FKI v Children's Guardian

The Hearing

1. The parties filed written submissions supporting the Tribunal determining the matter on the papers without the need for a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 ('CAT Act'). We are satisfied that we could dispense with the hearing and order accordingly.

The Evidence

1. The applicant's evidence consists of:

• Application filed 22 June 2022 and annexed documents;
• Reference dated 19 July 2022 and 18 July 2022.

1. The evidence of the respondent included:

• Bundle filed: 28 July 2022; and

1. The Tribunal received and was assisted by written submissions from the respondent. The applicant was not required for cross-examination.

Legislative Provisions

1. 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 ss 3, 28 (1) of the Act.
2. 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 s 4 of the Act.
3. There is no relevant definition of "child abuse" contained in the Act.
4. 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 s 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"

1. 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."
2. The disqualifying offence, indecent assault pursuant to s 61L Crimes Act 1900 (NSW) with which the applicant was charged and 'convicted' is one which falls within Schedule 2 cl.1(1)(b) of the Act. Therefore, the applicant is treated as a "disqualified person". By reason of s 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.
3. An enabling order is sought by the applicant pursuant to s 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

(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."

1. The respondent is a party to the proceedings pursuant to s 28 (4) of the Act.

Standard of Proof

1. It is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children (s 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 s 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

1. In making a determination under s 28 of the Act, the Tribunal must consider the matters under s 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,

(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

1. The Tribunal is to determine whether the applicant has discharged the onus identified in s 28(7) of the Act and whether there is sufficient evidence to rebut the presumption that he poses a risk to the safety of children: s 28(7) of the Act; BKE v Office of the Children's Guardian [2015] NSWSC 523, at [25]. The Tribunal is to 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 will include the evidence provided by each party.
2. 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].
3. 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 s 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.

1. More 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.
2. 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."
3. 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.
4. The jurisdiction of the Tribunal under s 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

1. 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.
2. 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 s 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

1. The applicant's disqualifying conduct cannot be condoned. It is a serious offence which carries a maximum term of imprisonment of 5 years. However, in his favour it lies at the lower end of the scale of seriousness of indecent assaults. The offence did not involve a child and it occurred during a period when the applicant was intoxicated. The Local Court imposed a fine of $100 which, reflects the lower level of seriousness of his offending.
2. The other offences committed by the applicant on 6 March 1995 are also at the lower end of the range of seriousness.

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

1. The disqualifying offence occurred more than twenty-seven years ago. The applicant was an alcoholic at the time of his offending and has been sober since 4 December 1999. He continues to attend and participate in the alcoholic anonymous program which he has done for over 20 years.
2. The applicant says he has graduated from the William Booth Institute (a substance abuse program run by the Salvation Army) and has chaired over 550 alcohol anonymous meetings. There is no evidence to the contrary.

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

1. The applicant was 35 years of age 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

1. The victim was a woman and not a child. Her age is unknown.

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

1. The difference in age between the victim and the applicant is not known. It appears that the applicant and the victim were strangers.

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

1. The victim was not a child.

The person's present age

1. The applicant is 63 years of age.

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

1. The Applicant's criminal history includes: 1. a number of convictions for break-and-enter-related offences in 1982, and in 1997 convictions for offensive language and resisting police, and separately high range drink driving. It appears that these offences were on the lower end of seriousness: the Applicant was sentenced to 3 years probation, and $1250 restitution in relation to his 1982 convictions, and to a total penalty of $1400 and 18 months disqualification for his separate 1997 convictions. 2. An Apprehended Violence Order ('AVO") was made against the Applicant in 1994, which was in force for 12 months. A police Event Report close in time to the making of the AVO suggests that it was likely related to an incident in which it was alleged that the Applicant punched another man in the face.
2. The Applicant's Criminal History Report indicates that he has not been charged with any further offences of any kind since 1997. The Respondent submitted that the Applicant's criminal history, while not insignificant, is limited to offences in which the Applicant's alcohol consumption is likely to have been a factor and which took place at least 25 years ago. We accept this submission.

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

1. The applicant has not committed any criminal offences since 1997, his disqualifying offence was committed in 1995 when he was relatively young, and he has no adverse records of a sexual or violent nature prior to, or since that time. The Respondent submits that there is no reason to believe that the Applicant would repeat the disqualifying offence.
2. We accept that the likelihood of him re-offending is low due to the time which has elapsed, he has not further offended since 1997.
3. We conclude that the likelihood of repetition concerning the applicant is low.

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

1. 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

1. The applicant submitted that he requires his WWCCC for employment in a school. He is supported in his search for education by an employment agency which organisation assisted him in this application.
2. We accept the applicant's evidence that he is a recovering alcoholic and that he has been abstinent of alcohol for a long period of time. We have also considered three references which attest to the applicant's good character and contribution to the community.
3. These matters weigh in favour of the applicant.

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

1. No information was obtained in accordance with the section.

Any other matters that the Children's Guardian considers necessary

1. The Department of Communities and Justice does not hold information concerning child related matters involving the applicant.
2. The Children's Guardian supports the application.

Consideration of the s 30 matters

1. We find that the applicant has displaced the presumption that he does pose a real and appreciable risk to the safety of children. This is because: 1. the disqualifying offence occurred twenty-eight years ago; 2. the disqualifying offence did not involve a child and is on the lower end of the seriousness scale for offences of that kind; 3. the applicant has not offended or been involved adversely with the law since 1997; 4. The applicant has expressed remorse with regards to the disqualifying offence; 5. There is otherwise no evidence to suggest that the applicant has behaved inappropriately towards children; and 6. The likelihood of the applicant reoffending is extremely low.

Consideration of the section 30(1A) matters

1. The Tribunal may not make an order which has the effect of enabling the applicant to work with children unless the Tribunal is satisfied that a reasonable person would allow their child to have direct, unsupervised contact with the applicant. The reasonable person test is modelled on the Working with Children Act 1995 (Vic) ("the Victorian Act").
2. The VQB v The Secretary to the Department of Justice (Review and Regulation), [2013] VCAT 789 at [36] (Macnamara J); affirmed as the correct approach when considering s 30(1A)(a) of the Act in Office of the Children's Guardian v EQE [2022] NSWSC 871, [52]; Judge Macnamara of the Victorian Civil and Administrative Tribunal said that: "…[the 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 a 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."
3. In CSW v Children's Guardian [2017] NSWCATAD 326 at [136]-[137] Senior Member McAteer said: "In our view a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. As in the Victorian cases in our view a reasonable person would not approach the matter with a closed mind but apply an objective test in consideration of all of the material. Additionally, in our view the reasonable person would approach the matter in the same manner as I have approached the section 30(1) issues and risk. Particular regard would be had to the unchallenged expert evidence (notwithstanding the respondent's submissions as to weight). A reasonable person whilst approaching the manner with some caution would in our view find that any risk was insufficient to cause them to have concerns about access to their child in the terms set out in section 30(1A).
4. The respondent submits that the Tribunal would be satisfied that the reasonable person would allow the applicant to have direct contact with a child that was not directly supervises by another person while the applicant was engaged in child related work. The reasonable person would form this view based on the knowledge of the nature of the disqualifying offence, the remainder of the applicants history and the significant passage of time that has passed since 1995.
5. We accept the submissions of the respondent and find accordingly.
6. Section 30(1A)(b) of the Act prevents the Tribunal from granting the applicant a WWCCC unless it is in the public interest to make the order. The public interest test is also based on the Victorian Act.
7. There is no definition of public interest under the Act or at law. In Hogan v Hinch [2011] HCA 4 at [31] French CJ of the High Court of Australia said of public interest: "When used in statute, the term derives its contents from 'the subject matter and the scope and purpose of the enactment in which it appears. The court is not free to apply idiosyncratic notions of public interest'".
8. Sections 3 and 4 of the Act set out the scope and purpose of the Act being the protection of children by ensuring that those who engage in child-related employment have a Clearance.
9. In ZZ v Secretary, Department of Justice, [2013] VSC 267 at [202] Bell J of the Victorian Supreme Court observed that: "While decisions of the Tribunal have correctly emphasised that the main purpose of the Working with Children Act is the protection of children from harm, they have also acknowledged the relevance and importance of rehabilitating offenders, their right to work and other similar situations."
10. The application of the public interest test involves a balance of competing interests being the protection of children balanced against the right of the individual to be employed in and participate in the community. The protection of children is the paramount consideration.
11. We find when balancing the public interest and the applicant's interests of employment, the applicant satisfies the public interest test as there is no evidence to suggest that it would be against the public interest to grant him a clearance. On the contrary, where the applicant is able to engage in paid employment within the community, the public interest is benefited by such employment.

Conclusion

1. We accept the applicant has provided a truthful and full explanation of his offending.
2. We have considered and accept the respondent's submissions which support a favourable finding by the Tribunal that the applicant has displaced the presumption that he does pose a real and appreciable risk to the safety of children and should be granted a WWCCC.
3. 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.
4. 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 us, we conclude 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.
5. As set out above, we have found that in having all of the above and other information before them, 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.
6. We have also found nothing contrary to the notion of the public interest in granting to the applicant a WWCCC.
7. The applicant should receive a Working with Children Check clearance.

The order of the Tribunal is that: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the requirement of a hearing is dispensed with. The matter is to be determined on the papers. 2. 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 indecent assault under s 61L of the Crimes Act 1900 entered on 27 March 1995 at the Local Court of New South Wales. 3. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) dated 22 June 2022 is granted. 4. The Children's Guardian is to grant a working with children check clearance to the applicant pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW) forthwith.

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: 18 October 2022