Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EPW v Children's Guardian [2021] NSWCATAD 207 Hearing dates: 10 June 2021 Date of orders: 14 July 2021 Decision date: 14 July 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: A Starke, Senior Member L Houlahan, General Member Decision: (1) The decision of the Children's Guardian dated 18 February 2021 to refuse to grant the applicant a working with children check clearance is set aside. (2) Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of her conviction in March 2021 (which, on appeal, resulted in the applicant being found guilty but without proceeding to conviction) of the offence of one count of "Abandon/expose child under 7 cause danger of death" being a criminal offence under s 43 of the Crimes Act 1900. (3) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children's Guardian is to grant the applicant a working with children check clearance. (4) 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, pursuant to section 64(1) 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. Catchwords: ADMINISTRATIVE LAW - Working with children check clearance — Application for enabling order under s 28 of the Child Protection (Working with Children) Act 2012 Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Crimes Act 1913 (WA) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 Texts Cited: CHB v Children's Guardian [2016] NSWCATAD 214 Commission for Children and Young People v V [2002] NSWSC 949 CRG v Children's Guardian [2017] NSWCATAD 295 CXZ v Children's Guardian [2020] NSWCA 338 CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262 DAI v Children's Guardian [2017] NSWCATAD 308 DCY v Children's Guardian [2019] NSWCATD 274 Secretary, Department of Justice v LMB [2012] VSCA 143 Smith v Commissioner of Police [2014] NSWCATAD 184 The Commissioner for Children and Young People v IK [2005] NSWSC 1136 VQB v The Secretary to the Department of Justice [2013] VCAT 789 ZZ v Secretary to the Department of Justice [2013] VSC 267 Category: Principal judgment Parties: EPW (Applicant) Children's Guardian (Respondent) Representation: Counsel: Stephen 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, pursuant to section 64(1) 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 Introduction 1. In this matter, the Tribunal handed down its decision ex tempore on 10 June 2021. These are our written reasons. 2. The applicant filed her application for administrative review on 23 March 2021, requesting review of a decision dated 18 February 2021 of the Children's Guardian (the Decision), to refuse to grant a working with children check (WWCC) clearance to her on the ground that she was a disqualified person. 3. The applicant was a disqualified person under s 18(1) of the Child Protection (Working with Children) Act 2012 NSW (the Act), as a consequence of having been convicted in March 2021 of the offence of "Abandon/expose child under 7 cause danger of Death" under section 43 of the Crimes Act 1900 (NSW). This is a disqualifying offence under Schedule 2.1(1)(o) of the Child Protection (Working with Children) Act 2012. 4. The offence of which the applicant was found guilty carries a maximum penalty of 5 years imprisonment. The applicant pleaded guilty in the Local Court, was convicted and fined $800.00. The applicant appealed the severity of the sentence. In the District Court the applicant was found guilty (but without proceeding to conviction) and was sentenced to a Conditional Release Order for a 3-month period expiring in August 2021. 5. In requesting an administrative review of the Decision, the applicant also sought an enabling order pursuant to s 28(1) of the Act, declaring that she is not to be treated as a disqualified person for the purposes of that Act in respect of her conviction. During the hearing, the applicant's Counsel confirmed that, additionally, the applicant sought an order under s 28(6) of the Act requiring the respondent to grant her a WWCC clearance. 6. We noted that the respondent had opposed the applicant's request that the Decision be stayed pending the determination of this review. However, in the substantive matter before us, the respondent supported the application for an enabling order. 7. The applicant sought a WWCC clearance because it was a requirement in order to return to her work as a registered nurse at a large hospital (the Hospital). Her employment had been suspended without pay pending obtaining a clearance. 8. Section 28(7) of the Act states that "in proceedings 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". The applicant therefore had the burden of rebutting that statutory presumption and proving on the balance of probabilities that she does not pose a real and substantive risk to the safety of children. 9. Due to the sensitive nature of these proceedings, an order made pursuant to subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act") prohibits 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. To give effect to this order, the pseudonym 'EPW' was used for the applicant's name. Additionally, in these reasons, some of the dates associated with the criminal proceedings have been referred to in a more general manner rather than being specific, the name of the hospital associated with the applicant's employment has not been disclosed, the ages of her children have not been identified and the details relating to character references have not been disclosed so as to protect against identification of any person named in these proceedings. Issue for determination 1. The issue for determination was whether, having regard to the matters set out in s 30(1) of the Act, the relevant facts and the evidence before the Tribunal, the applicant had discharged the onus placed on her under s 28(7) of the Act and established on the balance of probabilities that she does not pose a real and appreciable risk to the safety of children. 2. Before making an order which had the effect of enabling the applicant to work with children, the Tribunal was required to be satisfied on the matters set out in s 30(1A) of the Act. Material before the Tribunal 1. The applicant provided the following material to the Tribunal: 1. Application for administrative review attaching a copy of the Decision; 2. a bundle of documents filed on 19 May 2021 which included: 1. various correspondence between the applicant and the office of the Children's Guardian regarding the working with children clearance; 2. a forensic psychological report dated 11 May 2021 prepared by Ms Stephanie Bennett (marked "Exhibit A1"); 3. a letter of apology from the applicant; 4. a reference from the applicant's husband; 5. a reference from the applicant's line manager at the Hospital; 6. a reference from a professional colleague of the applicant; 7. a letter dated from the Director of Nursing & Midwifery at the Hospital reporting a mandatory notification regarding the applicant's self-reporting of criminal charges against herself; 8. a letter from the Chief Executive of the relevant Local Health District suspending the applicant from work without pay pending completion of a risk assessment; 9. a letter from the Human Resources Director at the Hospital to the respondent advising that the applicant's employment with the hospital requires her to have a WWCC clearance; 10. various pay slips and bank records; and 11. a copy of the Conditional Release Order issued by the District Court following the applicant's appeal on sentencing; 1. an outline of submissions prepared by Mr Lawrence of Counsel. 1. The respondent provided the following material to the Tribunal: 1. a bundle of documents filed on 30 March 2021 in connection with the stay hearing (marked "Exhibit R1"); 2. a second bundle of documents filed on 28 April 2021 which includes video footage taken on the evening of the disqualifying offence (marked "Exhibit R2"); and 3. submissions prepared by the Crown Solicitor. Background 1. The applicant has worked as a registered nurse in a specialist capacity at the Hospital for around 19 years. Her husband is also a nurse and, together, they have two children. 2. The circumstances of the disqualifying offence are as set out below: 1. At around 10pm on the night in question, the applicant put her young child in an upstairs bedroom and shut the door which was not locked; 2. She also put her infant child in a cot in a different upstairs room and closed the door over, although she did not completely clip the door hatch; 3. The applicant did some cleaning up and then left her home through the downstairs basement to drop a bag of unwanted clothing into a charity bin, a drive which took around 30 minutes, leaving both children at home alone; 4. The applicant told police that the front door to the house was left unlocked; 5. She returned home around 30 minutes later, at 10.30pm, to find her young child's bedroom door open and the child gone, however the infant child was still in the cot; 6. The applicant looked for her child within the house and downstairs basement; 7. At around 10.35pm a witness observed the child walking by himself on the road near the intersection of another street, wearing only a t-shirt and underwear, and without any pants or shoes; 8. The witness phoned Police who spoke to the child, however given his age he could not identify his address or family contact details; 9. Police began to conduct a large-scale canvass of the area and obtained aerial support from POLAIR; 10. At around 40 minutes after EPW noticed that her child was missing, she contacted Police to report the matter and the Police immediately took the child home and reunited him with the applicant; 11. Police established that the child had walked 500 metres after leaving the home and at some point, had crossed to the other side of the road without any assistance and very little street lighting; 12. Police contacted the applicant's husband and asked him to return home as they were not willing to leave the children in the sole custody of the applicant; 13. The applicant admitted to Police that she had left her children unattended for 30 minutes, acknowledging that she should not have done so; 14. As noted above, the applicant was charged with one count of "Abandon/expose child under 7 cause danger of death", a criminal offence under s 43 of the Crimes Act. 1. The applicant self-reported the matter to her employer, advising that she had criminal charges pending and that her WWCC clearance had been cancelled. She was suspended from work without pay pending completion of a risk assessment by the Hospital and the applicant obtaining a WWCC clearance, although she was permitted to access annual or long service leave entitlements during the period of her suspension. 2. The Hospital advised the respondent that as part of EPW's employment as a registered nurse in a clinical specialist capacity, she is required to have a WWCC clearance. Applicable legislation Jurisdiction of the Tribunal 1. The safety, welfare and well-being of children and, in particular, protecting them from child abuse is the overriding consideration under s 4 of the Act and the jurisdiction of the Tribunal under s 28 of the Act therefore remains protective and not punitive in nature. The object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to children: CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 (CYY) at [26]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]. 2. The protective jurisdiction of the Act is plainly evident from its stated object as set out in s 3: 3 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. 1. The paramount consideration in the operation of the Act is set out in s 4: 4 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. 1. "Children" is defined in s 5(1) of the Act to mean "persons under the age of 18 years". 2. The meaning of "risk to the safety of children" is defined in s 5B of the Act to mean a "real and appreciable risk to the safety of children." In considering this critical aspect of the meaning of "risk", guidance is provided by Young EJ in Eq in the case of Commission for Children and Young People v V [2002] NSWSC 949 at [42] (as cited with approval in BKE v Office of Children's Guardian [2015] NSWSC 523 (BKE) at [26]): "…what one is looking for is whether, in all of 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 children. One, however, must link the word 'risk' with the words that follow, namely, "to the safety of children"." 1. The Tribunal must consider whether a clearance, if granted, will create a "real and not fanciful" risk to the safety of children: CXZ v Children's Guardian [2020] NSWCA 338 at [26]. The meaning of "child-related work" 1. Section 8(1) of the Act prohibits a person from engaging in child-related work unless the person holds a WWCC clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. 2. The meaning of "child-related work" is set out in s 6 of the Act. Under s 6(2)(c), work that is for, or in connection with, "children's health services", is child-related work. It involves "the provision of health care in wards of hospital where children are treated and the direct provision of other child health services". 3. In the circumstances of this matter, the majority of the applicant's work does not involve children. However, the applicant requires a WWCC clearance in order to undertake her work as confirmed in writing by the Hospital. The meaning of "disqualified person" 1. Section 18(1) of the Act provides that the Children's Guardian must not grant a working with children check clearance to a "disqualified person". 2. A "disqualified person" is a person who has been convicted of an offence specified in Schedule 2 of the Act. 3. As already noted in these reasons, the offence with which the applicant was charged under s 43 of Crimes Act and then found guilty (without proceeding to a conviction) is a disqualifying offence under Schedule 2.1(1)(o) of the Act. Review and appeals relating to working with children check clearances 1. Part 4 of the Act deals with reviews and appeals. In particular, s 28(1) provides that a disqualified person may apply to the Tribunal for an order that the person is not to be treated as disqualified with respect to the offence specified in the order ("an enabling order"). Under s 28(6) of the Act, if the Tribunal makes an enabling order, it may order the Children's Guardian to grant the person a clearance. Statutory presumption: Applicant bears onus to disprove risk to safety of children 1. As already noted, under s 28(7) of the Act the applicant had the burden in these proceedings to rebut the statutory presumption that she poses a risk to the safety of children. 2. In determining whether the applicant has displaced that presumption, the Tribunal is required to consider "the totality of the evidence": BKE's case [28] citing The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the "cumulative effect" of the matters before the Tribunal: CYY's case at [69]-[71]. Enabling order is made without conditions attaching to the order 1. Section 28(8) of the Act provides that an enabling order cannot be made subject to conditions. Mandatory criteria for determining an application 1. In determining an application, the Tribunal must consider the matters set out in s 30(1)(a)-(k) of the Act: 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. Two-part test to be satisfied before an enabling order can be made 1. If, having considered the matters set out in s 30(1)(a)-(k), the Tribunal considers that the applicant does not pose a risk to the safety of children, it cannot make an enabling order unless it is satisfied that the applicant meets the two tests set out in s 30(1A) of the Act: (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. First limb of the two-part test known as the "reasonable person" test 1. The first limb of the two-part test is known as the "reasonable person" test. It requires the application of an objective standard based upon the views of the "reasonable person". It assumes that the "reasonable person" is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children's Guardian [2016] NSWCATAD 214 at [127]; CYY's case at [26]. 2. A similar reasonable person test is contained in Victorian legislation. In VQB v The Secretary to the Department of Justice [2013] VCAT 789 (VQB) at [36], it was said of the test that it: "requires the application of an objective standard based upon the views of a reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment of a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation." 1. The approach in VQB was endorsed by this Tribunal in CRG v Children's Guardian [2017] NSWCATAD 295 at [85] and DAI v Children's Guardian [2017] NSWCATAD 308 (DAI) at [90]. In DAI's case, the Tribunal noted at [91] the following: "In order to properly consider this test, a "reasonable person" would need know about the disqualifying offence, the circumstances surrounding the offence, the applicant's entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him." Second limb of the two-part test known as the "public interest" test 1. The second limb of the two-part test is referred to as the "public interest" test. It must be considered in the context of s 4 of the Act, namely 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: CYY's case at [74]. 2. The Victorian legislation also contains a public interest test. It has been held that the test is a broad discretionary judgment that is limited only by the scope and purpose of the statute: see Secretary, Department of Justice v LMB [2012] VSCA 143 at [24]; ZZ v Secretary to the Department of Justice [2013] VSC 267. 3. When assessing the public interest, priority should be given to the broader interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY's case at [75]. At the same time, the Tribunal ought to take into consideration the right of a person to engage in work and in community affairs and to have contact with children where they possess the appropriate skills and experience: CYY's case at [75]. 4. If the Tribunal is not satisfied that the applicant has met either of the first or second limbs in the two-part test, then it must refuse to make an enabling order. Consideration 1. In determining this application, the Tribunal "must consider" those matters specified in s 30(1)(a)-(k) of the Act. The evidence will be considered under each of the mandatory criteria headings. 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: s 30(1)(a) 1. The disqualifying offence of which the applicant was convicted is serious and carries a maximum penalty of 5 years imprisonment. However, in this case, the applicant pleaded guilty in the Local Court, was convicted and fined $800.00. 2. The Local Court Magistrate addressed the seriousness of the offence and then explained her reasons for deciding that the punishment should be at the lower end of the scale (as extracted below): "You have got a charge of exposing a child under seven to the danger of death or serious injury because you are a person who had parental responsibility for the child and you intentionally or recklessly – sorry you without reasonable excuse exposed that child to that danger. You have pleaded guilty at the first opportunity. The facts on which you are being sentence are that you put the children to bed, one in a cot and the other one in a bed and they were asleep and then you chose to leave the residence to go and do something reasonably optional, namely drop off a bag of unwanted clothing in the middle of the night. You were gone for probably half an hour. When you came home the child was missing and it turned out that he had been wandering 500 metres along the street including crossing a road with little lights. Clearly that was a very dangerous situation that the child ended up in because of this inexplicable lapse of judgment on your part and it is really quite a serious offence. I accept that it is completely out of character and that you are otherwise of good character. You are a registered nurse. You look after people. You have got a Working with Child certificate and lots of other qualifications and this is just inexplicable and unique and you have taken some steps to make sure this does not happen again. … This is quite an unusual offence but it is a serious one. I am not going to dismiss this matter without a conviction because I think it needs a conviction to send the right response to you and generally about looking after children but because you have got no record and you pleaded guilty I think the punishment should be at the lower end of the scale." 1. The applicant subsequently appealed the severity of the sentence. The appeal was heard in the District Court in the first half of 2021. The applicant was found guilty, but without proceeding to conviction, was sentenced to a Conditional Release Order for a period of 3 months expiring in August 2021. The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b) 1. The disqualifying offence occurred in early 2021. 2. There have been no other charges, allegations or complaints against the applicant since the time of the disqualifying offence. The age of the person at the time the offences or matters occurred: s 30(1)(c) 1. The applicant was 39 years of age at the time of the disqualifying offence. 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: s 30(1)(d) 1. The victim was aged 3 at the time of the offence. The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(e) 1. The victim was approximately 36 years younger than the applicant and the relationship is that of mother and child. Whether the person knew, or could reasonably have known, that the victim was a child: s 30(f) 1. As noted above, the relationship is that of mother and child. The person's present age: s 30(1)(g) 1. The applicant is now 40 years of age. The seriousness of the person's criminal history and the conduct of the person since the matters occurred: s 30(1)(h) 1. The applicant has no criminal history. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i) 1. If the applicant were to repeat her behaviour there is a clear potential for there to be significant risk to the safety of children who are either victims of such conduct or who witness such behaviour. 2. In support of her application, the applicant filed an expert forensic report by clinical psychologist, Stephanie Bennett. 3. Ms Bennett reported that the applicant acknowledged that on the night of the disqualifying offence, she had not fully considered all of the risks of leaving her children unattended. 4. The applicant was found to be child-focused in her parenting role. She is somewhat of a perfectionist when it comes to completion of tasks and, in her profession as a registered nurse she is task-focused. She had expressed feelings of generally feeling exhausted due to parenting responsibilities, being the primary care giver, and working part-time as a nurse. 5. The applicant denied any other history of leaving her children unattended without adult supervision and said that the disqualifying offence is not reflective of her normal behaviour. 6. The applicant has said that her decision to leave the children unattended was "stupid" and she expressed regret and feelings of guilt and shame. She did not attempt to minimise her behaviour. She was thankful that her young son had not been harmed and was thankful to the Police for their actions. 7. Ms Bennett reported that the applicant had insight into her actions and identified the risks involved with leaving children alone such as a fire, an accident, a medical issue, an intruder in the home or the child could have been involved in a car accident or kidnapped. The applicant identified that children are vulnerable and incapable of looking after themselves. 8. Ms Bennett opined that the offence was out of character for the applicant and was the result of a temporary lapse of judgment. 9. Ms Bennett identified some protective factors against the risk of re-offending. They include that the applicant has never had any prior convictions. She has access to prosocial support networks and peers. She has a positive attitude towards employment and a vocational history making her employable and enjoy financial stability. She did not present with any severe personality dysfunction, and does not have a mental disorder. She denies a history of a substance abuse disorder. Her only risk is that she is currently suspended from working which affects her financial stability. 10. Ms Bennett rated the applicant as having a low risk of general re-offending. 11. In determining this matter, we placed a significant amount of weight on the expert's opinion. Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1) 1. As noted above, as a result of the applicant's appeal on sentence she was sentenced to a Conditional Release Order for a 3-month period expiring in August 2021. Any information given by the applicant in, or in relation to, the application s 30(1)(j) 1. The applicant provided an apology in which she expressed remorse, shame and deep regret over her conduct which she described as dangerous and not acceptable in any way. 2. Her apology acknowledged that she acted irrationally and spontaneously in what she described as "that split second moment". 3. Her apology included a statement that she was "forever thankful" for the prompt and thorough police response in locating her child who was unharmed. 4. Since the incident, the applicant has installed deadlocks, a house alarm, smoke alarms and a security system. Her husband has changed his roster to work a majority of day shifts, to give greater support to her and the family. She has engaged with a counsellor of her cultural heritage. 5. The applicant's letter of apology was accepted by the Tribunal as a deeply sincere and unqualified statement of regret. EPW described her own conduct as shameful. In her heartfelt apology, EPW expressed her love for her children and her desire to provide the best care and support as possible for her family. She asked for the chance to improve and redeem herself. 6. We placed a substantial amount of weight on the applicant's apology and the fact that she did not seek to minimise her conduct, and that she behaved in a very respectful and contrite manner towards the police who interviewed her immediately following the incident. 7. We have, likewise placed an appropriate amount of weight on the following documents in support of the applicant: 1. a letter from EPW's husband in support of his wife which appeared to be a sincere statement attesting to her deep remorse for her actions leading to the disqualifying offence. He also attested to her integrity, compassion, and diligence in the workplace, having been under her mentorship during his own training as a registered nurse; 2. a character reference from the applicant's line manager at the Hospital, who stated that her reference had been offered, and had not been requested, by EPW. The reference described the applicant as "punctual, caring, committed to her patients, demonstrates exceptional nursing qualities, dedicated to professional development and team work"; 3. another character reference from one of the applicant's work colleagues who attests to EPW's honesty and compassion. This reference states that the applicant had confided in this work colleague about the disqualifying offence and had expressed a strong desire to address personal issues at the heart of the matter, associated with balancing work, family and personal life. The Tribunal placed a little more weight on this character reference due to the candid account of the applicant's acknowledgment of her personal affairs and her desire to improve her home environment so that she is rested and supported in managing her responsibilities more effectively. Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1) 1. There is no information relevant to this sub-section. Any other matters that the Children's Guardian considers necessary: s 30(1)(k) 1. There are no further matters to be considered. Conclusion reached in relation to s 30(1)(a)-(k) matters 1. The Tribunal has considered the evidence before it. This includes the information given by the applicant in relation to the application, the information and submissions provided on behalf of the applicant, and the information and submissions made on behalf of the respondent. 2. The Tribunal has taken into account the fact that the applicant pleaded guilty at the earliest possible opportunity and spoke frankly with police, taking them through the steps she had taken in her home on the night of the disqualifying offence. The applicant has shown insight into her offending and the risks that accompanied her action on 9 January 2021. She has expressed deep shame and regret for her irrational and spontaneous decision, and has made active changes to her life so that she has more support to assist her in meeting her parenting responsibilities. She has expressed gratitude to the police for their actions in finding her child and bringing the child to safety. 3. The expert forensic psychologist opined that the offence was out of character and that the applicant presents as a low risk of re-offending, with a number of protective factors in her favour. 4. Having considered the totality of the evidence (consistent with the decision in BKE's case), and the cumulative effect of the matters before us (in line with the reasoning in CYY's case), the Tribunal was satisfied that the applicant had rebutted the presumption that she poses a risk to the safety of children. Section 30(1A) matters on which the Tribunal must satisfy itself 1. Additionally, under s 30(1A) of the Act, the Tribunal could not make an enabling order unless it was satisfied that: 1. a reasonable person 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 any child-related work (the reasonable person test); and 2. it is in the public interest to make the order (the public interest test). 1. Turning first to the reasonable person test, the Tribunal was satisfied that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person on the following grounds: 1. in the opinion of an independent expert forensic psychologist: 1. the applicant is a reasonably well-adjusted individual with adequate psychological functioning and who normally applies sound judgment and decision-making with respect to the care of children, 2. the disqualifying offence was out of character for the applicant and is not reflective of her normal behaviour, 3. the applicant has insight into the vulnerability of children and the risks associated children being left alone, 4. the applicant presents as having a low risk of re-offending, with a number of protective factors in her favour; and 1. we had formed the view that the matters considered under s.30(1) of the Act supported a finding on the balance of probabilities that the applicant presents no real and appreciable risk to the safety of children. 1. With respect to the public interest test, noting that the paramount consideration of the Act must take priority over the private interests of the applicant, the Tribunal was satisfied that the making of an order which has the effect of enabling the applicant to work with children is in the public interest and does not compromise the Act's objectives, on the following grounds: 1. the applicant is qualified to work as a registered nurse and has substantial employment experience which would benefit the public at large if she was given a WWCC clearance and could resume her position at the Hospital; 2. the applicant's right to work in her chosen field is of at least equal importance to the public interest, relying upon the decision in DCY v Children's Guardian [2019] NSWCATAD 27; and 3. as a result of being refused a clearance, the applicant had not been able to return to work in order to support her family and meet existing financial obligations and if this were to become an ongoing impediment it would have a significant economic impact on the applicant, her husband and her young children, as well as potentially create a financial burden on the social security system. Conclusion reached in relation to s 30(1A) matters 1. The Tribunal was satisfied that the applicant met both the reasonable person and public interest tests in ss 30(1A)(a) and 30(1A)(b) of the Act and accordingly we made orders which had the effect of enabling the applicant to work with children. Orders 1. The decision of the Children's Guardian dated 18 February 2021 to refuse to grant the applicant a working with children check clearance is set aside. 2. Pursuant to section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of her conviction on 16 March 2021 (which, on appeal, resulted in the applicant being found guilty but without proceeding to conviction) of the offence of one count of "Abandon/expose child under 7 cause danger of death" being a criminal offence under s 43 of the Crimes Act 1900. 3. Pursuant to section 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children's Guardian is to grant the applicant a working with children check clearance. 4. 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, pursuant to section 64(1) 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. ********** 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 July 2021