ENH v Children's Guardian

ENH v Children's Guardian - [2021] NSWCATAD 203 - NSWCATAD 2021 case summary — Zoe

[3]

The statutory scheme

The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act: s 4 of the Act.
Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.
The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1) (b) of the Act). A child related role is set out in s 6(3) of the Act. It is not disputed that the role that the applicant proposes to perform is child related work.
Section 18 of the Act provides: 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.
There is no dispute the Tribunal has jurisdiction to hear and determine the applicant's application: see section 28 of the Child Protection (Working with Children) Act 2012, section 30 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decisions Review Act 1997.
The Children's Guardian must refuse to grant a working with children check clearance if the applicant is a "disqualified person" under s 18 (1) of the Act. A person will be considered a disqualified person for the purpose of the Act where they have been convicted of an offence specified in Schedule 2 to the Act if that offence was committed as an adult.
The disqualifying offence is identified at s 1(1)(z) of Schedule 2 to the Act, being an offence under a law of another State that, if committed in New South Wales, would constitute an offence under cl 1 of Schedule 2 to the Act.
It is conceded by the parties that although ENH's conviction is recorded as spent that that does not prevent a finding that he was convicted of the disqualifying offence for the purpose of section 18(1) of the Act. Section 5 (1) of the Act defines conviction to include a finding that the charge for an offence is proven or that a person is guilty of an offence, even though the court does not proceed to a conviction. The fact that ENH entered a plea of not guilty and proceeded to trial where he was found guilty of the offence of indecent assault, brings his conduct within the scope of the Act.
When determining an application under s 28(1) of the Act, the Tribunal is to have regard to the following matters which are set out in s 30(1) of the Act: "(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 criminal history and the conduct of the person since the matters 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."
Further, pursuant to s 30(1A) of the Child Protection (Working with Children) Act, the Tribunal must be satisfied of certain matters before making an order which has the effect of enabling a person to work with children. Section 30(1A) provides: "(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."

[16]

Would a reasonable person allow his or her child to have direct, unsupervised contact with ENH whilst he is engaged in child-related work? Is it in the public interest to make the orders sought by the applicant? (s 30(1) A)

Section 30 (1) (A) of the Child Protection (Working with Children) Act 2012 applies to this application. That section provides that the Tribunal may not make an order which has the effect of allowing the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that : 1. 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 child-related work, and 2. it is in the public interest to make such an order In VQB v The Secretary to the Department of Justice [2013] VCAT 789 the Tribunal said this test requires: the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.
In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a "reasonable person" would need to know the applicant's criminal history being his conviction for the disqualifying offence. We are satisfied that a reasonable person would have regard to all of the relevant facts before the Tribunal and the fact it is nearly 14 years since the disqualifying offence was committed by the applicant and that he has had an unblemished record both before and since then. The reasonable person would have regard to his stable marriage and employment history and the report of Dr Furst that the applicant's risk of recidivism is at the very low end of the range.
Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with ENH whilst he is engaged in child-related work.
The Tribunal must also be satisfied of the second part of the test in s 30 (1) (A) that the order is in the public interest.
The Tribunal must consider the public interest in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.
The public interest test requires the Tribunal, in the context of the paramount consideration in s 4 of the Act (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant: Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255 and CYY v Children's Guardian (No 2) [2017] NSW NSWCATAD 262
The applicant has committed one serious offence. He now wishes to assist his wife in the care of their grandchild who has been placed in his wife's care by DCJ and it is for this purpose he seeks an enabling order so that he can obtain a working with children check. It is not in the public interest that the Act operate where a person does not pose a risk to children, to preclude that person from working or volunteering with children. Having regard to the available evidence and our findings that the applicant does not pose a real and appreciable risk to the safety of children, it is in the public interest to make the orders sought by the applicant.
In summary, we are satisfied that the applicant has rebutted the presumption that he poses a risk to the safety of children. We have also decided 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 child-related work, and that it is in the public interest to make an enabling order.

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Judgment (19 paragraphs)

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