FBL v Children's Guardian - [2022] NSWCATAD 62 - NSWCATAD 2022 case summary — Zoe

NSWNSWCATAD

FBL v Children's Guardian

[2022] NSWCATAD 62

NCAT Administrative and Equal Opportunity|2022-02-23|Before: Hodgson J

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2022-02-23

Before

Hodgson J

Catchwords

166 CLR 69 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
(2006) 231 CLR 1 R v Commission for Children and Young People [2002] NSWIRComm 101 R v War Pensions Entitlement Appeal Tribunal

Source

Original judgment source is linked above.

Catchwords

166 CLR 69 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53(2006) 231 CLR 1 R v Commission for Children and Young People [2002] NSWIRComm 101 R v War Pensions Entitlement Appeal Tribunal

Judgment (54 paragraphs)

[1]

War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30 SL v Secretary, Department 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 Texts Cited: none Category: Principal judgment Parties: FBL (Applicant) Children's Guardian (Respondent) Representation: Solicitors: Applicant (Self-Represented) Crown Solicitor (Respondent) File Number(s): 2021/00216188 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.

[2]

Introduction

This is an application filed on 29 July 2021 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 'FBL' 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 September 1984, the applicant was charged with murder (7 counts), in the alternative manslaughter and affray. On 12 June 1987, the applicant was convicted of seven counts of manslaughter and one count of affray. He was sentenced to penal servitude of 12 years for each count of manslaughter, and 6 years imprisonment for the offence of affray, with a non-parole period of 7 years.
At the time of determining this matter the applicant was 63 years of age. The circumstances relating to the conviction which deems the applicant to be a Disqualified Person occurred when the applicant was 26 years old and are as follows.
On 2 September 1984, the Bandido Motorcycle Club and rival Comanchero Motorcycle Club were involved in a violent affray at the Viking Tavern, which became known as the 'Milperra Massacre'. There were seven fatalities in total: four Comancheros, two Bandidos and a 15 year-old girl.
The applicant did not take part in the affray. However, he drove two members of the Bandidos to the Viking Tavern, including one who was armed with a shotgun. At the time, the applicant was a full member of the Bandido Motorcycle Club.
There were thirty-one co-accused, including the applicant, each of whom was charged with seven counts of murder and one of affray under the doctrine of common purpose. Whilst the applicant did not make any violent contribution to the fight, he was found to have made himself a party to a certain level of violence by having driven two armed men to the scene.
On 12 June 1987, the applicant was convicted of seven counts of manslaughter and one count of affray. He was sentenced in accordance with the matters set out in paragraph [2] above.
Of the thirty-one co-accused, nine individuals were convicted as charged, twenty-one (including the applicant) were found not guilty of murder but guilty of manslaughter, and one was convicted.
The offence of manslaughter of a child is one which is specified within Schedule 2 of the Act which deems the applicant to be a Disqualified Person and a person who is unable to obtain a WWCCC.
On 26 August 2021, an order was 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.
An application was made by the applicant to the Children's Guardian for a WWCCC. On 25 October 2018, the applicant was advised that he was a 'disqualified person' due to the offences with which he was convicted of in 1984.
In support of an order under section 28 (1) of the Act the applicant told the Tribunal that his partner has the daily custody and care of a child aged 16 years under a foster care arrangement and he requires a WWCCC in order to be part of that household.
The respondent consents to the applicant being declared not as a disqualified person for the purposes of the Act in respect of the charges. The respondent supports the applicant being granted a WWCCC.

[32]

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).

[36]

[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.

Most recently, the New South Wales Court of Appeal in CXZ v Children's Guardian [2020] NSWCA 338 has affirmed the decision of Beech-Jones J in BKE v Office of the Children's Guardian [2015] NSWSC 523 at [33] concerning the method to be used in assessing risk.
The Court of Appeal in CXZ describes the assessment of risk as being a single process, instead of what was incorrectly described previously as, a mandatory three-step process (see CXZ at [55]). Simpson JA, describes that process in CXZ at [57], as: "…The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well-founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children."
Where there are multiple considerations, the Tribunal is to evaluate the accumulated weight of the allegations in terms of risk. This will include consideration of factors including the seriousness of the allegations, the strength of any evidentiary support, and the relevance of the conduct to the risk to the safety of children.
When determining an application for administrative review, s 63 of the Administrative Decisions Review Act 1997 is apposite: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law.
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].

[52]

Consideration of the facts and determination

At the time in which the disqualifying offences occurred the applicant was 26 years of age. He is now approximately 63 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 the applicant has provided a truthful and full explanation of his offending. We accept evidence concerning the circumstances in which the offending conduct occurred, particularly, the applicant arrived after the event and did not participate in the violence.
We have considered and accept the respondent's submissions which support a favourable finding by the tribunal that the applicant does not pose a real and appreciable risk to the safety of children.
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 partner [XX] which is set out above. We have considered the facts which relate to the disqualifying offence. In having this and other information 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.
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.

FBL v Children's Guardian

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Judgment (54 paragraphs)

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Legislation Cited (10)

Cases Cited (22)