Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EPW v Children's Guardian [2021] NSWCATAD 98 Hearing dates: 30 March 2021 Date of orders: 23 April 2021 Decision date: 23 April 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: K Ransome, Senior Member Decision: 1. The request by EPW to stay the decision made by the Children's Guardian on 18 February 2021 is refused. 2. The Children's Guardian is to provide any further evidence to the Tribunal and EPW on or before 20 April 2021. 3. EPW is to provide any evidence, including statements and documents, to the Tribunal and the Children's Guardian on or before 4 May 2021. 4. The Children's Guardian is to provide any evidence in reply and submissions to the Tribunal and EPW on or before 18 May 2021. 5. EPW is to provide submissions to the Tribunal and the Children's Guardian on or before 28 May 2021. 6. The directions hearing listed on 22 April 2021 is vacated. 7. The matter is listed for hearing at 10:00 am on 10 June 2021 for half a day. The hearing is to be by audio visual link (AVL). Catchwords: ADMINISTRATIVE REVIEW – working with children check clearance – decision that applicant is a disqualified person – application for stay – stay refused Legislation Cited: Child Protection (Working with Children) Act 2012 Cases Cited: CZI v Children's Guardian [2017] NSWCATAD 179 DNQ v Children's Guardian [2018] NSWCATAD 188 Category: Procedural rulings Parties: EPW (Applicant) Children's Guardian (Respondent) Representation: Counsel: S Lawrence (Applicant) Solicitors: Mardini Defence Lawyers (Applicant) Crown Solicitor (Respondent) File Number(s): 2021/00081205 Publication restriction: 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 (NSW). Note: 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. REASONS FOR DECISION 1. On 15 January 2021 EPW was charged with an offence under s 43 of the Crimes Act 1900 of abandon/expose child under 7 cause danger of death relating to events which occurred on 9 January 2021. She was later convicted of that offence at the Local Court of NSW on 16 March 2021 following her plea of guilty and fined $800. 2. On 4 February 2021 EPW made an application to the Children's Guardian for a working with children check clearance. On 18 February 2021 the Children's Guardian, acting on powers held under the Child Protection (Working with Children) Act 2012 (the Act), gave notice to the applicant, EPW, that she is a disqualified person and therefore must not be granted a working with children check clearance. EPW has made an application to the Tribunal seeking an enabling order under s 28(1) of the Act that she is not to be treated as a disqualified person under the Act in respect of the offence. 3. EPW has asked that the decision not to grant her a working with children check clearance be stayed under s 30(2) of the Act pending the outcome of the substantive application. For the reasons which appear below, I have decided not to grant the stay. Background 1. EPW is a registered nurse who works at a large hospital. Although she does not work directly with children, as part of her employment with the hospital she is required to have a working with children check clearance. 2. Information obtained from the police facts sheet is that at about 10:00 pm on 9 January 2021 EPW left her home and took a bag of unwanted clothing to a charity bin. She left her older child, aged 3, alone in an upstairs bedroom with the door closed. Her 18 month old child was in a cot in another room and the door was pulled to. The main door to the house was left unlocked and the children were left at home alone as EPW's husband was at work. When EPW returned about 30 minutes later she found the door to her 3 year old's bedroom open and that he was gone. The 18 month old was still in the cot. 3. At about 10:35 pm a witness observed the 3 year old in a T shirt and underwear walking on the street. The child was about 500 m from home and had crossed the street. Police were called and a large scale canvas of the area was commenced. At 11:11 pm EPW contacted police to report her child missing and police returned the child home. 4. EPW admitted to police that she had left the children alone for about 30 minutes and later pleaded guilty to the offence of abandon/expose child under 7 cause danger of death. As noted above, she was fined $800. EPW has appealed the penalty on the grounds of severity. 5. EPW notified her workplace of the charges laid against her and was suspended from work without pay from 5 March 2021. She remains suspended. Legal principles 1. Section 4 of the Act provides that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. 2. The Children's Guardian is not permitted to grant a working with children check clearance to a person convicted of an offence specified in Schedule 2 of the Act, including an offence under s 43 of the Crimes Act, if the offence was committed as an adult (s 18(1)). Such a person is a "disqualified person." EPW does not appear to dispute that she is a disqualified person within the meaning of the Act. 3. In any application under s 28 where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children (s 28(7)). 4. When considering an application under Part 4 of the Act, which includes an application for a stay, the Tribunal is required to have regard to the factors set out in s 30(1) of the Act. In addition, the Tribunal may not make an order under Part 4 which has the effect of enabling a person to work with children in accordance with the Act unless the Tribunal is satisfied of certain matters set out in s 30(1A). Those sub-sections are as follows: (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. 1. The principles relevant to the grant of a stay were set out by the Tribunal in CZI v Children's Guardian [2017] NSWCATAD 179 and subsequently in DNQ v Children's Guardian [2018] NSWCATAD 188. These include that that the overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances and, where a decision has been made in the public interest, that the protection of the public is a matter entitled to significant weight (CZI at [35] – [36]; DOP at [48] – [49]). In addition, the Tribunal should give consideration to: 1. the prospects of success of the enabling order application; 2. whether the stay would secure the effectiveness of the determination of the application; and 3. the interests of any persons who may be affected by the determination. Consideration 1. EPW gave evidence at the hearing that she remains suspended from work after the conclusion of the criminal case as she is required to have a working with children check clearance in order to work as a nurse. She said that she was informed of this over the telephone by a HR manager at the hospital. When questioned further, she also said that she had advised the hospital of the outcome of the court case and a review of her suspension is to be conducted. While she indicated that it is her disqualification from obtaining a working with children clearance that is preventing her return to work, it is also apparent that the hospital is yet to consider whether any suspension should remain in force on the basis of the criminal conviction. 2. The most critical issue when deciding whether to grant a stay is whether EPW has displaced the presumption that she is a risk to the safety of children. If she has not, having regard to the paramount consideration being the safety, welfare and wellbeing of children, the Tribunal would not grant the stay. 3. I turn now to a consideration of the factors under s 30(1) of the Act which are relevant to the evaluation of such risk. All matters in s 30(1) must be considered, although some will be less relevant than others and consequently carry less weight. Seriousness of the offence 1. The offence is objectively serious as is indicated by the fact that the maximum penalty is 5 years imprisonment and concerns the risk to children under the age of 7. The respondent points to the fact that EPW did not call police for 41 minutes after returning home and noticing her child was missing as another factor pointing to the seriousness of the offence. While EPW has expressed remorse for her actions, she did not offer any explanation to the Tribunal for the delay in contacting police or any detailed evidence of the circumstances leading to the offence. 2. The penalty of an $800 fine, however, recognises that minimal harm was caused to EPW's children. Period of time since the offence and conduct of the applicant since 1. The offence occurred very recently and only a little over two months has elapsed. There is nothing to suggest that EPW has engaged in any other conduct of concern since that time. She and her husband state that they have installed deadlocks, upgraded their alarm system and installed CCTV since the incident. EPW's husband has also changed his roster to ensure he is at home at night to provide more support to his family. Age at the time of the offence 1. EPW was 39 at the time of the offence and is now 40 years old. Age of the victim and any matters relating to the vulnerability of the victim 1. EPW's children were 3 and 18 months old at the time of the offence and were clearly very vulnerable because of their young age. The difference in age between the victims and the person and their relationship 1. The ages of EPW and her children are set out above. She is their mother and thus they place great reliance and trust upon her. Whether the person knew the victim was a child 1. EPW was clearly aware that her children were very young. Past criminal history and conduct since the events occurred 1. EPW has no prior criminal history and, as noted above, has not engaged in any conduct of concern since the events of 9 January. In references supplied to the Tribunal her colleagues at the hospital speak highly of her capabilities and professionalism. EPW also submitted that she has not been the subject of any allegations of misconduct at work. Likelihood of repletion of the offence and the impact of any repetition on children 1. EPW expresses deep remorse for her actions on the night of 9 January 2021. She states that she acted irrationally and spontaneously in leaving the house that night and will never repeat her actions. Her husband and colleagues also acknowledge her remorse and state that her actions that night were out of character. 2. In my view, it is very unlikely that EPW would repeat the offence. If she did, of course, the impact on a child could be very serious indeed and could result in serious harm or death to a child. Other matters 1. There is no evidence that EPW is the subject of any current order (other than the order to pay $800 which is under appeal). There is also no relevant information in relation to her which was obtained in accordance with s 36A of the Act. Any information given by the applicant in relation to the application 1. The applicant provided information about her and her husband's financial circumstances and submitted that the family will face financial hardship if she is unable to work. She also submitted that she made an error of judgment for which she apologises and takes full responsibility. 2. EPW submits that the offence was not work related, was unusual, out of character and will never be repeated. She also states that she does not work directly with children in her workplace but is required to have the clearance as a matter of hospital policy. Any other matters that the Children's Guardian considers necessary 1. The Children's Guardian referred in submissions to the matters outlined above and stated that limited information with respect to several of the factors under s 30(1) – such as detailed information about the circumstances of EPW's offending and the conduct of EPW since her conviction – is available. The Children's Guardian submitted that, in the absence of evidence which might otherwise discharge the onus upon EPW to establish that she does not pose a risk to the safety of children, the fact of the conviction alone, particularly when considered against the minor age of the victims, demonstrates that, at an interim stage, there is insufficient evidence for the Tribunal to be satisfied that the prospects of that burden being discharged are sufficiently strong to justify the grant of a stay. 2. In addition, the Children's Guardian questioned the utility of any stay order in the particular circumstances of this case. The evidence is that EPW's working with children check clearance expired in August 2020 and that she has not held a clearance since then. It was not until 4 February 2021 that she made an application to obtain a new clearance. 3. The only decision that has been made by the Children's Guardian is that EPW is a disqualified person and that any working with children check clearance must therefore be refused. EPW was not in possession of a valid clearance that has been revoked or cancelled by the Children's Guardian's determination, thereby preventing her from continuing in her prior role. Having regard to the fact that an order under s 30(2) cannot operate as an interim enabling order (see DNQ at [118]-[119]; CZI at [76]-[77]), the effect of grant of a stay on EPW is unclear. 4. It is possible that EPW might take advantage of s 8(1)(b) of the Act, which would permit her to engage in child-related work while a "current application…to the Children's Guardian" for a clearance is on foot. However, the Children's Guardian states that it is not clear whether any application for a clearance is still on foot as a decision has in fact been made by the Children's Guardian. Furthermore, it is unclear whether the hospital will allow her to return to work at the moment in any event. Consideration 1. As noted above, EPW bears the onus of persuading the Tribunal that she is not a risk to the safety of children. 2. I accept, as does the Children's Guardian, that the actions of EPW were out of character and that she is remorseful. The character references she has provided also attest to the unusual nature of the offending and EPW's otherwise good record and disposition. 3. I do not consider that a stay is necessary to secure the effectiveness of the determination of the application for an enabling order. That application is able to proceed and the Children's Guardian has agreed to an expedited timetable for the exchange of evidence and hearing. While the applicant and her family may suffer some financial hardship as she is unable to work, that matter cannot override other considerations. There also remains the question of whether, even if a stay were to be granted, EPW could resume work. Her evidence with respect to whether the suspension would be lifted in light of her conviction (rather than her lack of a clearance) was equivocal. The utility of a stay in those circumstances is therefore questionable. 4. One of the difficulties facing EPW is the short period of time that has elapsed since the offending. While there is evidence that she and her husband have put in place additional security measures and made other attempts to relieve her of some of the burden of caring for her children, running the household and working, these do not necessarily go to the crux of whether she poses a risk to the safety of children. 5. There is no doubt that the offence was serious and could have had very serious consequences for EPW's very young child, although it is accepted that minimal harm in fact resulted. There are currently some deficiencies in the evidence of the circumstances surrounding the offence, EPW's actions at the time and her conduct since her conviction. 6. At this point in time I am not satisfied that EPW has established that she does not pose a risk to the safety to children. Accordingly, EPW has not established that the interests of justice require the grant of a stay in the circumstances of this case. The application must therefore be refused. Directions are made, however, to expedite the hearing so these matters can be fully ventilated at a final hearing. Orders 1. The request by EPW to stay the decision made by the Children's Guardian on 18 February 2021 is refused. 2. The Children's Guardian is to provide any further evidence to the Tribunal and EPW on or before 20 April 2021. 3. EPW is to provide any evidence, including statements and documents, to the Tribunal and the Children's Guardian on or before 4 May 2021. 4. The Children's Guardian is to provide any evidence in reply and submissions to the Tribunal and EPW on or before 18 May 2021. 5. EPW is to provide submissions to the Tribunal and the Children's Guardian on or before 28 May 2021. 6. The directions hearing listed on 22 April 2021 is vacated. 7. The matter is listed for hearing at 10:00 am on 10 June 2021 for half a day. The hearing is to be by audio visual link (AVL). ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 23 April 2021