FZI v Children's Guardian

NCAT Administrative and Equal Opportunity|2024-04-04|Before: Prof P

Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 R v Commission for Children and Young People [2002] NSWIRComm 101 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Roberts v Balancio (1987) 8 NSWLR 436 Tilley v Children's Guardian [2017] NSWCA 174 West v Mead [2003] NSWSC 161 Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 Category: Principal judgment Parties: FZI (Applicant) Children's Guardian (Respondent) Representation: Counsel: K Bones (Applicant) T Elliott (Respondent)

REASONS FOR DECISION

The applicant FZI sought an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act") because he is a "disqualified person" due to the conviction in 2021 that he did "sexually touch another person without consent". The application for an enabling order was heard on 4 April 2024. On that date the Tribunal granted an enabling order and reserved its reasons for that decision. These are the reasons for that decision.
The Children's Guardian wrote to the applicant on 15 August 2023 and informed him that his Working with Children Check Clearance (WWCC) application was refused pursuant to section 18(1) of the Act. The applicant is a disqualified person under the Act because the conviction as an adult of the specified offence is one which is referred to in schedule 2.1 (1)(e). The respondent must not grant a WWCC to a disqualified person.
An order has been made earlier under section 64(1) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of information that will identify the applicant, any children, or victims, and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. That order is continued and made in accord with the current practice of the Tribunal.
In summary, after carefully considering at length the material relied upon by the parties, the additional oral evidence, and the helpful submissions, the Tribunal has determined that the applicant should be granted a Working With Children Check clearance for the reasons which follow.

The evidence relied upon in the hearing

In addition to the Application filed annexing the decision refusing the Working With Children Check Clearance, the applicant and respondent relied upon the documents which were tendered and marked as Exhibits as follows: 1. Application filed by the applicant dated 8 September 2023: Exhibit A1; 2. Applicant's bundle of documents filed 12 December 2023: Exhibit A2; 3. Applicant's supplementary bundle of documents filed 13 March 2024 (which contain the written submissions of the applicant): Exhibit A3; 4. Respondent's bundle of documents filed 6 November 2023: Exhibit R1 5. Respondent's submissions dated 28 March 2024 filed 2 April 2024: Exhibit R2.
The material relied upon by the parties in evidence has been considered and, where appropriate, that evidence is referred to in these reasons.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact is determined upon the civil standard of proof which is on the balance of probabilities.

Legislative Provisions relevant to the decision

The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are also referred to in the submissions, and these reasons necessarily involve some repetition of previous statements made in earlier decisions, so that the legislative basis of this particular decision is transparent and identified.
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows: "Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and 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."
The section shows that it is considered by the legislature to be a serious matter which may result in imprisonment upon conviction. It is obvious that the offence of "abuse" is defined by 3 separate types of harm: i) physical injury or sexual abuse; ii) emotional or psychological harm likely to damage emotional or intellectual development or in fact has caused such damage; iii) physical development or health being significantly harmed.
The objects of the Act are set out in section 3 which provides: "Object of Act The object of this Act is 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."
"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
"Conviction" as defined in section 5 (1) of the Act "includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction."
The definition of "risk to the safety of children" is a reference to a real and appreciable risk to the safety of children: section 5B of the Act.
Pursuant to section 14 of the Act a person becomes subject to an assessment requirement in the circumstances referred to in the section which is as follows: 14 Assessment requirements A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.
The circumstances in which the Children's Guardian may conduct a risk assessment are not limited by the reasons set out in subsection 15 (1) or subsection 15 (2). The section relevantly provides as follows: "15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. ...."
However, the applicant FZI was not the subject of a risk assessment by the Children's Guardian as the applicant is a "disqualified person" under schedule 2.1(1)(e) of the Act and can be given a Working With Children Check Clearance only if he is granted an enabling order by this Tribunal.
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.
A person is not entitled to apply for an enabling order if they satisfy both subsections 26(1) and 26(2) of the Act. The disqualifying offence in relation to the applicant is referred to in subsection 26(1)(a)(ii) of the Act. However, none of the criteria specified in subsection 26(2) are satisfied in relation to this matter.
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] NSWIRComm 101 at [130].
The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "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). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children's Guardian [2015] NSWSC 523.
The Tribunal is required to follow the decision in the Supreme Court BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [30]-[33], in relation to the assessment of risk. In that decision, His Honour relied upon the approach of the High Court in the often-cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order: "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."
It is also not necessary for the Tribunal to make any findings that allegations not the subject of convictions in fact occurred: Children's Guardian v BQJ [2016] NSWSC 869 at [64] per Button J.
The Court of Appeal has considered the issues relating to risk in CXZ v The Children's Guardian [2020] NSWCA 338. It is instructive to extract from the decision of Simpson AJA (with whom McCallum JA agreed) at [56]-[59]: 56 In Tilley v Children's Guardian [2017] NSWCA 174 Basten JA (with the agreement of Meagher and Leeming JJA) referred to M v M and said at [34]: "The Court noted that some allegations might be seen to be well-founded, while others may be seen as groundless. However, the Court accepted that there would be allegations falling into an intermediate category which were nevertheless relevant to the assessment of future possibilities or likelihoods, which lay at the heart of the Family Court's function in determining appropriate orders with respect to custody and access, for the welfare of a child." 57 None of these decisions endorses the proposition that, in respect of every allegation raised by the Children's Guardian against an applicant for a clearance, the Tribunal must engage in the three-step process for which the respondent contends. 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. 58 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. 59 The High Court did not, in M v M, have in mind a case such as the present where a series of disparate allegations are presented as a basis for refusing a clearance. It merely referred to allegations that "the father had sexually abused the child". There was no indication of the number of times on which the abuse was alleged to have occurred, nor the nature of the abuse alleged, other than that it was of a sexual nature. Certainly the High Court did not suggest that each such allegation ought to have been assessed and determined serially. Yet that is the effect of the proposition now being advanced on behalf of the respondent.
In NU v NSW Secretary of Family and Community Services [2017] NSWCA 221, Beazley P (McColl JA and Schmidt J agreeing) stated at [55]-[59]: 55 However, as the High Court pointed out in M v M at [22], an inability of the court to make a positive finding of abuse does not conclude the question of the appropriate order to be made, in that case involving custody or access to a child, where the paramount consideration is the "best interests of the child". The same position applies to the appropriate order to be made under the Care and Protection Act. Having regard to these principles, the primary judge was required to assess the evidence to determine whether K would be exposed to an unacceptable risk of sexual abuse if restored to the care of her parents including her father. 56 NU's particular complaint is that he was denied procedural fairness, whether that be pursuant to the rule in Brown v Dunne or some more general principle of procedural fairness, in circumstances where his denial of sexual abuse was not the subject of cross-examination. It is well established that a failure to afford procedural fairness, where there is a requirement to do so, constitutes error of law which is jurisdictional in nature: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [26]-[42] per Gaudron and Gummow JJ (Gleeson CJ agreeing); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [213] per Kirby J; Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 186 per Handley JA. 57 It is also well established that a finding made in the absence of cross-examination may involve a denial of procedural fairness: see rule in Browne v Dunn. The meaning of the rule in Browne v Dunn was explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 at 16: "It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67." 58 There is a clear corollary of the rule, namely, that if a witness is on notice of the allegation upon which a party intends to rely and is on notice that his or her evidence is contested on that issue, the rule does not mandate that the witness be cross-examined on the matter. This was explained in Browne v Dunn by Lord Herschell LC at 71, who pointed out that there was no obligation to raise such a matter where it is: "… perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling … All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted." See also West v Mead [2003] NSWSC 161 per Campbell J at [94]-[97]. … 62 In the present case, it is unnecessary to determine whether there would have been a denial of procedural fairness had NU not been cross-examined on his sworn denials of having sexually assaulted J. Nor is it necessary to determine whether there is some other or additional principle of procedural fairness that ought to have governed the conduct of the matter. NU was clearly on notice that the allegations of sexual abuse preceding the alleged occasions in March 2013 were in issue. 63 The evidence before the Children's Court and on appeal in the District Court included the JIRT interview and the transcript of J's cross-examination in the criminal proceedings, which included extensive cross-examination on her allegations of earlier abuse occurring over a number of years. It also appears that no application was made that J give oral evidence in either court. The Court was informed that it is unusual for a child witness to be required to attend to give oral evidence.
In Isles & Nelissen [2022] FedCFamC1A 97, Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ, at [55] considered the issue and manner of assessment of future unacceptable risk and explicitly approved the decisions in CXZ and NU.
The likelihood of future abuse or future unacceptable risk of harm is a matter which is not dependent on a finding that a past event occurred on the balance of probabilities or on the Briginshaw standard of satisfaction in relation to proof.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions and if granted the Tribunal will also order the Children's Guardian to grant a clearance: section 28 (8) of the Act; see BKE v Office of the Children's Guardian at [23]-[26]..
The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children's Guardian [2015] NSWCATAD 65. This approach is supported by the decision of the Supreme Court in BKE v Office of the Children's Guardian at [23]-[26].

The Issue

There is a presumption in proceedings under section 28 of the Act that the applicant poses a risk to children if the applicant is a disqualified person seeking an enabling order: section 28(7) of the Act and BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].
The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.
The issue for decision is that the Tribunal has to be affirmatively satisfied that the applicant does not pose a real and appreciable risk to the safety and well-being of children.

Considerations and the Evidence

The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application.
Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the decision will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
Section 30 of the Act relevantly provides in relation to this application as follows: 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, (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. (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 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.
The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under subsection 30(1) and subsection 30(1A) of the Act. The evidence described is recited under subheadings referring to the required considerations under the Act.
Also, as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant and the circumstances around the applicant's conduct: section 63 of the Administrative Decisions Review Act 1997 (NSW).

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

The applicant is a disqualified person as set out earlier in these reasons.
The disqualifying offence was heard in 2021 "sexually touch another person without consent" section 61KC(a) Crimes Act 1900 (NSW) for which he was fined $880. The applicant also pleaded guilty to common assault in relation to the first victim for which he received a 12 month conditional release order without conviction.
The applicant was working as a master of ceremonies and performer at an adult entertainment show in 2020. The show was performed in front of a predominantly female audience of about 200 people. The show commenced about 7:30 pm and finished about 11:00 pm. After the show there was a "meet and greet" where performers meet and take pictures with members of the audience. The applicant normally did not attend the meet and greet because he had to get up early the next morning for acting classes. The applicant's manager from Melbourne was attending the show and had arranged an evening out with the team. There were free drinks of alcohol. The applicant drank excessively. He estimates drinking about 15 to 20 drinks during the night. The applicant does not remember much about the evening except dancing with two audience members whom he met after the show. The applicant and those audience members were flirting with each other. The applicant then remembers being attacked by about five men and taken to a room at the nightclub until the police arrived and took him to the police station. When the applicant awoke at the police station he thought he had been involved in a fight. When the police informed him what had occurred he was shocked.
The applicant leant his body against the front of the first victim's body with the front of his body and put his hands beside her. The victim felt distressed and pushed him away. The applicant later then put his head into the second victim's chest between her bosoms and moved his head from side to side for approximately one second until she pushed him away. This was captured on CCTV and the applicant viewed the recording.
The venue comprised only adults and there were no children allowed.
Section 5 of the Act contains the following definitions: conviction includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction. criminal history - see section 5C.
Section 5C of the Act defines further: 5C Meaning of "criminal history" (1) A person's criminal history includes - (a) convictions (including convictions that have been spent, quashed or set aside or for which a pardon has been granted), despite anything to the contrary in the Criminal Records Act 1991, and (b) criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged, and (c) convictions or findings to which section 579 of the Crimes Act 1900 applies (despite the provisions of that section). (2) In this section - conviction has the same meaning as it has in the Criminal Records Act 1991.
In 2006 the applicant was charged with resist or hinder police. The charge arose from a brawl in city in the early hours of the morning, where it was alleged that the applicant hindered police in breaking up the brawl. The applicant was 19 years old at the time. The charge was dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
In 2011 the applicant was charged with stalk or intimidate intending to cause fear of physical or mental harm, involving his former partner. The matter was heard in the Local Court and dismissed.
The applicant acknowledges the seriousness of touching another person sexually without their consent and the impact of this on his victim. The offence carries a maximum penalty of imprisonment for five years. The sentence imposed by the Local Court was a fine and for that reason can be considered at the lower end of the range of seriousness for that offence.
The other matters contained in the applicant's criminal history would also appear to be at the lower end of the range of seriousness.

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

The disqualifying offence occurred in 2020 and the conviction occurred in 2021.
The applicant has had no further convictions or charges and no involvement with the police.
The period of time which has now elapsed since the offence occurred is significant in the context of the applicant's circumstances.
The applicant has engaged in counselling and ceased drinking alcohol. The applicant has been a personal trainer since his late teenage years. His personal training clients, friends and his employer speak highly of his character, support for others and identify that he has had a positive impact upon their lives.

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

The applicant was aged 33 years of age when the offence occurred. The applicant impressed as having psychologically and emotionally matured since the offending behaviour.

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

The victims were aged 21 and 23 at the time.
The applicant knew the victims were adults and there is no evidence to suggest they had any vulnerabilities.
The evidence does not indicate that any children were present when the offence occurred.
The Act primarily requires protection of children.

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

The difference in age between the applicant and the victim is 10-12 years. Both the victims and the applicant were adults and did not have an existing relationship referred to in the material tendered in evidence. It is inferred that they did not know each other at the time of the offence.

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

The applicant knew that the victim was not a child.

The person's present age

The applicant is aged 37 years at the time of hearing.

The seriousness of the person's criminal history and the conduct of the person since the matters occurred

The applicant has a minimal criminal history confined to the occurrences over the span of 14 years. They appear to have been related to the applicant's excessive consumption of alcohol at least in relation to two of those matters, and immaturity in relation to all of the matters.
The applicant's conduct since the matters complained about has not attracted adverse comment or been the subject of any further investigation.

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

The applicant relies upon the history since the offences and his self-improvement to support his contention that there is unlikely to be any repetition of the offences or conduct and a low risk of reoffending.
The applicant has been remorseful and embarrassed by his behaviours. The applicant has undertaken counselling which helped him cease drinking alcohol and develop stress management skills.
The Tribunal is to form its own opinion about the likelihood of any repetition of conduct or risk in relation to the applicant, independent of any expert opinion.
An indicator of future behaviour generally is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person may prospectively behave.
An assessment of risk has two elements. The first involves the prediction of the likelihood of the occurrence of a harmful event. The second consideration is the severity of the impact of such an event would have if it occurred, so that if the consequences of the event occurring will be significant that will have a greater bearing on the assessment of whether there is an unacceptable risk: Deiter & Deiter [2011] FamCAFC 82, at [61]; Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344 esp. at [66]; Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395.
In Johnson v Page [2007] Fam CA 1235; (2007) FLC ¶93-344 the Full Court of the Family Court referred with approval to an analysis which helps to explain the High Court decision in M v M; 68. In his recent paper entitled 'Unacceptable risk - A return to basics' the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows: 1 The decisive issue is and always remains the best interests of that child. All other issues are subservient. 2 The nature of the risk is best expressed by the term 'unacceptable risk'. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. 3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies. 4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk. 5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child. 6 The onus of proof in reaching that conclusion is the ordinary civil standard. 7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard. and thereafter expanded some points contained in the summary. 69. Relevantly for the issues raised in this appeal, he noted that rather than referring to "the Briginshaw test" it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) ("the Evidence Act") …"
More recently the analysis of unacceptable risk and the assessment of allegations of risk has received attention at the highest level in the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction, in Isles & Nelissen [2022] FedCFamC1A 97. The Court convened a 5 member Court consisting of Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ. The reasons were delivered on 1 July 2022. The Court at [46] in its joint reasons stated that: "Moreover, for clarity, neither Potter and Potter nor Johnson and Page should be regarded as accurately reflecting the law."
The inaccuracy, to be seen from the balance of the reasons, is obviously in relation to point 6 in the extract of paragraph [68] in Johnson and Page. The Court also referred with approval at [55] to the approach taken in the decision CXZ v The Children's Guardian [2020] NSWCA 338 referred to previously in these reasons. After referring at [52] to the decision of the High Court in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 ("MZAPC") (at [38] and [39] of that decision) the Court then observed at [53]: "The point being made, importantly for present purposes, was that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities."
In CXZ v The Children's Guardian [2020] NSWCA 338 at [12]-[26] Basten JA in his dissenting judgment (in relation to the result) analyses the manner of assessing risk to children under the Act and refers to High Court decisions which support the process articulated to arrive at the answer to the ultimate question "whether a clearance will create a real and not fanciful risk to the safety of children." In the judgment of Simpson AJA at [57]-[59] (with which McCallum JA agreed) the process is clearly articulated (see previous reference and extract).
The applicant relies upon the evidence from a clinical and forensic psychologist who has provided a report. In that report it is stated: Considering [the applicant's] static and dynamic factors, he is considered to pose an overall low risk of sexual recidivism. Based on the nature of his offence, it is likely any future victims would be an adult woman and someone who is unknown to him. Although his risk is low, [the applicant's] risk would increase in the situation of poor coping with personal stressors and excessive consumption of alcohol or other drugs. There is no evidence that [the applicant] poses a risk to children and young people.
From September 2020, the applicant worked as a personal trainer in commercial gyms which now require a working with children check clearance. On 15 August 2023, the applicant was informed of the refusal of his application for a clearance. Since that time his ability to work as a personal trainer has been limited. The applicant lives with his parents, receives the jobseeker payment and is in debt.
The applicant submitted that there is a low risk of repetition of the offences or conduct. The applicant submitted that any repetition of the offending conduct would not involve or impact on children. It is considered by the Tribunal that the behaviour in front of children would obviously impact upon the children. If the applicant's conduct was repeated in the future and in the presence of children the impact upon children would be significant. The behaviour if it occurred in the future to a child would be likely to have an adverse effect upon a child.

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

There was no current order of a Court or Tribunal brought to the attention of the Tribunal.

Any information given by the applicant in, or in relation to, the application

The applicant has provided information prior to and during the course of the hearing. The applicant relied upon the psychological report and letters of reference.
It was not submitted that the applicant had failed to provide any relevant information. The applicant was cross-examined and is considered to have been truthful and honest in his evidence.

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

There is no relevant information provided in this category.

Any other matters that the Children's Guardian considers necessary

The Children's Guardian made submissions addressing those matters which the Children's Guardian considers necessary.
The Children's Guardian submitted at the hearing that in the circumstances the applicant does pose a risk to the safety of children.
It was submitted that the applicant had not discharged the onus on the applicant to demonstrate that he is not a real and appreciable risk to the safety of children.

Consideration

The Act is designed to be protective of children and there are a number of matters which may be relevant to an assessment of risk.
The behaviour which led to a conviction was beyond reasonable community norms, the behaviour was not part of a pattern, and the behaviour, if repeated, would do significant harm. There are mitigating factors such as evidence of significant and sustained positive progress since the behaviour occurred, there is recent evidence that there has been a genuine and sustained effort to successfully address the offending behaviour.
Remorse is considered to be a factor that mitigates risk in this matter. The applicant has shown remorse for his clearly inappropriate behaviour. The applicant accepts that his behaviour was unlawful and unacceptable.
The applicant relied upon the isolated nature of the disqualifying offence, the time since the offence, which has been incident free, and the fact that it is at the lower end of the scale of seriousness. The consumption of alcohol was a significant factor in the offensive behaviours and the applicant has addressed that matter successfully, to date. That will be a factor he will need to remain aware of and control to remain low risk.
Having regard to all of the matters referred to previously in these reasons it is the Tribunal's determination that there is not an unacceptable risk of harm posed by the applicant. That unacceptable risk of harm can exist independently of a finding on the balance of probabilities that particular events have occurred: BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33]; Children's Guardian v CFW [2016] NSWSC 1406; NU v NSW Secretary of Family and Community Services [2017] NSWCA 221.
The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus, but it is not the only factor which must be considered. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk must give primacy to protective factors whilst balancing all of the risks which may be posed to children.
The Tribunal recognises that the provisions of section 30 (1A) of the Act apply to this application.
Since the Tribunal considers that the applicant does not pose a risk to children, the Tribunal is required to consider subsection 30(1A) of the Act.
The Tribunal considers that a reasonable person with full knowledge of the applicant's criminal history 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 child-related work.
Additionally, the safety welfare and well-being of children and the need to protect them from child abuse assumes significant, if not determinative, importance. The absence of a clearance will impact on the range of work the applicant can undertake. The public interest test requires a balancing of those competing interests.
It is considered in the public interest for the applicant to be granted a clearance so that he can use his professional skills and experience gainedsince the adolescence to benefit his community. The applicant is dedicated to his work as a personal trainer. The applicant considers that work is a way to "give back to the community". The applicant's other avenues of employment are limited. There is no evidence that it would be against the public interest to grant the applicant an enabling order.

Conclusion

There is a presumption in proceedings under section 28 of the Act that the applicant poses a risk to children since the applicant is a disqualified person seeking an enabling order: section 28(7) of the Act.
If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.
As referred to previously in these reasons, it is the Tribunal's determination that there is no unacceptable risk of harm posed by the applicant. The evidence received by the Tribunal establishes that the Tribunal can be satisfied for the reasons expressed that the applicant does not currently pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.
It is concluded on the balance of probabilities that, having regard to the circumstances surrounding the conduct by the applicant, the existence of a real and appreciable risk to children has been disproven: see BKE v Office of the Children's Guardian [2015] NSWSC 523 at [33].
The applicant's conduct since the disqualifying offence, the steps he has taken to address his alcohol consumption and to lead a healthy lifestyle make it unlikely that the applicant would repeat the disqualifying behaviours. In all the circumstances, taking into account all the considerations required under section 30 (1) of the Act, referred to in detail previously in these reasons, the decision of the Tribunal is that the applicant does not pose a risk to the safety of children and should have a Working with Children Check clearance.

Orders

The orders of the Tribunal are that: 1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction for "sexually touch a person without consent", in contravention of s 61KC(a) of the Crimes Act 1900. 2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a Working with Children Check Clearance. 3. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 4. It is noted that a reference to 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.

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: 14 May 2024

(2006) 36 Fam LR 395

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Cases Cited (34)