those exercised by the Children's Guardian despite the applicant's attribution of responsibility for the "ban" to the Department.
8. The applicant was provided a letter dated 1 March 2017 by the Children's Guardian concerning final decision to cancel his clearance. The basis of the cancellation identified by the letter was: 1. the applicant's conviction for common assault, 2. his deauthorisation as a carer, and 3. his lack of engagement in remedial action in relation to his alcohol use and domestic violence.
9. The Children's Guardian at that time formed the view that the applicant posed a risk to the safety of children.

Relevant legislative provisions in relation to the application

1. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 (NSW) do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: section 38 Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Roberts v Balancio (1987) 8 NSWLR 436.
2. The "guiding principle" under the Civil and Administrative Tribunal Act and the procedural rules, in their application to proceedings in the Tribunal, "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings", subject to a principle of proportionality to the importance and complexity of those proceedings: subsections 36(1) and 36(4) Civil and Administrative Tribunal Act.
3. The Act came into force on 15 June 2013. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a Working With Children Check Clearance 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 section 3, 28 (1) (a) of the Act.
4. 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.
5. 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 created in section 227 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The offence created by the section reads 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 or imprisonment for 2 years, or both."
6. 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."
7. This definition was arrived at after considering the ordinary dictionary meaning of the words, combined with consideration of the various statutes including the definition contained in section 4 (1) of the Family Law Act 1975 (Cth).
8. The notice of cancellation dated 1 March 2017, which was sent to the applicant, clearly sets out that the time within which to file an application for review with the Tribunal pursuant to section 27 of the Act is 28 days. It was also stated that if the applicant worked in a child related role during the time after he receives the notice, he may be committing a criminal offence and penalties may apply. It would appear that despite this warning the applicant on his own admission has subsequently cared for a 14-year-old child without receiving a clearance. The letter also informed the applicant of the provisions of section 13A of the Act.

Submissions of the parties

1. The applicant's submissions are contained in the 2 documents previously referred to in these reasons. The applicant orally reiterated those matters during the course of the hearing. The Tribunal has also had regard to the hand written application.
2. The respondent made written submissions and further oral submissions to elaborate upon the outline provided to the Tribunal 29 January 2020. The respondent made reference to the factual matters contained within the documents filed with the Tribunal on 17 January 2020.
3. The factual and historical matters do not appear to be contentious in any significant respect.

The Issue

1. The applicant seeks to review an administratively reviewable decision and the application has been filed at least 2 years and 7 months out of time (which is when the Application is dated). The respondent identifies that the application for review was made by filing an application on or about 5 November 2019. The document received by the registry is stamped 13 January 2020. The time for filing the application has to be extended for the matter to proceed to review of the cancellation decision.
2. It is submitted by the applicant that he should be permitted to review the decision out of time and that the time for filing of his application should be extended.
3. The respondent submits that the delay by the applicant and the reasons proffered by him do not justify an extension of time. The respondent also submits that the applicant should not be permitted to circumvent the statutory prohibition period set out in section 13A of the Act, or the procedure for an early application permitted under subsection 13A (2) of the Act.

Consideration

1. Section 41 of the Civil and Administrative Tribunal Act provides: "(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired."
2. The issue the Tribunal is to decide on a review is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the respondent if this is an administratively reviewable decision: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
3. There is no requirement upon the applicant to show that the original decision maker's decision was wrong in relation to an administratively reviewable decision: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.
4. The respondent submits that there is not a fairly arguable case for review of the decision. Because of the delay since the making of the reviewable decision it is considered that the applicant is obliged to demonstrate that his case has substantial merit rather than being fairly arguable: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] per Hodgson JA, Ipp JA agreeing at [17]; Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58], [59]; ZHA v ZGZ [2018] NSWCATAP 249 at [44].
5. The applicant is able to apply under section 13A of the Act which provides as follows: "13A EMBARGO AFTER REFUSAL OF APPLICATION OR CANCELLATION OF CLEARANCE (1) A person who is refused a working with children check clearance, or whose clearance is cancelled under section 23, is not entitled to make a further application for a clearance-- (a) until 5 years after the date notice of the refusal or cancellation was given to the person, or (b) unless there has been a change of circumstances under which a further early application is permitted under this section. (2) A further early application is permitted if any of the following occurs after the date of the refusal or cancellation-- (a) proceedings that were pending at the date of the refusal or cancellation are withdrawn or dealt with without the person being found guilty of the offence, (b) a finding of guilt is quashed or set aside, (c) a finding the subject of an assessment requirement is quashed or set aside or otherwise expressly or impliedly ceases to have effect, (d) the Children's Guardian permits a person to make such an application."
6. In BKW v Department of Family and Community Services [2014] NSWCATAD 205, at [18] and [34] it was held that time limits should generally be strictly enforced unless the interests of justice require an extension to be granted, and in that matter a delay of 6 weeks was considered a substantial delay. Also noted in that decision, is the fact that it is not necessary to obtain legal representation before filing an application for external review.
7. Also in BKW v Department of Family and Community Services [2014] NSWCATAD 205 at [21] the Tribunal modified the principles identified for granting an extension of time in an administrative review matter as set out in relation to an appeal in Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [18] and [22]. It was observed in Jackson v Land and Housing Corporation that the discretion to extend time is to be exercised judicially having regard to the guiding principles in section 36 of the Civil and Administrative Tribunal Act which refers to the imperative to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
8. The principles identified and as modified from Jackson v Land and Housing Corporation [2014] NSWCATAP 22 are: 1. the length of the delay; 2. the reason for the delay; 3. the nature of the decision subject to review and whether there is an arguable case that the decision the subject of review is not the correct and preferred decision and should be set aside or varied; and 4. prejudice to the respondent or any other interested person if strict compliance with the rules is applied.
9. The respondent also refers to the decision of Senior Member Ransome in Lonergan v Commissioner for Fair Trading [2017] NSWCATAD 187 at [7] where it was summarised the relevant factors in considering the exercise of the discretion to extend time comprise: 1. the length of the delay; 2. the reason for the delay; 3. the applicant's prospects of success; 4. any prejudice suffered by the respondent; 5. public interest considerations; 6. timeliness or delay in antecedent administrative processes; and 7. whether strict compliance with the rules will work and injustice upon the applicant.
10. The decision sought to be reviewed was based upon a number of grounds. They have been previously identified in these reasons. They are: 1. the applicant's conviction for common assault, 2. his deauthorisation as a carer, and 3. his lack of engagement in remedial action in relation to his alcohol use and domestic violence.
11. The explanation given applicant for the delay in filing the application shows that he clearly chose not to seek a review at the time because of the serious circumstances which led to the cancellation. The applicant took advice which was proffered to him by a caseworker.
12. The applicant was convicted of assault and sentenced to a 12 months good behaviour bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in relation to the assault which bond expired on 17 March 2017, and an Apprehended Domestic Violence Order was made listing his former wife and the children as persons in need of care and protection.
13. Following the applicant's departure from the home, further allegations were made in relation to his conduct towards the children. Those allegations included that: 1. he allegedly whipped the family dog causing a child particular distress, and 2. he allegedly grabbed a child around her throat and neck and shook the child, and 3. he yelled and screamed at a child whilst the child cowered in the corner, causing the child to shake and cry.
14. The Department substantiated physical harm, domestic violence and parental alcohol misuse in relation to 2 of the children. The applicant stated to the Children's Guardian in August 2016 that he had not used alcohol since March 2016 and did not require professional support to maintain his sobriety. The Children's Guardian did not agree. It was considered that there was a long-standing history of alcohol misuse and professional and therapeutic supports would be required to address the risk posed by this behaviour. It would appear that violence occurred under the influence of alcohol.
15. The delay is sufficiently lengthy to be characterised as not insubstantial. The reasons for the delay do not assist the applicant. In any event, there is a statutory provision, section 13A of the Act which envisages the making of a fresh application in circumstances which the applicant has described in his documents provided to the Tribunal. The reasons for the delay are not satisfactory in explaining why time should be extended. The applicant says that he was advised that the appeal would not be of utility, which appears to be a justifiable conclusion given the circumstances admitted by the applicant which led to the assault conviction.
16. In addition, it is considered that the applicant would have limited prospects of success especially since the review would be undertaken over 2 ½ years after the initial decision.
17. At the time that the decision was made it was clearly the correct and preferable decision. The applicant chose not to exercise his appeal rights. The legislation provides a procedure for a fresh application after 5 years or complying with the provisions of section 13A of the Act.
18. The paramount consideration in relation to the Act is the protection of the safety welfare and well-being of children. The legislative scheme makes provision for the applicant to seek reinstatement of his previous clearance on the basis of his current circumstances. It would appear to be therefore minimal injustice to the respondent if an extension of time were not granted. The paramount consideration takes precedence over consideration of the applicant's interests.

Conclusion

1. The applicant in this matter has now sought to review a decision made to cancel his working with children check clearance over 2 ½ years ago and the application has been made outside the time period specified for such an application.
2. The applicant seeks an extension of time and that is opposed by the respondent.
3. There is significant and substantial delay having regard to all the circumstances previously referred to in these reasons.
4. The reasons for the delay provided by the applicant are inadequate to explain why he did not act upon the notification that he could review the decision in the Tribunal within 28 days. The applicant chose his course of conduct.
5. The Tribunal in the circumstances referred to previously, including the motivating factors for the decision, finds that there is not a fairly arguable case on the evidence and submissions provided in support of the application that the decision the subject of review is not the correct and preferred decision and should be set aside or varied.
6. If this was the applicable standard to be attained by the applicant then the Tribunal would not exercise its discretion to extend time.
7. The applicant, however, is obliged in the circumstances of this matter to demonstrate that his case has substantial merit rather than being fairly arguable and has not so demonstrated: see Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] per Hodgson JA, Ipp JA agreeing at [17]; Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58], [59]; ZHA v ZGZ [2018] NSWCATAP 249 at [44]. That substantial merit test cannot be met since the lower standard is not able to be achieved in the circumstances.
8. The interests of justice do not in this matter require an extension to be granted. The guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings is not advanced by an extension of time.
9. The paramount consideration in relation to the Act is the protection of the safety welfare and well-being of children. The legislative scheme makes provision for the applicant to seek reinstatement of his previous clearance on the basis of his current circumstances. The public interest is not advanced by granting an extension of time having regard to those competing interests. There is also minimal prejudice to the respondent in those circumstances by not extending time.
10. The orders of the Tribunal shall be: 1. The Tribunal refuses the application to extend time for the filing of the Administrative Review application dated 31 October 2019. 2. The application for Administrative Review filed by the applicant is dismissed.

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 2020