EHC v Children's Guardian

NCAT Administrative and Equal Opportunity|2020-06-30

Introduction

This is an application filed on 16 April 2020 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 'EHC' 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").
In early 2005, the applicant was charged with committing an act of indecency with a person over 16 years. The applicant made full admissions in relation to the offences. He pleaded guilty to the charges and received a sentence of, charge found with no conviction recorded providing he is of good behaviour for 18 months (s10((1)(b) Crimes Sentencing Procedure Act 1999). 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 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 hearing took place by audio visual link over one day. The applicant was represented by his solicitor Mr Bainbridge. The respondent was represented by Ms Swami of counsel.

The Evidence

The Application in this matter attached a letter from the Children's Guardian dated 1 April 2020 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 was tendered included:

Affidavit of the applicant sworn 1 May 2020: Exhibit A1
Affidavit of the applicant's wife sworn 15 June 2020: Exhibit A2
Application filed 16 April 2020: Exhibit A3;

The evidence of the respondent included:

Bundle filed 22 April 2020: Exhibit R1
Bundle filed 4 June 2020: Exhibit R2
Bundle of documents produced by NSW Police: Exhibit R3
Bundle filed 22 June 2020: Exhibit R4

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 was commit an act of indecency towards a person over the age of 16 years pursuant to section 61N(2) Crimes Act 1900 (NSW), in the circumstances referred to later in these reasons. The offence with which the applicant was charged and 'convicted' is one which falls within Schedule 2.1(1)(e) of the Act. Therefore, the applicant is 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, 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.
The applicant is not permitted to be a primary carer for his two grandchildren unless he holds a WWCCC. There is no issue in this matter that the applicant wishes to obtain a WWCCC to be one of the main carers for his two grandchildren.

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 had a conviction recorded and was sentenced to a good behaviour bond pursuant to s 10(1)(b) Crimes Sentencing and Procedure Act for the offences referred to in Schedule 2 of the Act.
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

The disqualifying offence with which the applicant has been convicted is of course serious, however, it is at the lower end of the range of sexual offences. The applicant adopts, and pleaded guilty to the police facts which are contained at page (R1 page 7) as follows: On 7 April 2005 the applicant was parked in the crowded car park of the Stockland Mall in (Sydney). The victim looked into the applicant's care and observed him masturbating. The victim contacted security who detailed the applicant and police later attended taking him to a local police station. The applicant initially denied all allegations before admitting that he did masturbate toward a woman in his vehicle. He explained that he tried to conceal himself and did not believe anyone could see him. The applicant cited marital problems as the reason for his behaviour, accepting that he knew his actions were wrong.
He was charged with the stated offence to which he pleaded guilty. On 3 May 2005, he was directed to enter into a good behaviour bond pursuant to s10(1)(b) of the Crimes (Sentencing & Procedure) Act 1999 for a period of 18 months. He did not breach the bond.
The sentence received by the applicant is a positive factor for him in support of his application.

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

Approximately 15 years have passed since the disqualifying offence took place.

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

The applicant was aged 43 years that 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 38 years of age at the time of the disqualifying offence. The respondent submits "this should be viewed in the context of the relationship between the applicant and victim." We accept this submission.
The victim was not a child. There is no evidence to suggest that the victim was vulnerable, over and above, the vulnerabilities of a reasonable person.

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

The difference in age between victim and the applicant is approximately five years.

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

The victim was not a child.

The person's present age

The applicant is currently 58 years of age.

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

The applicant has not come to the attention of the authorities for any offence since the disqualified offence.
The applicant admits that he was involved in a domestic violence incident with his wife on 12 June 2004. The details of the event relate to the applicant returning home and being in a 'very angry state' due to a telephone conversation he had concerning his son being arrested earlier that year. The applicant said he smashed a number of vases in the house before cleaning them up. He requested his wife call the police to report the incident to which she refused. The applicant attended his local police station to report the incident. The NSW Police did not take any action and there was no evidence of any domestic violence perpetrated against his wife in relation to this incident.
The police were not satisfied that his 14 year old daughter, who was home at the time of the incident, was at any risk. We attach no weight to this event.
We find the lack of subsequent adverse offences is a positive factor in determining this application in favour of the applicant.

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

The respondent accepts that the disqualifying offence occurred 15 years ago and it is the only record in the applicant's criminal history. It is also important that the disqualifying offence did not involve a child victim. The respondent submitted that we ought to consider what measures the applicant has taken to manage his stressors, such as his mental health since that incident. In particular, the applicant sets out both in his oral and written evidence that the trigger for committing the disqualifying offence was a combination of a difficult marital relationship, problems with his son and daughter-in-law and a longstanding history of depression and the effects of medication to treat his depression.
The applicant in his Affidavit sets out that he consulted two doctors who prescribed him medication for depression. He also underwent some counselling in relation to marital and family problems with a counsellor through his employer, and also privately with a counsellor that was engaged by his wife with the family.
The respondent submitted that the Tribunal should consider the lack of evidence as to any report put forward by the applicant in relation to such counselling.
We have considered these matters and we find that the applicant underwent appropriate counselling both with his treating General Practitioners, Drs Fisher and Ristevski. In cross-examination, the applicant said that it was Dr Ristevski that spoke to him about masturbation and the inappropriateness of the place where he was found to be masturbating. Despite any formal report in relation to counselling being in evidence, we accept the applicant gave a full and frank explanation that he consulted with a number health care professionals to treat his depression, difficult family relationships and the stress associated with his son's criminal history. The likelihood of any repetition of the applicant committing an act of indecency in our view is extremely low, having considered the oral and documentary evidence before us. As set out above, the applicant not having been involved with police or other authorities in any respect since the disqualifying offence which is a positive factor. We also accept the applicant's explanation as to the circumstances which contributed to him making a poor decision and masturbating in public.

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.
The respondent in her submissions raises a potential concern that there is conflicting information given by the applicant in relation to the disqualifying offence. In this regard the respondent refers to the applicant's interactions with the police, the Department of Communities and Justice and the respondent in collating the material filed in these proceedings.
In particular, the applicant was cross-examined about a conversation he had with an officer of the Department of Communities and Justice on 7 April 2020. He admitted that the said the following in relation to the offence: 15 years ago, I went to school to pick up my kid, I had a fight with a lady in the car park. I told her to fuck off, she was angry and I went to pick up my kid. When I came back to the car, she had called the police and told another story. I go to Liverpool Court, the man said to say I did what she claimed and that I could walk away with a good behaviour bond and be on the clear after 5 years.
The applicant said that he told the officer of the Department of Communities and Justice this version of events as he was embarrassed about the truth and believed he was speaking with a young lady who could have been the age of his daughter. Whilst a lack of candour may count against the applicant, we accept the explanation given by him. We are not satisfied that he was attempting to minimise the facts and circumstances concerning the offence with which he was charged. EHC came across as a proud family man who is extremely embarrassed and remorseful for a mistake he made some years ago.
In a similar submission and theme during cross-examination it was put to the applicant that he had not told his wife the truth about the disqualifying offence until he submitted the application to this Tribunal. The evidence of both the applicant and his wife was consistent in this regard. The applicant said he was embarrassed about his conduct and had not told his wife about the incident until it became an issue which he had to disclose. Again, we find that the applicant is an honest and reliable witness and we accept his explanation in this regard. We are satisfied that the applicant was not attempting to minimise the facts and circumstances surrounding the offence with which he was charged and convicted.
We make similar findings in relation to the cross-examination concerning the applicant admitting to the police facts where he was masturbating towards a woman. The applicant denied that he any knowledge that a woman could see him masturbating. We accept his evidence in this regard.
The applicant and his wife speak highly of a positive relationship the applicant has with his grandchildren. There was no evidence to the contrary and we accept that the applicant is a loving grandfather who has agreed to take on the fulltime care of his two grandchildren, together with his wife, in very difficult family circumstances.

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

In the respondent's closing submissions we were taken to a number of inconsistencies in the evidence which it was submitted should be considered in the Tribunal reaching a conclusion concerning the application. Ms Swami contends that the Tribunal should consider the different versions provided by the applicant in relation to the disqualifying offence. We have addressed those above and place little weight on the differing versions having accepted the explanation provided by the applicant.
The respondent said there is little evidence confirming any counselling undertaken by the applicant in relation to the reasons why he committed the offence. We have taken into consideration a number of entries in the documents where the applicant has referred to previous counselling he participated in notwithstanding the absence of a report being in evidence.
The respondent said we should take into consideration that the applicant has not offended since the disqualifying offence. We have duly done so. Ms Swami also said that little weight can be placed on the evidence of an incident of domestic violence in respect of the Tribunal's role concerning this application. We accept her submissions and place no weight on that evidence.

Consideration of the section 30(1A) matters

The respondent makes the following submission in respect of section 30(1A)(a) of the Act: "The respondent submits that if the Tribunal is satisfied with the s30(1) factors, it is to consider whether a 'reasonable person' with the knowledge of the information disqualifying offence may allow his or her child to have direct, unsupervised contact with the applicant whilst he was engaged in child related work. … while there are concerns regarding the weight to be placed on the applicant's wife's affidavit, it is accepted that the applicant has not committed any offences towards children and appears to have been caring for his grandchildren for approximately 3 years without incident. This supports the view that if the s30(1) factors are satisfied, a reasonable person would allow the applicant to have direct, unsupervised contact with children."
In respect of section 30(1A)(b) of the Act, the respondent submits that it is in the public interest for the applicant to be granted a WWCCC so that he can care for his grandchildren and prevent them being placed into the foster care system.

Consideration of the facts and determination

At the time in which the offence occurred the applicant was 43 years of age. He is now approximately 58 years of age. There is no evidence that the applicant has come to the attention of the police or other authorities since the time of the disqualifying offence.
We accept that the applicant is a truthful and reliable witness. We accept his explanation concerning the circumstances which surround the disqualifying offence. Those reasons include that in 2005 it was a particularly difficult time in his life. The applicant's eldest son in 2003 began to go 'off the rails'. He was missing work without any valid reason and his behaviour was changing with little understanding of why. The applicant's son in 2004 was arrested by police. He was charged with assault, abduction and other matters. As a result he spent approximately a week in custody before being granted bail. His criminal matter was not finalised until 2005. Between 2004 and 2005 the union between the applicant and his wife became strained. The applicant was struggling to deal with various associated problems and his mental health suffered significantly. The applicant said he was on medication for depression at the time of his offending in 2005. As a result of that medication he was experiencing side effects, irrational mood changes and difficulty regulating his emotion. A culmination of these difficulties contributed the unwise decision to conduct himself in an indecent way in public as set out in the police facts. We accept his evidence in this regard, despite a robust cross-examination.
The applicant's wife gave evidence and was cross-examined. She provides an emotional plea concerning the love she has for her husband and for her grandchildren. The applicant's wife holds no concern whatsoever in relation to any risk that her husband has in relation to children generally and, more relevantly, her grandchildren. We accept the applicant's wife is a reliable and truthful witness. Her evidence provides positive factors which we have taken into consideration in respect of this application.
We have considered the respondent's submissions which neither opposes nor supports the application.
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. The evidence establishes that the applicant has discharged the onus of proof as set out in 28(7) 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 his wife which is set out above. We have considered the police facts which relate to the disqualifying offence. The applicant pleaded guilty to those facts. In having this information and other before them, we find 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. We have considered the respondent's submissions which also support this finding.
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. We find that the applicant being able to be a primary full time carer for his two grandchildren is certainly in the public interest. The respondent's submissions support this finding.
The applicant should receive a Working with Children Check clearance. 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 Child Protection (Working with Children ) Act 2012 (NSW) in respect of the offence of committing an act of indecency with a person above the age of 16 under s 61N(2) of the Crimes Act 1900 entered on 7 April 2005 at Liverpool Local Court. 2. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) dated 16 April 2020 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 July 2020

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

Child Protection (Prohibited Employment) Act 1998(NSW)

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

Crimes (Sentencing and Procedure) Act 1999(NSW)

ecretary of the Department of Justice [2013] VSC 267 Category: Principal judgment Parties: EHC (Applicant)

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