1. The Interim Notice was issued on 22 December 2011. FLL made no submissions and a Negative Notice was issued on 25 January 2012. FLL had until (approximately) 28 February 2012 to make her application for review to the tribunal. She did not do so until 7 June 2012. Accordingly, the application was several months out of time.

1. The delay is not of itself significant. There is no suggestion that because of the passage of time it will be difficult for the Secretary to obtain witness statements or other evidence because of the delay.
2. Nevertheless, legislative timeframes exist for a reason and should not be disregarded. It is necessary therefore to turn to a consideration of the reasons given by FLL for the delay.

The explanation for the delay and the reasons advanced to justify delay being excused

1. FLL gave a range of reasons for not lodging her application within time. They included:
   • (a) She did not know her rights (to make the application for review).
   • (b) She has had multiple medical appointments in the last 6 months.
   • (c) She was heavily involved in another court case.
   • (d) She was undertaking studies.
2. I will address each of the reasons given by her.

Did FLL know about her right to apply for a review?

1. The Secretary submits that FLL was told of her right of review by letter and by telephone.
2. It is not completely clear whether FLL received the correspondence from the Secretary which advised her amongst other things of her rights of review, although it is clear that it was sent.
3. FLL does not however recall receiving it and gave evidence that she was homeless around the time of it being sent. It is possible that she did not receive it and/or did not open it if she did receive it.
4. Although I accept that FLL received a telephone call from the Working with Children Unit and that the officer told FLL about her review rights, I also accept that FLL still did not comprehend the need to make the application for review within 28 days. FLL recalled the telephone conversation but from her evidence, I accept that she fixated on the officer's words advising her that she could not apply to work with children for a further 5 years. She gave evidence that she was very concerned about this because she had just commenced a Certificate III in Child Studies.
5. FLL is a self-represented litigant. She is not sophisticated. As she gave her evidence, it became apparent that she did not immediately comprehend the significance of documents shown to her or submissions made.

1. I accept FLL is not a well person, physically or mentally, and that her health issues were troubling her during the first half of the year. The materials before me referred to the fact that she suffers from Addison's disease. She also gave evidence that she suffers from diabetes and has other chronic pain issues.
2. The Secretary emphasises that FLL's illness did not provide any reason for failing to lodge the application.
3. I accept FLL's evidence that health issues were, during the relevant time, at the forefront of her mind and that she had multiple medical appointments to attend.

1. I accept that during the first half of 2012 FLL was involved in very stressful proceedings in which she was opposing orders sought by the Secretary to extend Custody to the Secretary Orders and a Guardianship to Secretary Order pertaining to her 9 year old son.
2. The Secretary submits that the Court case involving FLL's son did not extend over the full time during which she could have made her application for review to the Tribunal.
3. Although that hearing took place in June 2012, I accept that the preparation for the hearing, given its importance to her, was all-consuming.

1. FLL stated that she is undertaking a Certificate III in Child Studies and that this has taken much of her time and attention.
2. The Secretary submits that study is a normal part of everyday existence and provides no reason for a delay in filing the application for review.
3. I agree that of itself the studies being undertaken by FLL would not justify the delay. Nevertheless they provide further substance when taken as a whole to the reasons provided by FLL for the delay.

1. On balance I am satisfied that FLL can demonstrate an acceptable explanation for the delay in making her application to the tribunal.
2. Whilst any one of the explanations by themselves may not have been enough to warrant such a finding, I am satisfied that the combination of factors do lead to that conclusion.
3. I was satisfied that FLL was able to explain the reasons for the delay as best she could. There was no tactical advantage to be achieved by her in delaying her application. I accept the reasons given by FLL.
4. I turn then to a consideration of whether other considerations would sway the balance against extending time.

Whether it is fair and equitable in the circumstances to extend time - including whether there is any injustice or prejudice to either party if the extension is or is not granted. The applicant's actions - in particular, whether the applicant has continued to make the decision-maker aware that she contests the finality of the decision as distinct from allowing the decision-maker to believe that the matter was finally concluded;

1. It was not suggested by the Secretary that there is any real prejudice to the Secretary if an extension of time is granted. The Secretary emphasises nevertheless that it is desirable for a decision-maker to have finality of proceedings and that time limits exist in order for there to be finality.
2. FLL wishes to work in childcare, which she states has been a lifelong objective of hers.
3. FLL emphasised that she is undertaking a Certificate III in Child Studies. She is unable to complete her work placement. She will be unable to work in the child care industry at all with a Negative Notice.

1. There would be no prejudice to the Secretary if I were to extend time.
2. Whilst a decision-maker should generally be able to act with confidence that a matter is finalised once the statutory period for applying has passed, or at least within a reasonable time thereafter and the resources of the Department of Justice are finite, in my view prejudice to the Secretary is not the dominant consideration in this case.
3. I am mindful of the fact that FLL did nothing to let the Secretary know that she would be making an application for review. However, in circumstances where the delay is not unduly lengthy and FLL is able to give a reasonable explanation for the delay I consider that it would be, in broad terms, fair and equitable to grant the extension of time.

The merits of the substantial application - including a consideration of whether the prospects of success are realistic

1. If FLL does not receive an Assessment Notice, she will not be able to work with children. Even with a hearing on the merits, there is no guarantee that she will be able to work with children.
2. The Secretary contends that FLL's desire to work in childcare is unrealistic as are her prospects of satisfying the tribunal at any substantive hearing that she should be issued with an Assessment Notice.
3. It is a very significant step to deny a party the opportunity to be heard on the substantive merits of his or her case when there was a reasonable excuse for the delay, there is no prejudice to other parties and the application is not filed grossly or significantly out of time.
4. In these circumstances, I do not consider that section 126 of the VCAT Act should be utilised to predetermine a matter unless it is clear on any analysis of the material that there is no reasonable prospect of success.
5. I am mindful of the fact that section 75 of the VCAT Act makes specific provision for the dismissal of unjustified proceedings and the tribunal exercises great caution in so doing. A similar approach should be taken under section 126 of the VCAT Act.
6. Section 12(2) of the Working with Children Act 2005 requires that the Secretary must refuse to give an Assessment Notice on a category 1 application and section 17(3) of the Act requires that the Secretary give a Negative Notice on an application, which is a category 1 application.
7. The application is a Category 1 application.
8. Section 26(1) of the Act enables a person who is refused an Assessment Notice to apply to VCAT for an order directing the Secretary to issue an Assessment Notice.
9. VCAT can only direct the Secretary to give an Assessment Notice if satisfied that doing so would not pose an unjustifiable risk to the safety of children having regard to criteria set out in section 26(2) and that in all the circumstances it is in the public interest to do so.
10. I was invited by the Secretary to step through the section 26(2) criteria as it applied to FLL in order to assess whether her prospects of success at a substantive hearing were realistic. Whilst in some cases that may be an appropriate method by which to draw conclusions it will not always be. I am not prepared to do so in this case. I make the following broad comments.
11. The offending in this case is very serious. On several occasions FLL together with a co-accused made plaster casts of FLL's daughter's genital and breast regions. They hoped to on-sell the plaster casts. On any interpretation of the offending, it is extremely serious - the victim was young. The breach of trust is particularly significant given that the victim was FLL's daughter.
12. There is no doubt, based on the circumstances of these extremely serious offences, that FLL will have very significant challenges ahead of her if she is to persuade the tribunal that she should be granted an Assessment Notice. However all category 1 offences are serious and all start from this premise.
13. In addition to FLL's offending, FLL has had dealings with the Department of Human Services and the Children's Court of Victoria in relation to her own children. She currently does not have custody of her youngest son. The current status of her 2 older children is less clear but there is no doubt that they have also been the subject of Human Services intervention over the years. FLL provided me with the reasons for decision given in the Magistrates' Court proceedings relating to her son conducted in June 2012. The learned magistrate extended the Guardianship to Secretary Order for 24 months and made concerning findings surrounding the protective issues which exist.
14. In these circumstances FLL's prospects of success may be rendered even more tenuous, almost to the point of being unrealistic.
15. Nevertheless, there are factors, which FLL will, if given the opportunity, invite the tribunal to take into consideration at a substantive hearing.
16. FLL states that the circumstances giving rise to the commission of the category 1 offences will never happen again.
17. FLL stated that that she was under significant duress at the time of the commission of the offences and was being threatened by others. At a substantive hearing, FLL may be able to call evidence in relation to her own vulnerability to exploitation, which may cast further light on the offending.
18. The offences took place between 1 July 2000 and 31 May 2001. It is now over 10 years since the commission of the offences. That is a reasonably significant period during which time there has been no "like" offending. (There have however been offences of shop stealing as recently as 2011.)
19. FLL has worked in a variety of non-skilled jobs.
20. She has 3 children and commenced her Childcare studies this year.
21. There were no psychological or psychiatric reports yet available upon which I could assess the risk posed by FLL to children. There were also no character testimonials. It may be that at a substantive hearing FLL will be able to obtain reports and positive testimonials to lend support to her application. It is premature to make a finding that she could not do so. She has not yet commenced her preparation for a substantive hearing.
22. It is also relevant that FLL wishes to engage in child-related work during her studies. Whether that objective is a realistic one will become clearer when the full evidence is available.

1. FLL bears the onus of proving the extension of time should be granted.
2. It has been frequently observed that the power under section 126 is a very wide one and that its purpose is to enable matters to be to be determined rather than avoided on their real and substantial merits and not based on technical points or slip-ups.
3. Timelines are important but they cannot be at the exclusion of justice.
4. The implications for FLL of not having an Assessment Notice are significant. She will not be able to complete her course and she will not be able to apply for an Assessment Notice for a further 5 years. She is entitled to have her case heard and determined on the merits.
5. The weight of the evidence, which has been put before me, does not flow in FLL's favour. She will have significant hurdles to overcome to persuade the tribunal that she should be given a working with children assessment notice.
6. FLL will need to call significant material in support of her application. She will need evidence from professional witnesses, which support the application, as well as character evidence.
7. FLL's desire to work with children although evident may be misconceived. I have reservations that she will be able to produce sufficient evidence for a positive finding, but she might.
8. The relevant offences occurred some time ago. Whilst it is tempting to place great weight on the fact that she does not have current care of her own child, the issues surrounding that decision have not been fully canvassed before the tribunal and may have no real bearing on the risk posed by FLL to children. I note for example that FLL's son has apparently stated that although he loves his mother he does not wish to reside with her at the current time. That of itself in no way leads to the conclusion that FLL poses a risk to children.
9. The applicant's application for an extension of time in which to seek a review of the respondent's decision dated 25 January 2012 is granted and the proceeding will be listed for a Directions Hearing at 9.30am on 6 February 2013 at 55 King Street, Melbourne.
10. Leave is granted to FLL to attend the Directions Hearing by telephone.

[1] See Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3FCR 344 per Wilcox J