Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CFC V Children's Guardian [2016] NSWCATAD 127 Hearing dates: 31 March 2016 Date of orders: 31 March 2016 Decision date: 31 March 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Mullane ADCJ, Principal Member R Royer, General Member Decision: 1: The Tribunal declares that the applicant is not to be treated as a "disqualified person" for purposes of the Child Protection (Working with Children) Act 2012 in respect to the offence under Section 43 of the Crimes Act 1900 of "Exposed Child Under 2 years" of which she was found proved without proceeding to a conviction by the Armidale Court of Petty Sessions on 10 June 1983. 2. The Children's Guardian must grant the applicant a Working with Children check clearance. 3. Publication or broadcast of the name or other identifying information of the applicant or any person who has provided a statement in the proceedings is prohibited Catchwords: Working with Children – disqualifying offence – enabling application. Legislation Cited: Child Protection (Working with Children) Act 2012; Adoption Act 2000; Child Protection Legislation Amendment Act 2015; Adoption Act 2000; Child Protection (Prohibited Employment) Act, 1998. Cases Cited: Commission For Children and Young People –v- V [2002] NSWSC 949. Category: Principal judgment Parties: CFC (Applicant) The Children's Guardian (Respondent) Representation: Counsel: A Douglas-Baker (Respondent) Solicitors: Crown Solicitors Office (Respondent) File Number(s): 1510646 Publication restriction: Per order 3 reasons for decision 1. In early 1983 the applicant left her 6 month old baby daughter in a car unattended whilst she attended to other business nearby. The child subsequently woke and cried. This attracted the attention of a security officer. 2. The applicant was later charged under Section 43 of the Crimes Act, as it then was, with "exposing a child under the age of 2 years, whereby the life of such child was or is endangered, or its health was or is likely to be seriously injured". 3. On 10 June 1983 in the Armidale Court of Petty Sessions, the offence was found proved but without proceeding to a conviction, the Magistrate dismissed the charge. 4. On 25 March 2015 the applicant applied to the Children's Guardian for a Working with Children check clearance under the Child Protection (Working with Children) Act 2012 ("The Act"). 5. The Children's Guardian refused the clearance on 15 October 2015 because of the finding of the Magistrate in 1983 that the offence, which is a disqualifying offence under the Act, was proved. 6. This was a hearing of the enabling application filed by the applicant on 15 October 2015 seeking to have the Tribunal make orders that the offence proved in 1983 rendering her "a disqualified person" for purposes of the Act, be disregarded and that she not be treated as a disqualified person for purposes of the Act and be granted a Working with Children check clearance. Relevant Legislation 1. On 28 September 2015 the Child Protection Legislation Amendment Act 2015 ("the Amendment Act"), which in Schedule 2 set out amendments to the Act, was assented to on 28 September 2015 and provided that it commenced on subsequent dates by proclamation. The first of those proclamation dates was 2 November 2015. The relevant amendments to the Act in the Amendment Act do not apply to this application because they commenced after the application was made (15 October 2015). Also the Amendment Act specifically provided that amendments to sections 16(2), 26 and 30 and Schedule 22 of the Act would not apply to enabling applications filed before the commencement of those amendments (see clauses 16,17,19 and 22 of the Amendment Act). 2. Accordingly the relevant parts of the Act applied as before the Amendment Act amendments and the following discussion proceeds on that basis. 3. Section 4 of the Act provides: "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. Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act. 2. Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 3. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. 4. Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act 2000. It provides in s11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work. 5. Section 12 provides that there are two classes of Working with Children Check Clearances which are: a) Volunteer – authorising workers to engage in unpaid child-related work; and b) Non-volunteer – authorising workers to engage in paid and unpaid child-related work. 1. Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance. 2. Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". Section 4 defines "conviction" as including a finding that the charge for an offence is proved, even though there is no conviction. 3. The Act defines an "adult" as "a person who is 18 years of age or older". The Applicant was an adult at the time of the offence. 4. In para 1(1)(o) of Schedule 2 to the Act, offences under s43 of the Crimes Act, 1900, are included in the specified offences that are disqualifying offences. 5. Accordingly, subsection 18(1) of the Act prohibited the Children's Guardian from issuing a Working with Children Check Clearance to the applicant because of the offence in 1983. 6. Section 28 of the Act provides: 1. The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. 2. The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. 3. A disqualified person may make an application under this section only if: 1. the person has been refused a working with children check clearance, or 2. the person's clearance has been cancelled, because the person is a disqualified person. 1. The Commission is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. 2. An applicant must fully disclose to the Tribunal any matters relevant to the application. 3. If the Tribunal makes an enabling order, the Tribunal may order the Commission to revoke an interim bar or to grant the person a clearance. 4. In any 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. 5. An enabling order may not be made subject to conditions. 6. An appeal lies on a question of law to the Supreme Court by any party to the proceedings. 1. Section 30 of the Act applies and provides: 1. The Tribunal must consider the following in determining an application under this Part: 1. 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, 2. the period of time since those offences or matters occurred and the conduct of the person since they occurred, 3. the age of the person at the time the offences or matters occurred, 4. 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, 5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. whether the person knew, or could reasonably have known, that the victim was a child, 7. the person's present age, 8. the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, 9. the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, 10. any information given by the applicant in, or in relation to, the application, 11. any other matters that the Commission considers necessary. 1. On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal. 1. Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part. Presumption 1. Sub section 28(7) applies a presumption in these proceedings that unless the applicant proves to the contrary, the Applicant/disqualified person poses a risk to the safety of children. Enabling orders cannot be subject to conditions 1. It should be noted that s 28(8) prohibits making of an Enabling Order that is subject to conditions. Disclosure 1. Subsection 28(5) requires the applicant to make a full disclosure to the Tribunal in this hearing of any matters relevant to the application. The Evidence 1. The evidence before the Tribunal comprised: 1. Application filed 15 October 2015; 2. Copy of letter dated 25 September 2015 advising the applicant of the refusal; 3. Copy of applicant's letter filed 10 March 2016 with Applicant's statement dated 15 February 2016 and character references from eight (8) persons; 4. Bundle of documents filed by the respondent on 12 January 2016 with index; 5. Bundle of documents filed by the respondent on 8 February 2016 with index; 6. Exhibit R1 – letter dated 23 November 2015 from Children's Guardian. Seriousness of the Offence with respect to the disqualified person 1. At the time section 43 of the Crimes Act 1900 described the offence in the following words: 2. Whosoever unlawfully abandons or exposes any child under the age of 2 years, whereby the life of such child was or is endangered, or its health was or is likely to be seriously injured, shall be liable to penal servitude for 5 years. 3. At the time of the offence the applicant was 28 years of age and her subject daughter was 6 months of age. 4. The applicant had arranged to meet her husband's uncle at the University of New England to check with him some historical records in the archives. 5. The baby was her 3rd child. The applicant made attempts to obtain a friend or family member to mind the baby without success. She took the baby with her in a bassinet in the car. She parked the car adjacent to the building where she was to meet her husband's uncle. It was a cloudy day and it was not hot. She left the window of the car open and went into the building. 6. Before leaving the child in the car, the applicant had consulted the husband's uncle but he was not able to help her to carry the bassinet to the room they would be in, and assured the applicant that the baby would be safe in the car for a short time. 7. She was away longer than she had intended. When she returned to the car 30 minutes later, the child had been removed. In her absence a security officer of the University had found the baby in the car and removed the baby. 8. There is no evidence of any injury befalling the child. Clearly section 43 would apply to a very wide range of conduct and the Applicant's offending conduct would fall on the less serious end of that 9. The Magistrate found that the offence was not so serious as to require a sanction, and he therefore did not record a conviction. Period of time since the offence occurred and the conduct of the person since the offence 1. It is 33 years since the offence. The police, the courts, the Catholic Schools Office in Armidale and the Departments of Education and Community Services have no record of any other complaint against the applicant. 2. The applicant has been an active carer in her parenting of her 4 children since the offence and before it. She has also been a very active carer in relation to her 4 grandchildren who are now aged 13, 11, 9 and 2 years. She has never on any other occasion left any of her children or grandchildren alone. 3. The applicant and her husband have been farmers and are now partly retired. However, the applicant with each of her children was the primary carer and did not undertake paid work outside the home. 4. The applicant was "devastated" by her arrest, the charge, and the court proceedings. Before the offence she had not known that it was a criminal offence to leave a child in a car in such circumstances. She has never repeated such conduct. 5. The applicant has, over the years, developed extensive skills in the area of lace-making and has established a studio at her home to teach adults and children lace-making. 6. The applicant and her husband have been happily married for 42 years. 7. The applicant has, in the past with other lace-makers, assisted a high school student creating a lace piece as a Major Textiles Project. She has also at her studio assisted other high school students of lace making and their teachers. 8. By her community involvements and assistance to people the Applicant is well respected in the area where she resides. The evidence does not suggest any other blemish on her character. She is a person of excellent character. Age of the person at the time of the offence 1. The applicant was 28 years of age Age of the victim at the time of the offence 1. The victim was 6 months of age. The difference in age of the victim and the person and the relationship 1. 27 ½ years. The victim was the daughter of the applicant. Whether the person knew or could reasonably have known that the victim was a child 1. The applicant knew that her daughter was a child The person's present age 1. The applicant is now 61 years of age. The seriousness of the person's total criminal record and the conduct of the person since the offence(s) occurred 1. The subject finding of the offence being proved is the only criminal matter reported against the applicant and there is no evidence of any type of misconduct by the applicant other than that 1 occasion Any information given by the applicant in relation to the application 1. These matters have already been referred to. Any other matters considered necessary 1. The Children's Guardian does not oppose the application. Does the applicant pose a risk to children? 1. A literal interpretation of ss.28(7), requiring the Applicant to prove that she does not pose a risk to the safety of children, is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children. 2. In Commission For Children and Young People –v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". He held regarding the construction of the section: "One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42] "One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the 'risk' with the words that follow, namely, 'to the safety of children'. 1. The Applicant's conduct during her 61 years is devoid of any other offence against a child or any abuse of a child. That is in accord with the evidence as to her character and her conduct generally. 2. When the evidence is taken together it is clear that the applicant does not pose a real or appreciable risk to the safety of any child. Orders 1. Accordingly, the applicant has satisfied the onus to prove that she is not a risk to children and the enabling orders should be made. 2. The orders therefore are: 1. The Tribunal declares that the applicant is not to be treated as a "disqualified person" for purposes of the Child Protection (Working with Children) Act 2012 in respect to the offence under Section 43 of the Crimes Act 1900 of "Exposed Child Under 2 years" of which she was found proved without proceeding to a conviction by the Armidale of Petty Sessions on 10 June 1983. 2. The Children's Guardian must grant the applicant a Working with Children check clearance. 3. Publication or broadcast of the name or other identifying information of the applicant or any person who has provided a statement in the proceedings is prohibited. 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: 12 June 2018