FMG v Children's Guardian

FMG v Children's Guardian - [2025] NSWCATAD 37 - NSWCATAD 2023 case summary — Zoe

[6]

Relevant legislation and the role of the Tribunal

The object of the Child Protection (Working with Children) Act 2012 is stated in section 3 as: …to protect children - (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances.
The paramount consideration in the operation of the Act is "The safety, welfare and well-being of children and, in particular, protecting them from child abuse": section 4 of the Child Protection (Working with Children) Act 2012.
The Tribunal's jurisdiction under section 27(1) of the Act to review a decision of the Children's Guardian to refuse a Working with Children Check Clearance is exercised under the Administrative Decisions Review Act 1997. When conducting an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: refer to section 63 of the Administrative Decisions Review Act 1997. The Tribunal is not confined to only considering the material that was before the Children's Guardian at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
The Tribunal is to approach the issue of whether the Working with Children Check should be granted to FMG afresh, without any presumption as to the correctness of the decision under review: for example, see McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] VR 521 at [530].
The key issue for consideration in the review is whether, on the evidence, the Tribunal is satisfied that FMG poses a risk to the safety of children. If the Tribunal is so satisfied, then it should affirm the decision to refuse the Working with Children Check Clearance.
The concept of "risk" to the safety of children has been considered by the Supreme Court in Commission for Children and Young People v V [2002] NSWSC 949 where the Court stated that what one is looking for is whether "in all the circumstances there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child" and that this would exclude "fanciful or theoretical risks": at [42].
In carrying out the review, the Tribunal must have regard to the mandatory considerations set out in section 30 of the Act, which are: (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.
Section 30(1A) of the Act states that the Tribunal cannot make an order which has the effect of enabling an Applicant to work with children 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.

[18]

28 November 2015 incident, AVO and engagement with psychologist

Mr Chiam asked FMG about charges that he assaulted his de facto partner.
FMG was charged with two counts of assault occasioning actual bodily harm (dv) arising from an incident on 28 November 2015. The matter went to trial in the Local Court and on 10 March 2016 and the Magistrate found the offence proved.
Police alleged that FMG grabbed his partner's neck and held her down with force. Reference was made to red marks being on FMG's partner's neck and her not being able to breathe properly for about four or five seconds. The Magistrate concluded that FMG applied pressure to his partner's throat by grabbing her around the throat and applying the pressure of his fingers to the front of her throat area. The incident occurred at the unit where FMG and his son were living.
FMG's explanation in the trial for the red marks was that he had bear hugged his partner and took her to the ground and his arm may have slipped up to the neck area.
FMG said that his partner decided that she did not wish to give evidence in the trial but was forced to do so and that the whole process was "one-sided".
The case was listed for sentencing on 21 April 2016. FMG agreed that he first saw Mr Ebert, registered psychologist, on 6 April 2016. Mr Chiam asked FMG whether the reason he sought psychological help was to help his court case. This was referred to in a referral letter from FMG's GP to Mr Ebert, dated 6 April 2016, where the doctor said "it was recommended that [FMG] seek psychological help to help his court case".
FMG said that he was travelling between 2016 and 2018 and that he returned to Australia in 2018. He agreed that he had not seen another psychologist in 2017 or 2018 and that he did not see any other psychologist other than Mr Ebert from 2018 to 2022. Mr Ebert completed a 'Letter for Professional Referee' form, dated 1 March 2022, in support of FMG's application for a Clearance. He saw Mr Ebert again in 2023.
Mr Chiam suggested to FMG that the only reason he had seen Mr Ebert was because he thought Mr Ebert could give him helpful letters for his legal proceedings. FMG denied this.
FMG said he realised that he needed to seek help. FMG said he was the one attacked by his de facto. FMG said getting help for his court case was not the reason. He also explained one of the reasons he spoke to Mr Ebert was because his partner's daughter had suicided.

[19]

21 March 2018 incident

FMG was committed for trial for the charge of aggravated break and enter and commit serious indictable offence (intimidation) - people there. The matter was heard in the District Court and the jury found FMG not guilty.
The charge arose from an incident on 21 March 2018. FMG is alleged to have committed a break and enter into the house of his ex-wife and also a serious indictable offence in the house, that is, an offence of intimidation in circumstances of aggravation because FMG was alleged to have known there were persons present in the house.
The Crown alleged that FMG has knocked on his ex-wife's front door and when there was no answer, he entered the house through the garage and a sliding door and went upstairs and banged on his daughter's bedroom door. FMG's account was that he did not enter the house at all, nor did he bang on the bedroom door inside.
FMG gave evidence in this own trial. During the course of that evidence he was asked about the events of 21 March 2018. His evidence was that he had a glass of red wine with his meal at a bowling club that evening.
Mr Chiam suggested to FMG this was contrary to FMG's evidence (refer to [85]) in this proceeding that he stopped consuming alcohol in mid-2017 and he not drink other than some wine at weddings and birthdays. FMG said that this was a one-off as he had just returned to the country. He said that he did not remember any time where he had consumed alcohol at home in that period.
Mr Chiam also asked FMG about his ex-wife's withdrawal of her statement. FMG's ex-wife gave evidence in the Court that she had falsely claimed that she had not withdrawn her statement under duress. FMG denied ever suggesting to his ex-wife that she withdraw her evidence in a court case or asked her to drop charges or to withdraw her evidence against him.
FMG filed the transcript of the District Court judgement on costs. In summary, FMG was successful in getting a certificate under the Costs in Criminal Cases Act 1967 because the Court was satisfied that FMG's former wife lacked credit and was not telling the truth in part because of the lack of background noise in her 000 call.

[25]

Evidence of Mr Ebert, Registered Psychologist

Mr Ebert is a registered psychologist. He provided a letter, dated 2 August 2023, in these proceedings and also a professional reference to the Children's Guardian, dated 1 March 2022. Mr Ebert was also called to give oral evidence at the hearing.
Mr Ebert said FMG is very motivated to be a bus driver. He explained that employment can have positive effects on a person's self-esteem, confidence and resilience.
Mr Ebert saw FMG for five appointments in 2016 and then saw him again in 2023 for four appointments.
In a letter written on 11 April 2016 for FMG's criminal case, Mr Ebert described FMG as having symptoms of "depressed mood; sleep disturbance; stress and anxiety in the context of family, relationship and financial problems". Mr Ebert expressed the belief that FMG was capable of "gain[ing] insight and understanding of his behaviour in relation to the violence between him and his partner, and how to correct it" and that FMG "is able to implement strategies to manage his anger in an effective manner".
Mr Ebert said that he thought it unlikely that FMG would pose a risk to the safety of children on the basis of the information he has. He referred FMG to an anger management course at Relationships Australia but FMG had not attended at this stage but had made contact. He said he made the referral not out of concern that FMG had an anger management issue as at 2022, but rather to aid consolidation of the progress FMG had made. Mr Ebert said that FMG showed a lot of insight into his behaviour and was unlikely to be a risk. When asked what type of risk, Mr Ebert said of physical or verbal abuse. Ebert considered FMG to take responsibility for his behaviour.
Mr Ebert's letter dated 2 August 2023 was written for the purposes of these proceedings. He said FMG had a diagnosis of adjustment disorder with mixed depressed mood and anxiety. Mr Ebert provided FMG with Cognitive Behavioural Therapy which included "reframing unhelpful beliefs, anger management techniques, and developing assertiveness skills". He said that FMG "has implemented strategies to manage his anger in an effective manner". He expressed the view that FMG is unlikely to be a risk to the safety to children.
Under questioning, Mr Ebert agreed that there had been a gap between the appointments with FMG in 2016 and the first appointment on 2 August 2023. He said that he referred to his notes from the 2016 appointments and the update given by FMG on 2 August 2023 in order to write the 2 August 2023 letter. He acknowledged that the progress notes he took did not refer to FMG's use of alcohol. The GP letter referring FMG to Mr Ebert did refer to FMG as an "ex-drinker".
Mr Ebert agreed that his progress notes showed he knew about some but not all of the incidents and charges against FMG. Mr Chiam suggested that the ones Mr Ebert was not aware of included:

the 1998 case where the charges were proved about FMG striking his brother-in-law while he was on the ground
The 1999 charge of assaulting his then wife
2003 plea of guilty to hinder the police while intoxicated
2010 conviction hinder police in the execution of their duties
2011 charge of common assault towards his then 12 year old son
2008 charge of assaulting one of his daughters (note this charge was dismissed)

Mr Ebert conceded that knowing this further detail would have added to the clinical profile of FMG. He also conceded that he did not know FMG had a previous problem with alcohol. He said that information would have been helpful to know.

[45]

Other submissions

Mr Latham submitted that if FMG were to become a bus driver he would have direct contact with children but physical contact in that job would be unlikely as there is a cage around the driver on a bus. There would be limited face to face contact. He said that if FMG was granted a Clearance he would have a second check when he applies to be a bus driver and will need to show he is a fit and proper person.
Mr Latham said that all FMG's convictions apart from one are spent convictions. He also submitted that FMG's offending did not involve sexual violence and no children outside his family had been affected. He said that FMG drove taxis for 22 years but had nothing raised against him in respect of any passenger.
Mr Latham submitted that there was a public benefit if FMG was to engage in employment as a bus driver and not rely on the taxpayer. He also said that FMG is 57 years old and if there is a 5 year period before he can reapply for a Clearance he may never get work again.
Mr Chiam submitted that FMG had a serious criminal history involving violence. He also highlighted incidents in which a child was the victim of violence or present.
Mr Chiam said that it had been eight years since FMG's last conviction. He said that this gap is less significant given that the offending spanned a long period of time, from 1998 to 2015, some 17 years.
Mr Chiam submitted that the opinion of Mr Ebert was based on his limited observations of FMG. He had seen FMG six times as at August 2023 and five of those occasions were in 2016, the sixth occasion was in order to write the letter for these proceedings. Mr Chiam said that FMG had not effectively seen Mr Ebert for seven years, other than contact he had for the purposes of the 1 March 2022 Professional Reference to be given to the Children's Guardian and the 2 August 2023 letter prepared for these proceedings. He had not conduced a full consultation. He also did not base his opinion on a complete picture because he was not aware of FMG's drinking or the extent of his criminal history.
Mr Chiam touched on FMG's evidence about the records obtained from DCJ. FMG denied hitting his daughter at the football in 2015. He also denied grabbing his son by the shirt and threatening to smack him in the mouth in 2016 following an incident at a bus stop. Mr Chiam suggested that the Tribunal should not view these allegations as baseless and it is possible that the allegations are true, given the history of FMG's conduct.

[46]

Preliminary comments on determining risk to the safety of children

It is useful at this point to revisit the fact that what the Tribunal has to determine on administrative review is whether or not to affirm, vary or set aside the decision of the Children's Guardian made on 16 March 2023 to refuse FMG a Clearance (refer to section 27 of the Child Protection (Working with Children) Act 2012 and section 63 of the Administrative Decisions Review Act 1997). This in turn involves consideration of the question of whether we are satisfied that FMG poses a risk to the safety of children and must include consideration of the considerations set out in section 30(1) and (1A) of the Child Protection (Working with Children) Act 2012 which are set out at [17] and [18] above.
The Court of Appeal has set out how the Tribunal is to approach the process fact finding and reaching conclusions as to risk in these types of proceedings. The Court's decision in CXZ v Children's Guardian [2020] NSWCA 338 followed a series of cases which are relevant to how the Tribunal should go about assessing allegations: M v M (1988) 166 CLR 69; BKE v Office of Children's Guardian [2015] NSWSC 523; Office of the Children's Guardian v CFW [2016] NSWSC 1406 and Tilley v Children's Guardian [2017] NSWCA 174.
Allegations can fall into three categories as the Tribunal goes about the assessment of the evidence. The Tribunal might make a positive finding that some allegations are true. It might make findings that other allegations are not true. There is then another category of allegations that fall in between these two. These are allegations about which the Tribunal cannot be positively satisfied and are neither proved or disproved and remain and must be considered when determining the question of risk.
As Simpson AJA said in CXZ v Children's Guardian at [57] and [58]: 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. It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.

[47]

Positive factual findings

We are positively satisfied that on 6 October 1998 FMG punched his 17 year old brother-in-law twice when he was lying on the ground and that he struck his brother-in-law a third time when he was on the ground. We also find that FMG's actions left his brother-in-law with a chipped tooth and lumps on his head. We find that FMG's six year old daughter and nephew were present during this incident. We do not make any finding as to the age of the nephew.
The evidence supporting these findings is very strong, and were the subject of findings by a Local Court magistrate, following a criminal trial and to the criminal standard, that is, beyond reasonable doubt. On appeal the District Court found the offence proved. We had the benefit of the transcript of the trial of the Local Court.
The actions of FMG towards a 17 year old family member is not the only issue of concern, but also the fact that at least one other child present, a young child of six years old. In that respect, we agree with the observation made by Senior Member Anderson in CGP v Children's Guardian [2017] NSWCATAD 12 at [83]: The effect of violence on children is well-known and they do not have to be the subject of an assault in order to experience fear and for there to be an impact on their neuropsychological development.
We are positively satisfied that about two weeks prior to 18 July 2006 FMG threw a cup at his 15 year old daughter hitting her in the leg. We are satisfied that this allegation is in fact true on the basis as this was the most recent incident relied on in the application for the Telephone Interim Order and that ultimately a final AVO was made by the Local Court for a period of 12 months. Our finding is further strengthened by the acknowledgement FMG made about whether he threw the cup, under the protection of a section 128 Certificate, when he said: "I may have done that".
On 18 December 2011 FMG had an interaction with his son, whom the Local Court Magistrate described as his 13 year old son but we find was 12 years old, based on the date of birth FMG himself provided to the Children's Guardian in the document 'WWCC Submission' and as is suggested by the Respondent in written submissions.
We are positively satisfied that on that date FMG pushed his 12 year old son and held him by the neck using the hood of his hoodie jacket. The evidence for this finding is very strong given that the matter went to trial and the Magistrate was satisfied beyond reasonable doubt this was what occurred. We had the benefit of reading the transcript of the trial. An AVO was also issued for the protection of the older son. We find that other children were present during the incident, namely FMG's 11 year old son and his eight year old daughter.
We are positively satisfied that on 28 November 2015 FMG grabbed his partner's neck and held her down on a bed with force, leaving red markings on her neck. We are satisfied that FMG applied pressure to his partner's throat by grabbing her around the throat and applying the pressure of his fingers to the front of her throat area as was found by the Local Court Magistrate. We had the benefit of reading the Local Court judgment as well as the transcript of the trial. These findings were made to the criminal standard of proof. We also find that FMG's 16 year old son was on the premises when the assault occurred. This was not contradicted by FMG in any of the evidence filed and was referred to directly in both the trial transcript and also the Respondent's written submissions.

At a glance

Court

Decision date

Source

Judgment (71 paragraphs)

Parties

Cases Cited (9)