FKI v Children's Guardian

FKI v Children's Guardian - [2022] NSWCATAD 335 - NSWCATAD 2022 case summary — Zoe

Introduction

This is an application filed on 22 June 2022 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 'FKI' 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").
The applicant is a sixty-three year old man who is a resident of New South Wales.
On 27 March 1995, the applicant was convicted with one count of indecent assault pursuant to s. 61L of the Crimes Act 1900 ("Crimes Act") and one count of assault police, two counts of resist arrest, and one count of malicious property damage. He pleaded guilty to each offence. The applicant was sentenced to a fine of $100 plus court costs on each charge and ordered to pay compensation for the damage to a glass door in the sum of $251.
The circumstances relating to the conviction which deems the applicant to be a Disqualified Person occurred when he was 35 years old and are as follows. "At about 8.45pm on Monday the 6th March, 1995 two female customers entered [a] Restaurant, [in New South Wales] for the purpose of having a meal. Upon entering the restaurant they were confronted by the defendant who made rude comments and gestures towards the women. The two women were then seated inside the restaurant area and after a short time became tired of the comments and gestures being made by the defendant. One of the women then went to use the public phone situated inside the foyer area and whilst calling the police was touched on the bottom by the defendant. [....] At the time of the arrest the defendant appeared to be well affected by intoxicating liquor."
The offence of indecent assault 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 30 June 2022, 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 13 May 2022, the applicant was advised that he was a 'disqualified person' due to the offences with which he was convicted of in 1996.
On 30 June 2022, the Tribunal made an order extending the time for the applicant to file his application to 22 August 2022. This is because his application was not filed within 28 days from the date he received notice that he was a disqualified person.
In support of an order under section 28 (1) of the Act the applicant contends that he requires a WWCCC to undertake work in the kitchen of a school.
The respondent supports the applicant being declared 'not to be 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 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.
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 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).

[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.

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.
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.
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].

[52]

Consideration of the section 30(1A) matters

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").
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."
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).
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.
We accept the submissions of the respondent and find accordingly.
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.
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'".
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.
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."
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.
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.

At a glance

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Cases Cited (26)