Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DGH v Children's Guardian [2018] NSWCATAD 130 Hearing dates: 26 February 2018 Date of orders: 25 June 2018 Decision date: 25 June 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member R Royer, General Member Decision: (1) The respondent's decision made on 19 October 2017 to refuse the applicant's working with children check clearance is set aside. (2) In substitution for that decision a decision is made to grant the applicant a working with children check clearance. Catchwords: CHILD PROTECTION – working with children check clearance – whether applicant poses a risk to the safety of children - Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) and other Child Protection Legislation 2016 (NSW) Commission for Children and Young People Act 1998 (NSW) (Repealed) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Working with Children Act 2005 (Vic) Cases Cited: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BSR v Office of the Children's Guardian [2015] NSWCADTAD 264 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 CTM v Children's Guardian [2016] NSWCATAD 280 CZZ v Children's Guardian [2018] NSWCATAD 56 Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 FZ v Commissioner for Children and Young People [2010] NSWSC 1144 Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162 M v M [1988] HCA 68; (1988) 166 CLR 69 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 Re: A Foster Carer v Department of Family & Community Services [2017] NSWDC 360 ZZ v Secretary, Department of Justice [2013] VSC 267 Category: Principal judgment Parties: DGH (Applicant) Children's Guardian (Respondent) Representation: Counsel: B Lowson for the Respondent Solicitors: B McEwan of Clayton Utz for the Applicant NSW Crown Solicitor File Number(s): 2017/00345532 Publication restriction: Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal.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. The applicant, DGH, seeks administrative review of a decision of the respondent, the Children's Guardian, to refuse his application for a working with children check clearance (WWC clearance, or clearance): see Child Protection (Working with Children) Act 2012 (WWC Act) (NSW), s 18(2) and s 27(1). The applicant is 40 years of age and he seeks a WWC clearance so that he can continue to coach the football team of his young sons. 2. The applicant applied for a clearance in February 2016. 3. In 2007, the applicant pleaded guilty and was convicted of an offence of maliciously inflicting grievous bodily harm. He was sentenced to three and a half years imprisonment, with a 1 year and nine month non-parole period. The victim of the offending conduct was not a child. 4. The offending conduct of which the applicant was convicted occurred in June 2003, when the applicant and his co-accused, Mr A and his son, were charged with a number offences over the violent assault of a 58 year old man who was a relative of Mr A and his son. Initially, the applicant, Mr A and his son were each charged by police with an offence of attempted murder (Crimes Act 1900 (NSW), s 18), an offence of causing grievous bodily harm with intent to cause grievous bodily harm to the victim (Crimes Act, s 33) and an offence of kidnapping (Crimes Act, s 86(1)(b)). 5. It was the fact of the applicant having been charged with the offence of attempted murder, which required the respondent to undertake a risk assessment of the applicant in the course of assessing his application for a clearance: see WWC Act, ss 14 and 15 and Sch 1, cl 1(1)(b). However, this charge was not pressed further by the NSW Director of Public Prosecutions who indicted the applicant, Mr A and Mr A's son on a charge of causing grievous bodily harm with intent to cause bodily harm to the victim. 6. In 2005, Mr A and his son were each found guilty and convicted of the offence charged and sentenced to 12 years imprisonment, with a nine year and ten month non-parole period. 7. The applicant, who was found not to have the same intent or participation in the offending conduct as Mr A and his son, was found guilty and convicted of the statutory alternative to the offence charged, namely the offence of maliciously inflicting grievous bodily harm: see Crimes Act, s 33(3). The applicant was sentenced to three and a half years imprisonment, with a one year and nine month non-parole period. 8. In 2006, the applicant and his co-accused were successful in having their convictions overturned by the NSW Court of Appeal. However, the Court of Appeal made an order that the applicant and his co-accused be re-tried. 9. In 2007, prior to his re-trial the applicant pleaded guilty to the offence of maliciously causing grievous bodily harm. He was again sentenced to three and a half years of imprisonment. At the time of his conviction in 2007, the applicant had already served most of his non-parole period in custody. 10. We have dealt with the applicant's other offending below, but his 2003 offending is the most serious of his offending. His most recent offending, an assault, in 2015, was committed at a time he was suffering from the loss of his father. 11. On 5 May 2017, having regard to the applicant's criminal record the respondent issued the applicant with a Notice of Interim Bar and Proposed Refusal of Application. On 19 October 2017, having completed her risk assessment, the respondent determined to refuse the applicant's application for a clearance as she was satisfied that he posed a risk to the safety of children: see WWC Act, ss 18(2). 12. It is accepted that the Tribunal has jurisdiction to hear and determined the applicant's application: see Administrative Decisions Review Act 1997 (NSW), s 9 and WWC Act, s 27. The role of the Tribunal in this application is to determine the correct and preferable decision having regard to the material before it and the applicable law: see Administrative Decisions Review Act, s 63(1). 13. In this application, the primary issue for determination is whether, having regard to the matters in s 30(1) of the WWC and the material before us, we can be satisfied that the applicant poses a real and appreciable risk to children if he were granted a clearance to work in child related-work: see WWC Act, s 18(2). If we are not so satisfied, before we can make an order setting aside the decision of the respondent, we must also be satisfied of the matters in s 30(1A) of the WWC Act; namely, 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 respondent contends that her decision is the correct and preferable decision and should be affirmed. The applicant regrets what he has done in the past and acknowledges he has not been the perfect father for his children. He contends that he has never harmed a child and is not a risk to the safety of children and seeks to have the decision of the respondent set aside and an order that he be granted a clearance. The applicant submitted that with the help of his treating psychologist and the support of his wife and community he has left his past behind. He has been trying hard to be a better father and husband and he has participated more within his community. 2. While we understand the concerns of the respondent, for the reasons that follow, having carefully considered all the material before us, and the applicable law, we find that the decision of the respondent is not the correct and preferable decision. That is, we are not satisfied that, as at the date of the hearing, the applicant poses a real and appreciable risk to the safety of children. We found that the applicant was a credible witness. He accepted that his 2003 offending was serious and he accepts that in the past he has made poor choices. Since his 2015 offence, the applicant has been undergoing counselling to which he has responded well and has made a commitment to continue with counselling. He has reduced his consumption of alcohol significantly and has the support of his wife and wider community, including the local football club. For the purpose of these proceedings, Dr Wagner, a clinical psychologist with 40 years experience, independently assessed the applicant for the purpose of these proceedings and formed the view that the applicant did not pose a risk to children. 3. We are also satisfied that a reasonable person, if also given the benefit of having heard from the applicant and the information that is before us, would allow his or her child to have direct and unsupervised contact with the applicant in a child-related context. We are also satisfied that it is in the public interest to make the orders sought. The WWC legislative scheme 1. The objects of the WWC Act are to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: see WWC, s 3. 2. Section 4 of the WWC 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 that Act. 3. The word "children" is defined in s 5(1) to mean persons under the age of 18 years. Consequently, the word "child" has the same meaning. 4. The term "child abuse" is not defined in the WWC Act and should be given its ordinary meaning, including physical injury, sexual abuse and emotional, or psychological harm. 5. Subsection 8(1) of the WWC Act prohibits a person from engaging in "child-related work", unless: 1. the person holds the relevant working with children check clearance; or 2. there is a current application, by the person, to the respondent for the relevant working with children check clearance (i.e. a clearance). 1. Subsection 9(1) contains a similar prohibition on an employer from employing, or continuing to employ a person, in child related work where the employer knows, or has reasonable cause to believe, that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance. 2. Child-related work is very broadly defined in ss 6 and 7 of the WWC Act. It is accepted that the applicant requires a clearance in order to coach junior football teams. 3. A clearance is not granted for a specific category of child-related work. Once granted, it is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27]. 4. Section 18 prescribes how the respondent is to determine an application for a clearance. That section relevantly provides: 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) 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, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. (3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3. 1. The applicant is not a "disqualified person" for the purpose of this application. However, as we have noted above, the applicant having been charged, in 2003, with an offence falling within Sch 1, cl 1(1)(b) of the WWC Act (i.e. a "trigger event") the respondent was required to conduct a risk assessment under ss 14 and 15 of the WWC Act. Being satisfied that the applicant posed a risk to the safety of children, the respondent was required, under s 18(2), to refuse the applicant's application for a clearance. 2. The Tribunal has accepted that the word "risk", in the context of the WWC Act, should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949, at [42]. That meaning was in the following terms: "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 word "risk" with the words that follow, namely, "to the safety of children." 1. As we have already noted, in determining whether we can be satisfied that the applicant poses a risk to the safety of children we must have regard to the matters prescribed in s 30(1) of the WWC Act. If we are not so satisfied we must have regard to the matters prescribed in s 30(1A) of the WWC Act, before we can make the orders sought. We have dealt with the s 30 matters below. Evidence 1. At the hearing of this application the applicant tendered into evidence the following material: 1. an affidavit sworn by him on 11 January 2018; 2. a statement from the applicant's wife dated 11 January 2018; 3. a letter dated 23 January 2018 from the applicant's current treating psychologist; 4. an expert report of Dr Renata Wagner, clinical psychologist, dated 18 January 2018; 5. six character references in support of the applicant, dated between late November 2017 to 10 January 2018; and 6. fourteen letters of support for the applicant, including letters of support from parents of children who had been coached by the applicant, the secretary of the football club for which the applicant coached the young players, a church friend and also a friend who is an Aboriginal chronic care nurse. 1. The applicant and Dr Wagner also gave oral evidence at the hearing and were cross-examined by counsel for the respondent. 2. The respondent relied on three bundles of documents, which contained the s 58 documents (including the material the applicant had provided to the respondent in support of his application), copies of documents received by the respondent pursuant to requests made under s 31 of the WWC Act, and copies of documents produced pursuant to a summons, issued by the Tribunal, at the request of the respondent, concerning the applicant's mental health and the assessment/treatment thereof. 3. Both parties filed and served written submissions, which we have had regard to in determining the applicant's application. Background- the applicant's evidence generally 1. The applicant was born in Sydney. His mother left shortly after he was born. After his mother left, when he was very young, his father moved him and his siblings to an aboriginal reserve in country NSW. When he was 6 years of age the applicant and his siblings were removed from the care of their father and were made wards of the state. The applicant and his siblings were split up. The applicant was placed with strangers in another country town within NSW and then placed in a number of foster homes. During this time he was exposed to violence and alcoholism and only saw his father from time to time when he went back to the aboriginal reserve. 2. When he was about 8 years old, the applicant was placed in the care of his aunt and uncle who also treated him very poorly. He said that this was one of the worst periods in his life. When he was 14 years of age he ran away from home and lived rough, sleeping on friend's couches, bus shelters or in cars during his adolescent years. He said he became distrustful of authority figures and had a number of interactions with the police as a juvenile offender and a young adult. He said he was not proud of his criminal history. 3. In 1996, the applicant met his first wife when he was 18 years of age. They were both living on the same aboriginal reserve and married 3 years later. The applicant and his first wife have seven children together now aged 19, 18, 17, 14, 12, 10 and 9. He and his first wife continued to live on the aboriginal reserve and were always exposed to alcohol and drugs. The applicant said that now, when he looks back, he recognises that he drank far too much for a young man. 4. Shortly after the applicant married his first wife he started working on the Railways. His job meant that he was away from home for extended periods of time and his first wife was left to take care of the kids. 5. In 2003, when he was 25 years of age the applicant was involved in the trigger offence which gave rise to the risk assessment conducted by the respondent. We have dealt with that offence in more detail below. However, in his affidavit, the applicant said that he now recognises that his conduct was life threatening to the victim and caused him irreversible harm. He said: "If I could go back and change my actions I would. …these are not parts of my life that I am proud of but I take responsibility for my actions and have served my time." 1. The relationship between the applicant and his first wife broke down around 2009. They were divorced about a year later, but he still has ongoing contact with her as they share parenting responsibilities for their children. 2. The applicant started a relationship with his second wife shortly after separating from his first wife. They also met at the aboriginal reserve but decided to move to the Sydney region shortly after they met and build a different life. They married in 2014 and have two children together who are now aged 6 and 5. His second wife also has three children from a previous relationship who are aged 12, 10 and 8 and live with them. 3. When they first moved to Sydney it was difficult for them to find a home so for about a year his second wife and the children lived in temporary accommodation. As men were not permitted to stay there, he slept in his car close by and later in a caravan down the road. The applicant said he tried to stay as close as possible to his family so that he could still see them, but he was constantly travelling long distances for work. Eventually they were able to move into private rental accommodation and at the start of 2016 they were given a Department of Housing property in which they have remained. 4. The applicant's children of his first marriage also come to live with him from time to time. 5. In 2015, the applicant reconnected with his father who was in the very late stages of cancer. He said that while his father had not been around while he was growing up he wanted to help him and get to know him as he only had a few months to live. Ultimately, the applicant's father came to live with him and his family and the applicant quit his job so that he could take care of him full time. 6. To care for his father, the applicant converted their double garage into an extra bedroom for his older daughter so that there was room for his father in the main house. The applicant slept by his father's side most nights on a lounge. His father died a few months later and the applicant said that his death was an incredibly traumatic experience for him. He said he felt very alone and like he had no one. He did not know how to deal with his emotions, as he felt very conflicted about getting to know his father and then having him taken away from him. 7. It was not only a stressful time for him, but also for his family both emotionally and financially. 8. In December 2015, after his father had died, his palliative care nurse could see that the applicant was struggling to cope with the loss of his father. At her suggestion he started counselling sessions. 9. With the assistance of counselling, the applicant has focused his attentions on being the best father and husband that he can be and also giving back to his community. In January 2016 he started attending church with his wife and their children. As part of the pastoral care provided by the church, the applicant took part in a seven-week marriage counselling course and a men's program. He said he does not regularly drink and does not smoke in the house or around the children. 10. The applicant now works full time and enjoys his job which involves leading a team and mentoring younger staff members. He now engages with his community and has very much enjoyed coaching the young boys of his local football club. He was asked to do this in 2016 and continued to do so until the respondent issued him with an interim bar. 11. The applicant said that with the benefit of time and engagement of counselling he feels able to talk about some of the traumas he experienced in his childhood. He said it was not his natural inclination to ask for help. However, having suffered as a child he wanted to do what he could to ensure that other children do not have a similar experience. He acknowledged that he had not been a perfect father to his own children, but he was doing everything that he could to be better in the future. 12. He said he has not had an easy life and is not proud of all his choices. However, his experiences have shaped him and helped him realise what his main priorities are, namely to be the best person that he can be for his family and community. He said being involved in the football club and the church has given him a strong sense of purpose and has made him realise it is okay to reach out and trust other people. The trigger offence 1. As we have already noted, the conduct that is the subject of the applicant's trigger offence occurred in June 2003. 2. In sentencing the applicant in March 2007, the District Court Judge explained that on the night in question, the applicant together with his friend and the father of his friend, Mr A were looking for the victim who was related to them. The victim had known Mr A for 28 years and Mr A's son for his entire life. 3. At about midnight on the night in question Mr A, his son (the applicant's friend) and the applicant knocked on the door of the home where they thought he might be. It was the applicant's friend who knocked on the door and he was told that the victim was not there and had gone another person's home. When they got to the other person's home, the applicant knocked on the back door and asked if the victim was there. He was told that he was there and he went into the home, where the victim and his friends had been drinking. The applicant told the victim that Mr A wanted to see him. In the meantime, Mr A and his son (the applicant's friend) also entered the house and Mr A was seen to kick the victim in the nose. Mr A, his son and the applicant then left the house by the front door and a short time later the victim's friend went to look for the victim but found he was not there. However, he saw a quantity of blood in the vicinity of the front door of the home. That blood was later found to be comparable with the DNA profile of the victim. 4. A witness who was walking along an adjoining street to the home of the victim's friends at around this time gave evidence and said she saw two men attacking someone lying on the ground. She said she saw the two men kicking the person lying on the ground and that there was a third person standing nearby. The witness said that as the two men were kicking the victim they repeatedly said, "kill him, kill him". The victim recognised the voices as being those of Mr A and his son. 5. The following morning, at around 7:00am, the victim was found by a local resident laying on a roadway at the entrance to the local tip. He had suffered a closed head injury and as a consequence had no memory of the events in question. He was found lapsing in and out of consciousness. He told the person who found him that Mr A, Mr A's son and the applicant had assaulted him. The victim was admitted into intensive care and incubated. He was found to have an acute chronic subdural haematoma. He underwent surgery to drain the haematoma and remained in intensive care for four days. As a result of the attack the victim suffered brain damage and now lives in a nursing home. 6. The applicant also has a number of driving and other offences. We have dealt with these below. Consideration Applicable Legal Principles 1. The applicant is not a "disqualified person" and there is no statutory presumption that he poses a risk to the safety of children: see WWC Act, s 28(7). 2. This means that the general principle of administrative law applies in that neither party bears a burden of proof in establishing that the decision of the respondent was, or was not, "the correct and preferable" decision: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]–[40]; BSR v Office of the Children's Guardian [2015] NSWCADTAD 264 at [17] and BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]. 3. However, where a party raises a specific fact for consideration "a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge": see Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 at [18]. 4. Where a matter requires proof, regard should be had to the principles set out in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at p362: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [33]. That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 at [15] per Dean J; BSR (supra) at [18]; BJB (supra) at [32] and Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 at [23]. 5. In BKE (supra) at [30], His Honour Justice Beech-Jones said, where there are allegations of sexual abuse by an applicant for a clearance, significant guidance as to the approach to be adopted when considering the allegation and risk can be derived from the High Court's decision in M v M [1988] HCA 68; (1988) 166 CLR 69. His Honour went on to say at [33]: "... [it] may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. 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." 1. It is accepted that the approach to be taken by the Tribunal on review (as it was for respondent below) is to first consider the evidence in the context of the matters in s 30(1) of the WWC Act and determine the issue of risk (whether the applicant poses a real and appreciable risk to children): see CTM v Children's Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] and ZZ v Secretary, Department of Justice [2013] VSC 267. If not satisfied as to risk, the Tribunal must then go on to consider the matters prescribed in s 30(1A) of the WWC Act. 2. Finally, the jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work. Consideration of the s 30(1) factors (a) Seriousness of the matters that caused a refusal of the applicant's application for a clearance 1. An offence of attempted murder is extremely serious. However, the applicant did not stand trial for such an offence. Instead he was initially found guilty and convicted of an offence of maliciously inflicting grievous bodily harm. Subsequently he pleaded guilty to that charge, which on the material reflects his culpability in the events of June 2003. The applicant does not contend otherwise. 2. As pointed out by the respondent, while the applicant was not seen hitting the victim, it was he who knocked on the door of the house where the victim was present. It was this knock on the door that gained his entry into the house and that of Mr A and his son. In his evidence before the Tribunal the applicant said he did not touch the victim. He explained that at the time he saw Mr A as a father figure and followed him around. He said that at the time there was a dispute between Mr A and the victim. 3. In our opinion the applicant's offending was nevertheless serious and we agree with the following remark of the sentencing trial Judge, in 2007: "…I view these [facts] in a very serious light." 4. However, as noted by the Trial Judge when re-sentencing the applicant, the trial Judge said that the applicant had shown considerable remorse for what he had done and that he had "demonstrated some progress towards rehabilitation in that upon his release to parole he has not come under notice for any other offending." It was noted that the applicant had obtained employment and his employer and work colleagues had provided positive references for him. 5. In her written submissions the respondent noted that there were other matters that were relied upon by her in refusing the applicant's application for a clearance which were also objectively serious. 6. In this regard the respondent relied on an incident that occurred on 27 December 2015 and the applicant's conviction of an offence in August 2014 of driving a motor vehicle during a disqualification period. In regard to the latter offence, the applicant was sentenced to imprisonment for 12 months. However, the sentence was suspended on the applicant entering a bond for a period of 12 months. The applicant was also disqualified from holding a licence for 2 years. He has regained his licence since then and he has no further convictions of this kind. However, this was not the first driving offence of which the applicant was convicted. We have dealt with this offending below. 7. As a result of the 27 December 2015 incident, the applicant was charged with common assault, property damage and domestic violence intimidation. This offence occurred not long after the applicant's father had died. 8. The Police Fact Sheet in regard to this incident states that, during the day in question, the applicant had been drinking all day. He then went to see a neighbour where he consumed more alcohol. At about 11:30pm he returned to his home, where his wife and children were, including some of his children from his first marriage. He entered the kitchen to make something to eat when a verbal argument started between the applicant and his wife. The applicant then walked into the back room of their home and laid on a mattress where his daughter, aged 16 and son, aged 12, were watching TV. The applicant's wife also walked into the back room and asked the applicant what the sleeping arrangements were for the children, being the children from his first marriage. The applicant became angry and screamed at his wife. They both stepped out of the back room and the applicant walked into the bathroom followed by his wife. The applicant continued yelling at his wife telling her to get out of the house before she gets hurt. During their argument, the recent loss of the applicant's father was raised. The applicant became very angry and walked out of the bathroom and punched a hole in the wall adjacent to the bathroom entry. He then walked outside of the house and his wife called the local police station. 9. On the basis of expert evidence from a psychiatrist, the charges laid against the applicant were dealt with under the mental health sentencing provisions and the applicant was ordered to undergo treatment for grief and other issues. 10. As we have already noted, in his oral evidence the applicant explained that 2015 had been a very stressful time for him, not only because of his father's illness and death but also with the difficulties of not having a job and having his children from his first marriage having decided to come and live with him. 11. In her statement the applicant's wife said that the applicant had not at any stage physically assault her during the December 2015 incident. Nor did she believe that the applicant posed any danger to their children at that time. She said the younger children were all asleep and unaware of their altercation. She said the applicant's children had also not witnessed anything (including punching the wall) as they were still in the back room watching a movie. 12. The applicant's wife also said that following the incident police had advised her that an interim apprehended violence order (AVO) would be placed on the applicant as a result of what had occurred. However, when contacted again by police some time after the incident and asked whether she wished to pursue the AVO she said no. 13. In his oral evidence the applicant explained that he and his wife separated for a short period of time with his wife moving out of their home with the children to live with a relative. We understand from the evidence of his wife that she had not understood that the interim AVO meant that the applicant could not live in the same house as her and the children and when she realised this she did not wish to pursue the AVO further. 14. We accept that the applicant's ongoing offending in 2014 and 2015 is of concern. It is his 2015 offending which concerns us more as it involved some violence. However, the circumstances giving rise to that offending differs considerably to what had occurred twelve years prior to this, in 2003. (b) The period of time since those offences or matters occurred and the conduct of the person since that time 1. The 2003 offending occurred almost 15 years ago. As pointed out by the respondent the applicant's conduct since that time has included ongoing and frequent interactions with the criminal justice system, an apparent disregard for road safety rules, periods of deterioration in his mental health, alleged excessive physical chastisement of his teenage daughter and the alleged neglect of his other children. 2. The applicant accepts that he has many driving offences. However, as we have already noted, since 2016 he has had a full licence with no further offending. In regard to his mental health, the applicant said that he now understands that he has mental health issues that need to be addressed. He said he has been very grateful for the assistance his treating psychologist has given him and he intends to continue with that treatment. 3. The applicant's wife also said that she has seen many benefits from the applicant attending counselling since his father's death. She said he always comes home looking happy after having been to counselling. 4. In regard to the alleged physical chastisement of his teenage daughter, the applicant explained that boundaries were never kept on him as a child while he lived at the reserve. Nor were there boundaries placed on his children while he was living with his first wife. This was the nature of living on a reserve he said. He said he knows he has never been the best of fathers but he has always loved his children and has provided for them when he was there. He said that he often travelled with his job and while he sent money home he had no control of what his first wife was doing. (c) The age of the applicant at the time the offences or matters occurred 1. As we have already indicated, the applicant was 25 years of age at the time of the trigger event. He was 37 years of age in 2015, when he was charged with assaulting his wife. (d) The age of the victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim 1. The victim of the trigger event was 58 years of age at that time. As pointed out by the respondent, the victim had consumed a large amount of alcohol and asleep at the home of a friend when the applicant and his co-offenders woke him and took him outside on the night in question. (e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person 1. The victim of the trigger event was 33 years older than the applicant and was known to him as an acquaintance. (f) Whether the person knew, or could reasonably have known, that the victim was a child 1. The victim was not a child. 2. There is no evidence that the applicant has ever committed an offence that involved a child. The applicant said that he is not proud of his criminal history, but again stressed that he has never physically harmed a child. (g) The person's present age 1. The applicant is 40 years of age. (h) the seriousness of the person's total criminal record and the conduct of the person since the matters occurred 1. Prior to June 2003, the applicant had been charged or found guilty of a number of offences. These included robbery in company (January 1996), stealing and malicious damage (February 1996), assaulting police while in custody (May 1996), and common assault (August 1999). He was also the subject of a number of police reports, some of which he was aware and denied and others of which he had no knowledge until these proceedings. 2. The applicant was also found guilty of a number of traffic offences between November 1995 and December 2002. In 2000, the applicant was convicted of a mid range PCA offence and driving while disqualified. In May 2001 and December 2002, the applicant was again convicted of the offence of driving while disqualified. His 2002 offence also involved a high range PCA offence. 3. Since 2003, the applicant committed further traffic offences. The most serious of these occurred in August 2007, April 2012 and August 2014. In August 2007, the applicant was convicted of a high PCA offence and driving while disqualified. He was sentenced to two years imprisonment which was suspended upon him entering a two year good behaviour bond. As this offence was committed while he was on parole for his 2003 offending, he was also made subject to two years supervision parole service until May 2010. The remaining offences were for driving while disqualified and in August 2014 he was again sentenced to 12 months imprisonment which was suspended upon him entering a 12 month good behaviour bond. His licence was disqualified for 12 months. 4. The material obtained by the respondent from the Department of Family and Community Services contained an allegation that the applicant and his first wife were drinking and had neglected their children and that the applicant had hit his eldest daughter with a strap. Again, these were allegations the applicant was unaware of until these proceedings. 5. The respondent submitted that the applicant has a significant criminal record and of particular concern was his history of violence. The respondent acknowledged that whilst these incidents were confined to a period prior to the trigger event, they were nevertheless indicative of how the applicant reacts when he finds himself in a situation of extreme pressure. He resorts to alcohol and then engages in violence as he did in 2003 and again in 2015. 6. The respondent also submitted that while a person's driving record is usually of minimal relevance to proceedings such as these, in this case, the applicant's driving record was intrinsically linked to his criminal conduct and other conduct of concern. The applicant's apparent reckless disregard of road rules being there to protect all members of society was also of concern. 7. The applicant submitted that his adult criminal history does not demonstrate a pattern of violent or aggressive behaviour. The only exception to this is his 2003 trigger offending where he did not actually perpetrate any violence on the victim. Yet he accepts full responsibility for what he did do. The events of December 2015, he said, arose at a time he was experiencing symptoms of mental illness following the death of his father. 8. In regard to the other allegations raised in the material obtained by the respondent, the applicant noted he was unaware of these, which were not investigated further. Nor had he been charged or cautioned in regard to any of these. Most of the allegations also predated his relationship with his second wife and their move to Sydney and are of no relevance to his life now. 9. In our opinion, leaving aside the 2003 offending, overall the applicant does not have a very serious criminal record. Nevertheless, it is of concern that he commenced offending at a very young age and has come to the attention of police whether it be for driving offences or otherwise since that time. At the same time, we accept that there have been periods where he has not come to the attention of the police and this is particularly so in recent years since he has been in a relationship with his current wife and left the reserve. (i) The likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition 1. The applicant submitted that he was unlikely to re-offend as he had in the past because his life has changed. He submitted that he now lives in a very stable relationship with his second wife, he has a job and has been undergoing counselling and has the support of his family, his church and the local football club. He has developed positive family and community relationships and is trying to be a better father. He also understands his responsibilities and obligations as a football coach of young children and has completed a NSW Sporting and Recreation "Play by the Rules" online child protection course. 2. In his 2016 report to the Local Court in regard to the applicant's 2015 offending, the applicant's treating psychologist said that the applicant had engaged very actively in therapy and that he had made significant gains. He said he had assisted the applicant to process, understand and move through several past traumas and grief and loss issues. He said the applicant had developed new coping strategies to better manage and respond to stressful situations. He said the applicant was no longer suicidal and was planning to return to work again. He also noted that the applicant had created new and safer boundaries around some of the relationships that he still has with the children from his previous marriage and that he had expressed an interest in continuing therapy to consolidate the gains he had made. 3. The applicant did and has continued to attend therapy with his treating psychologist and intends to continue to do so as he has found them very beneficial. His treating psychologist said that the applicant had responded well to treatment and was committed to continuing with that treatment. 4. Dr Wagner, a clinical psychologist with more than 40 years of experience in the field of psychology, assessed the applicant in January 2018. In her report of that assessment, Dr Wagner noted that the applicant looked younger than his stated age. She said his affect during her assessment was initially somewhat flat, however the applicant became more animated later in the interview, particularly when he talked about his children. She said his answers to her questions were to the point and delivered with equanimity. She said there was no discernible thought disorder present and he displayed insight and common sense. 5. Dr Wagner said the applicant's scores for anxiety, stress and depression during her psychometric assessment were all found to be in the non-clinical range. She also found that his impulsivity rating was in the low spectrum. 6. Dr Wagner said that while the applicant would in the past have met the criteria for Anti-social Personality Disorder under her diagnostic assessment he did not fulfil all the necessary criteria now. Dr Wagner indicated that this change had been continuing for the last 5 years. She noted that up until 2015 applicant still failed to conform to social norms (such as his driving offences) and can be irritable and aggressive (see AVO). However, she also noted that the applicant shows remorse for his past criminal behaviour, his response with regards to work and financial obligations. She said he can plan ahead and has not been accused of lying to others and deceiving them. 7. In her report, Dr Wagner responded to two questions that were asked of her. The first question was whether, in her opinion, the applicant posed an unacceptable risk to the safety of children. She responded by saying "he did not" pose such a risk in her opinion. 8. She said she based that opinion on the latest literature as to risk assessment which is broken up into assessing static risk factors and dynamic risk factors. A static risk factor is one that cannot be changed such as a history of violence, severity of victim injury, age of first offence, problems at school etc. A dynamic risk factor she said is a variable that influences the likelihood that the behaviour will or will not occur and that can therefore change the risk of re-offending. She said in the applicant's case the static risk factors are well documented in his history of violence, his childhood of trauma, neglect and physical abuse. The dynamic and protective factors in favour of the applicant were identified as follows: 1. long lasting relationship with partners and children; 2. relative stability with regards to work; 3. positive relationship within the community (for example the parents and children in the rugby team); 4. his pro-social behaviour in becoming coach for a group of children and attending a number of courses to make him fit to do so; 5. his and his wife's connection to their church; 6. his positive relationship with his own children; 7. no excessive drinking since his altercation with his wife at the end of 2015; and 8. the applicant's attendance and response to psychological treatment. 1. The second question asked of Dr Wagner was divided into three parts. The first part was whether in her opinion there was a likelihood of the applicant engaging in behaviour that was a risk to children. Dr Wagner said that in her opinion it was unlikely that he would engage in behaviour that was a risk to children. She said that not having ever been a risk to children, he was not likely to pose a risk in the future. She said that the applicant had coached a group of under 6 year olds for more than a year before he was required to stop and there had not been one complaint about him. This and the written referees reports from the parents of these 6 year olds provided strong support for her opinion. She also said this was also indicative of stability of mood and impulse control by the applicant. 2. Dr Wagner was also asked whether there were other factors that might be relevant to the issue as to whether the applicant poses a risk to the safety of children. Dr Wagner's response was that the applicant does not suffer from any personality disorder or other psychological disorder. However, she did recommend that the applicant have regular (i.e. monthly or bi-monthly) meetings with a counsellor or GP who can help him to deal with any potential stresses in his life. 3. During cross-examination, Dr Wagner said it was not unusual for a client to stop treatment. It was normal in any clinical practice. She said her experience was that even though a person does not avail themselves of assistance when needed there always comes a time when they do want to change and she believes that the applicant had come to that point in 2015. 4. Dr Wagner also said she would distinguish the driving offences and the 2015 domestic violence offending. The latter she said was a single incident resulting from his depressive condition and it was not part of the applicant's overall character. It was caused by the underlying grief following his father's death and she believes that he has now dealt with this. The most major stressors in his life now would be if his biological children came to live with him and his second wife. She said the applicant's older daughters do not get on with his second wife. She said that the applicant nevertheless has no problem with his adult children. There will always be situations where they are either up or down. She said that in her opinion the applicant had shown great strength in reducing or stopping his drinking. She said he had plans for the future, he has a house and a job. He is very insightful and she was of the opinion that he would deal with any stressors that would arise. 5. Dr Wagner went on to say that the applicant used to feel worthless and now feels valued and he appears to be respected by his children. 6. Counsel for the respondent explained to Dr Wagner that the respondent was concerned about how the applicant would react in the future if his wife left him again as she had in 2015. Dr Wagner responded by saying that she believes he is less likely to return to drinking should this occur as he had learnt a lot. She also said that it was understandable that the applicant would minimises his offending as he is looking to the future. 7. In regard to the applicant having used a belt to discipline his daughter, Dr Wagner agreed that this was unacceptable but also went on to say that this was a one-off event and there was no pattern of such behaviour having occurred. 8. Dr Wagner said that notwithstanding the trigger event of 2003, she believed that the applicant was a pro-social man particularly now and he had the confidence that he could work with children. 9. Dr Wagner was asked how the applicant would react or cope with a situation where an allegation was made that someone had assaulted one of his children. This question was asked in the context of what had occurred in 2003, which was categorised as a form of payback. Dr Wagner responded that one could not say, but nevertheless accepted there would be many future stressors in the applicant's life. However, she reiterated that the applicant appears to have a good relationship with his children including the child that was adopted after his birth and that he was unlikely to harm children if exposed to future stressors such as those described by the respondent. 10. Dr Wagner acknowledged that giving the applicant a clearance was important to his ongoing mental health. However, she acknowledged that she would be more comfortable with her recommendation if the applicant continued to follow through with ongoing treatment for his mental health well being. 11. As noted by the respondent in her written submissions, it is the role of the Tribunal to make its own assessment of whether the applicant is likely to re-offend as he has before and if so what impact would that have on children. 12. In our opinion, having had the benefit of seeing the applicant give evidence and be cross-examined by counsel for the respondent we share many of the opinions expressed by Dr Wagner. For example we found the applicant to be a very open and forthright and did not shirk away from what he had done in the past, including his excessive drinking. He is ashamed of his past and now has a better understanding and insight into his past conduct, including any unacceptable conduct towards his own children, and the effect it has on others. We are also satisfied that he understands the need for ongoing counselling and the consequences that may follow if he fails to do so. 13. Accordingly, on the material before us, in our opinion, the likelihood of the applicant behaving in a manner he behaved in 2003 and 2015 is unlikely. The circumstances giving rise to his 2015 offending is unlikely to re-occur as he is now aware of the need to seek help when stressed and anxious. The 2003 offending is also unlikely to re-occur given the changes he has made in his life since leaving the reserve and slowly making a new life in Sydney. The most dramatic changes having occurred in the last four years when he has undergone counselling, joined his wife in attending her church and volunteering to be a football coach of his son's football team, which is the reason why he has sought a clearance. (j) Any information given by the applicant in, or in relation to, the application 1. In her statement, the applicant's wife explained that during the time the applicant was looking after his father she saw a gentle, caring, compassionate and responsible side of him that was very admirable. She said that their family is a large and blended one, which can present challenges for them both as they manage children of different ages, needs and temperaments. She acknowledged that they had struggled financially at times which had placed strain on their family. However, she believed that their home was a safe and happy one and that the applicant was putting a lot of effort into being a good father to all their children. He was steady a full time worker and their current family dynamic was positive. 2. She explained that in 2015 the applicant was contacted by the local football club to take on the role of coach for the under 6 teams. She said, initially the applicant hesitated but she encouraged him to take on the role. She said that it was clear to her from the outset that the applicant received a large amount of satisfaction and fulfilment from coaching. 3. She had never seen him as passionate about anything as he was about coaching the under 6 teams. His new role had a positive effect on his behaviour and personality and increased his sense of self-worth and improved his interactions within their family. While the applicant was coaching she acted in the role of manager for the team and attended training sessions, games and other club functions. During these times she saw the applicant interacting with the players, the parents, match officials and club administrators on countless occasions. She said the applicant took his role very seriously and at all times acted in a way which she considered appropriate. 4. She explained that the applicant continued in his role as coach until he was notified of the interim bar when he immediately stopped. She said even though he stopped coaching he continued to act in an exemplary way on the sidelines, encouraging the cheering for all the players. 5. She said the applicant has a positive demeanour around children and believes he always acts with the children's best interests in mind. 6. The respondent did not seek to cross examine the applicant's wife on her statement. Nor did the respondent seek to cross-examine any of the referees and character references that were provided by the applicant. 7. We are not critical of the respondent for having failed to do so. 8. We accept that those who know the applicant from his work, his church and the local football club hold him in high regard. However, we also accept the respondent's submissions that for the purpose of determining whether the applicant poses a risk to the safety of children, little weight can be placed the references and letters of support he has obtained from these people as it is unclear what information they were provided with about his past offending. Nevertheless we accept that these people are an import part of the applicant's support group today and are one of the dynamic risk factors in favour of the applicant. (k) any other matters that the Children's Guardian considers necessary 1. It was the respondent's contention that the applicant's past demonstrates that he did not respect authority and the threat of imprisonment did not act as a deterrent against further misconduct or as an incentive to good conduct. It was submitted that the applicant failed to grasp the opportunities inherent in being granted some latitude when being sentenced, failed to appreciate the role and importance of road rules and did not appear to recognise that road rules signify an approach to safety for which all members of the driving community are equally responsible. 2. In oral submissions at the hearing, counsel for the respondent accepted that the applicant had suffered considerable grief when his father died. Nevertheless it was submitted that there were still concerns about the applicant's future behaviour and whether one could be confident that he would not act violently towards children in the event he were to be given a clearance. In this regard counsel for the respondent pointed to the applicant's minimisation of his 2003 and 2015 offending and it had been recommended that he needed to undertake further psychological treatment. 3. As noted by Dr Wagner, it is not unusual for offenders to minimise their offending, especially in circumstances such as these. However, as we have already noted, the applicant has shown insight into his offending and he is ashamed and remorseful for what he has done. 4. We also accept Dr Wagner's evidence that while it is recommended that the applicant undertake further counselling, this did not mean he posed a risk to the safety of children until he had undertaken that counselling. In any event the applicant intends to do so as he has found it to be very helpful. 5. Counsel for the respondent also contended that the applicant had not been honest when he said in his statement that he never used drugs when, subsequently during the hearing, he acknowledged he had used marijuana once. In our opinion, the applicant's remark about drugs must be read in its proper context in that he had never been a drug user generally and this is reflected from his criminal record which does not include any drug offences. He was however, an abuser of alcohol which he acknowledges. Can we be satisfied that the applicant poses a risk to the safety of children? 1. The applicant is not a disqualified person and there is no presumption that he does pose a risk to the safety of children. Nevertheless, we are satisfied that the applicant's 2003 offending was very serious, even though it did not involve a child. The victim was nevertheless vulnerable and he suffered significant brain damage as a result of having been kicked. 2. While the applicant's participation in the offending conduct was not at the same level of the seriousness as that of his co-offenders, he nevertheless assisted in facilitating what had occurred. 3. The applicant again offended in 2015 and he has had a series of driving offences, many of which occurred while he was well above the prescribed concentration of alcohol. The 2015 offending occurred at a time the applicant was grief stricken and while this was not an excuse, he has taken the steps necessary to obtain the skills to deal with stress as it arises. This includes drinking much less and engaging more with his family and community. 4. The applicant's past offending are all factors that weigh heavily against him if considered in isolation. Nevertheless, we are satisfied that he is remorseful and ashamed of what he has done in the past and has taken positive steps to change his life. This is a factor in his favour. 5. The applicant's 2003 offending occurred almost 15 years ago. His 2015 offending occurred about three years and a half ago and he has not offended violently since that time. In recent years, he has also taken steps to ensure he does not offend violently again. He has undergone counselling and now has insight into his past offending and has developed skill, through counselling, how to better deal with the stressors in his life. Again, he appreciates the need for ongoing counselling and is committed to do so. We also accept the applicant has a stable support network, he is employed and has been assessed to be unlikely to re-offend as he has in the past. 6. These are all factors in his favour. 7. Taking all these factors into account and having regard to s 4 of the WWC Act, we are satisfied that as at the date of hearing the applicant did not pose a risk to the safety of children. Are we satisfied 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 affected person is engaged in any child - related work? 1. It is accepted that the "reasonable person" in s 30(1A)(a) of the WWC Act would not approach the matter with a closed mind and would apply an objective test to the material that is before the Tribunal together with the submissions that have been made: see CZZ v Children's Guardian [2018] NSWCATAD 56, at [142] to [145]. Additionally, a reasonable person would approach the issues as to risk in the same manner prescribed in s 30(1) of the WWC Act. 2. In this case, in our view, a reasonable person would be concerned about the applicant's previous offending, especially the circumstances giving rise to the June 2003 offence and his more recent conduct in December 2015. That person would have regard to the concerns expressed by the respondent in that one cannot be confident that the applicant is equipped to deal with future stressors without resorting to violence until he has undergone the recommended further psychological treatment. However, the reasonable person would also have regard to the fact that the applicant's most serious offending occurred 15 years ago and the views expressed by the applicant's treating psychologist and Dr Wagner, in particular, that the applicant had the necessary insight into his past behaviours, he had ceased consuming alcohol to the extent he had previously and made a commitment to continue with counselling when needed. 3. In our opinion, a reasonable person would also have regard to how the applicant presented as a witness in these proceedings. 4. In our view, taking all these matters into account a reasonable person would also find that the applicant does not, as at the date of hearing, pose a real and appreciable risk to children and on this basis would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant is engaged in child-related work Is it in the public interest to make an order? 1. In ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162, at [20], the High Court (per French CJ, Gummow and Crennan JJ) said: "The term "in the public interest" is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question." 1. In this case, the main purpose of the WWC Act is the protection of children from sexual, physical or psychological harm and this is achieved by requiring persons engaged in child-related work, be it voluntary or paid, to have their suitability to undertake such work checked by the respondent and if not suitable to be refused a working with children check clearance or have such a clearance cancelled: see ZZ v Secretary, Department of Justice [2013] VSC 267, at [206]. 2. Hence, many of the factors relevant to considering whether the applicant poses a risk to the safety of children are relevant to where the public interest lies: see PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455, at [45]. However it might also embrace other consideration. 3. In our opinion, in this application, it is in the public interest to grant the applicant a clearance. It will benefit his community as he is keen to recommence coaching the young players football team and they are keen to have him. These are voluntary roles which are dependent on fathers such as the applicant accepting them. The applicant's ability to again fill this role will also benefit his mental health as noted by Dr Wagner. Conclusion 1. For the reasons set out above, we find that the decision of the respondent is not the correct and preferable decision. Accordingly, the appropriate order is to set aside the decision and in substitution thereof make a decision that the applicant be granted a clearance. Orders 1. For the reasons set out above, the Tribunal orders: 1. The decision of the respondent, made on 19 October 2017, to refuse the applicant's application for a working with children check clearance is set aside. 2. In substitution for that decision a decision is made to grant the applicant with a working with children check clearance. ********** 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: 25 June 2018