Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CDH v Children's Guardian [2018] NSWCATAD 191 Hearing dates: 25 June 2018 Date of orders: 25 June 2018 Decision date: 25 June 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: S. Scarlett, Senior Member R.Royer, General member Decision: 1. The decision of the Respondent Children's Guardian is set aside. 2. In substitution for that decision, the Applicant is to be granted a Working With Children Check clearance Catchwords: ADMINISTRATIVE LAW – review under section 27 Child Protection Working with Children) Act 2012 (NSW) – refusal of working with children check clearance – what the correct and preferable decision is having regard to the material before the Tribunal – whether the applicant poses a risk to the safety of children – applicant's criminal history considered Legislation Cited: Administrative Decisions Review Act 1997 (NSW), Child Protection (Working with Children) Act 2012 (NSW) ss 8,9,15,18,27, 30, 31 Civil and Administrative Tribunal Act 2013 (NSW) s 64 s 58 Cases Cited: BKE v Office of the Children's Guardian [2015] NSWSC 523 CGB v Children's Guardian [2018] NSWSC 776 Children's Guardian v CKF [2017] NSWSC 893 Children's Guardian v CVE [2017] NSWSC 1342 Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Tilley v Children's Guardian [2017] NSWCA 174 Category: Principal judgment Parties: CDH (Applicant) Children's Guardian (Respondent) Representation: Counsel: Mr Fraser (Applicant) Ms Wong (Respondent) Solicitors: Legal Aid NSW (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2017/00340224 Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcastof the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION 1. This is an Application under s 27 of the Child Protection (Working with Children) Act 2012 (NSW) for review of the decision of the Children's Guardian made on 26 October 2017 and notified to the Applicant on 21 October 2017 to refuse to grant to the Applicant a Working With Children Check clearance. That refusal is made under the provisions of subs 18(2) of the Child Protection (Working with Children) Act and the reason given by the Children's Guardian is that the Children's Guardian was satisfied that the Applicant posed a risk to the safety of children. 2. The Applicant on 8 November 2017 filed an Application for Administrative Review of that decision. The grounds of his Application are set out as follows: I do not believe that I pose a risk to children. I have acknowledged and address all matters on my criminal record. I have provided medical evidence that I am unable to drink alcohol due to my medical conditions and that I have received treatment for my alcohol in the past. I have never committed an offence against any child and never will. I have not offended in over ten years. I am trying to make a positive contribution to the local Aboriginal community and will be unable to continue with this work if my Working With Children Check is denied. 1. The final decision of the Children's Guardian was to refuse to grant the Applicant a Working With Children Check clearance. The reasons for the decision were attached to the Applicant's Application for Administrative Review. In those reasons the Children's Guardian noted that the Applicant applied for Working With Children Check Volunteer Clearance on 21 March 2016, nominating "Youth Workers" as the child-related employment sector. His application in respect of that sector was verified by the Illawarra Aboriginal Corporation. 2. A risk assessment was undertaken and under the provisions of s 18(2) of the Act the Children's Guardian decided to refuse to grant the Applicant a Working With Children Check clearance because the Children's Guardian was satisfied that the Applicant posed a risk to the safety of children. 3. In the reasons the Children's Guardian set out a total of 24 separate documents which had been considered. Those documents included the Applicant's criminal history, information provided by the New South Wales Police Force, information provided by the Local Court of New South Wales, information provided by the Victorian Police Force, information from the New South Wales Department of Community Services, various letters from such people as the Applicant's general practitioner, a solicitor from the Illawarra Legal Centre and a number of other individuals. There were a number of documents which were in the nature of character references. 4. Amongst those documents was a professional reference from Ms Melinda Murray-Scherf, a psychologist, who was a treating practitioner. 5. There were also two statutory declarations made by the Applicant on 4 November 2016 and 30 May 2017. 6. In the Reasons for Decision the Children's Guardian considered the matters contained in the provisions of subsections 15(4) and 15(4A) of the Act. They included the seriousness of any matters that caused the assessment in relation to the Applicant, and the Children's Guardian noted that the matter that prompted the risk assessment was the Applicant's serious and extensive criminal history. The Children's Guardian stated that the Applicant's record spanned 42 years from 1965 to 2007 and had occurred across the States of New South Wales, Queensland and Victoria. During that period of time the Applicant had received five convictions for common assault, two convictions for assault occasioning actual bodily harm and one for contravening an Apprehended Violence Order. There were other matters which were dismissed or withdrawn and dismissed. 7. The Children's Guardian noted that the majority of the Applicant's violence had been domestic related with alcohol being a contributing factor, and the Children's Guardian stated that the violence had at times resulted in victims requiring hospital treatment. 8. The Children's Guardian also noted that the information from the New South Wales Police was to the effect that the majority of the Applicant's violence had been directed at his long-term partner at the time, with a foster child who had global development delay, who had often witnessed the domestic violence. The Children's Guardian noted with concern that the Applicant had been listed as the defendant in 19 interim and four final and personal and domestic Apprehended Violence Orders, although it was acknowledged that no such order was currently in force. 9. In particular, the Children's Guardian referred to what it described as the most serious incident within the Applicant's criminal history, being a siege situation occurring on 9 June 2004 at the Applicant's home, lasting approximately six hours. The Children's Guardian stated that information provided by New South Wales Police indicated that the Applicant had poured petrol over the victim, himself and throughout the house. It was also stated that during the siege it was reported that the Applicant had threatened to set fire to the victim, and to the house and himself. 10. The Children's Guardian stated that the Applicant's long history of alcohol abuse and related violence weighed in favour of a finding that the Applicant posed a risk to the safety of children. The Children's Guardian looked at the time since the matters occurred and the conduct of the person since they occurred, noting that the Applicant's last offence was committed in 2007, and it was acknowledged that he had a ten-year crime-free record, which was considered to be significant. It was further noted that much of the Applicant's history of vi0olence had been alcohol-related and reference was made to a psychiatric report dated 29 June 2004 from a Dr Dong Tran. 11. The Children's Guardian noted that the Applicant's criminal offending dated from 1965, when he was 17 years of age, through to 2007, when he was 60 years of age. The Children's Guardian noted that the direct victims of the Applicant's offending behaviour have been adults, although there was evidence that the Applicant and his then partner were formerly caring for a child, the Applicant's partner's nephew, who had a diagnosis of global developmental delay, moderate intellectual disability, and was a child who used sign language for communication. 12. The Children's Guardian went on to say that it was reported that this child was often exposed to the domestic violence within the home and was therefore considered to be a secondary victim. The child was vulnerable by virtue of his age, which was reported to be 13 years during the siege incident in 2004. 13. The Children's Guardian went on to consider the other matters required by the Act, including the Applicant's current age of 70 years, the seriousness of the Applicant's total criminal record, and his conduct since the matters occurred. The Children's Guardian noted that in October 2004, after the siege incident, the Applicant had completed a three-month residential alcohol and other drug rehabilitation program at Oolong House. The Applicant provided a reference from Oolong House that stated that in 2004 he was making good progress and making positive changes to his life. 14. However, the Children's Guardian noted that information received from the New South Police evidenced the fact that the Applicant had continued to perpetrate violence within the home and the community, much of which was alcohol-related. The Children's Guardian noted that the Applicant had provided references that attested to his positive contribution to the community over the past 20 years. 15. The Children's Guardian considered the likelihood of any repetition by the Applicant of the offences or conduct or any other matter that caused the assessment and the impact on children of any such repetition, and formed the view that, as the Applicant had been involved with the police and the criminal justice system from the age of 17 to 67 years, this 50-year period suggested a high likelihood of repeat behaviour. The Children's Guardian noted that the Applicant had not provided a recent psychological assessment and noted that the psychiatric report of 29 June 2004 suggested that the Applicant had alcohol-related cognitive impairment. The Children's Guardian also noted that the Applicant had not provided any evidence of remedial therapy for anger management or poor impulse control. 16. The Children's Guardian went on to say that the impact on children of any such repetition has the potential to be significant, and exposure to violence, particularly in a domestic setting, can impact a child's cognitive development and impact their feelings of safety and security. The Children's Guardian referred to the Notice of Risk Assessment that was issued to the Applicant on 30 August 2016 and noted the statutory declaration provided by the Applicant as a result. 17. The Applicant was asked to provide an additional statutory declaration on 11 May 2017, and on 25 May 2017 a risk assessment officer spoke with the Applicant whilst he was with a representative from the Aboriginal Legal Service to explain the contents of that letter. The Children's Guardian noted that a second statutory declaration, a reference and two letters of support were received from the Applicant on 31 May 2017. 18. The Children's Guardian noted that the Applicant had provided a reference from his current treating psychologist, Ms Melinda Murray-Scherf, and in her reference she advised that the Applicant was referred to her under a mental health care plan on 5 May 2016 and continued to engage with her when he was having difficulty. She stated that he would self-refer or he would be referred by his general practitioner. The Children's Guardian stated that the self-referral indicated that the Applicant had some level of insight into his inability to cope. It was considered positive that the Applicant now engaged with the psychologist rather than alcohol when he was having difficulty coping. 19. The Applicant was issued with a Notice of Proposed Refusal of Application on 22 September 2017 and his then solicitor submitted a letter dated 4 October 2017 and attached three references, although the Children's Guardian noted that those references had previously been submitted. 20. The Children's Guardian went on to refer to the "reasonable person" test, which is a safeguard test that applies in circumstances where the Children's Guardian concludes in her assessment that the Applicant does not pose a risk to the safety of children. The Children's Guardian went on to say that, given that the Applicant had been assessed as a person that poses a risk to the safety of children, it was not necessary for the Children's Guardian to apply the "reasonable person" test. 21. The Children's Guardian also referred to the public interest test but again noted that, because the Applicant had been assessed as posing a risk to the safety of children, the public interest test did not apply. 22. Whilst the Children's Guardian acknowledged the Applicant's positive contribution and work within the community, it was further noted that all that community work had been performed in a group setting with other adults present, but the Children's Guardian stated that the Applicant's criminality did not cease when he was involved in the community work and opined that it cannot be identified as a deterrent for further offending. 23. The Children's Guardian went on to refer to the Applicant's long history of alcohol abuse and associated poor impulse control, identifying that as a significant risk factor. The Children's Guardian also noted that the Applicant had provided conflicting evidence of abstinence from alcohol in his statutory declaration. 24. It was the Children's Guardian's opinion that the information gathered through the risk assessment indicated that the Applicant's risk of reoffending was high if he continued to drink and that he needed to undertake long-term residential rehabilitation with respect to alcohol dependence. 25. The Children's Guardian went on to say that the consideration to the connection between the Applicant's alcohol use and violence in the past, meant that the likelihood of further violence and poor impulse control could not be precluded. The children's Guardian was satisfied that the Applicant posed a risk to the safety of children. 26. It was for those reasons, which the Tribunal has summarised, that the Children's Guardian refused to grant the Applicant a Working With Children Check clearance under subsection 18(2) of the Act. Submissions 1. The Applicant, through his legal advisors, has provided a submission prepared by Mr Fraser of counsel. In that submission, at paragraph [59], Mr Fraser pointed out that the Respondent, i.e. the Children's Guardian, no longer contends that the Applicant poses a risk to the safety of children and submitted that the Tribunal would conclude that the Applicant satisfied both the "reasonable person" and the public interest tests under subsection 30(1A) of the Act. 2. The submission was that the correct and preferable decision is that the Applicant should receive a Working With Children Check clearance and that the appropriate orders would be that: 1. The decision of the Respondent be set aside; and 2. In substitution for that decision, the Applicant be granted a Working With Children Check clearance. 1. For the Respondent, the Children's Guardian, in a submission by counsel for the Respondent, Ms Wong, it was noted at paragraph [3] of that submission that the Children's Guardian neither opposed nor consented to the Application. However, the Children's Guardian sought to draw the Tribunal's attention to matters which were relevant and material to the Tribunal's conduct of the review. In the conclusions to that submission, at paragraph [55], the Children's Guardian expressed no view as to the correct and preferable decision that the Tribunal should make but the Children's Guardian reserved the right, at paragraph [56], to change its position having regard to evidence presented to the Tribunal at hearing. Evidence 1. The evidence presented on behalf of the Applicant consisted of four separate documents which were marked as Exhibits 1 to 4. 2. First of all, there was a statement by the Applicant dated 8 March 2018. Second, there was a report by Dr Christopher Lennings, a Clinical and Forensic Psychologist, of 10 April 2018. There was a report by Dr Melinda Murray-Scherf, the applicant's treating psychologist, of 20 December 2017, and there was also a letter from one Sharralyn Robinson dated 14 June 2018. 3. The Respondent relied on three sets of documents, being two volumes marked 1 and 2, the section 58 material and a bundle of documents marked "Further Documents" of 21 May 2018. Those items formed Exhibits 5, 6 and 7 before the Tribunal. 4. As has been said, the Children's Guardian reserved the right to change her position having regard to evidence presented to the Tribunal at hearing. After the oral evidence of the Applicant and Dr Lennings, a short adjournment took place to allow the Children's Guardian to consider whether or not she could change her position having regard to the evidence from this morning. I was informed that the Children's Guardian had decided not to change her position from that set out in the submission of 28 May 2018. Legal Principles 1. What the Tribunal must do at this stage is consider the legal principles under which this review is to be carried out. In this regard I have had recourse to the very helpful submissions prepared by Ms Wong of counsel for the Respondent and Mr Fraser of counsel for the Applicant. I do not propose to read from these submissions in great detail but the Tribunal notes that the Child Protection (Working with Children) Act 2012 provides in s 8 that a worker is prohibited from engaging in child-related work unless the worker holds a clearance of a class applicable to that work. Similarly, s 9 provides that an employer must not commence employing or continuing to employ a worker in child-related work if the employer knows or has reasonable cause to believe that the worker is not a holder of a clearance and there is no current application to the Children's Guardian for a clearance of a class applicable to that work. 2. Section 18 of the Act provides relevantly: 1. The Children's Guardian must not grant a working with children check clearance to the following persons ("disqualified persons"): 1. 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, 2. 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. 1. 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 that the person poses a risk to the safety of children. 2. 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. There are two important subsections of section 30. The first is subs 30(1), which contains a list of mandatory considerations that the Tribunal is required to take into account when deciding an application for review, and they go from paragraphs (a) through to (k) inclusive. There is a further subsection 30(1A) which provides: (1) The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person") to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b)it is in the public interest to make the order. 1. I will return shortly to the position of subsections 30(1) and 30(1A) as the Tribunal heard some interesting oral submissions from counsel after the conclusion of the evidence. I will go on to say that the assessment of risk under s 18(2) of the Act requires a decision maker to consider whether a person poses a risk to the safety of children. The word "risk" excludes a "fanciful or theoretical risk" but includes "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child". [1] Further, even if the Tribunal is not positively satisfied that the acts occurred on the balance of probabilities but a lingering doubt or suspicion remains that counts against an applicant, although it may not necessarily be fatal to the applicant's efforts to obtain a clearance. [2] 2. As has been said, the Tribunal heard submissions about subsections 30(1) and 30(1A). It was submitted by counsel for the Applicant, who largely accepted the submissions of the Respondent with regard to the relevant law, that by s.18(2) of the Act the Children's Guardian and therefore also the Tribunal must grant a clearance unless affirmatively satisfied that the Applicant poses a risk to the safety of children. The Tribunal was referred to Tilley v Children's Guardian [2017] NSWCA 174 at [22] and Children's Guardian v CVE [2017] NSWSC 1342 at [20]. Counsel for the Applicant, Mr Fraser, submitted that the expression of the test at paragraph [54] of the Respondent's written submission is incorrect in that it reverses the test. What the Respondent has submitted at [54] is: If the Tribunal is satisfied that the Applicant does not pose a risk to the safety of children the Tribunal is required to consider whether the "reasonable person test" and "public interest" tests would be satisfied. 1. This is the expression of the test with which counsel for the Applicant has taken issue, claiming that it is incorrect because it reverses the test. With respect, the Tribunal is not persuaded that it should accede to that view. 2. The Tribunal has been referred to Children's Guardian v CVE [3] particularly at paragraphs [7]-[20] of the decision of Walton J. CVE was a case that arose where the applicant applied for review of a decision of the Children's Guardian to refuse her a clearance to work with children, the application being made under s.27 of the Child Protection (Working with Children) Act. The Tribunal had decided to set aside the decision of the Guardian and substitute a decision that CVE should be granted a Working With Children Check clearance. At paragraph [7] of the judgment his Honour said: There is no dispute the Tribunal considered in its decision the matters prescribed by s 30(1) of the Act and expressed its satisfaction that the defendant did not pose a risk to the safety of children (see s 18(2) of the Act Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949 at [42] (per Young CJ in Eq)). That position is plainly correct as the decision of the tribunal is replete with reference to those factors and their application in the present proceedings. The issue on appeal was whether the Tribunal erred in law by failing to make reference to or make a determination under s 30(1A) of the Act. 1. In paragraph [20] of the decision his Honour referred to the provisions of ss 18(2), 30(1) and 30(1A) of the Act. 2. At paragraph [21] his Honour went on to say: It was properly conceded in this Appeal that the Tribunal had not expressly addressed the competing contentions of the parties below as to the proper application of s 30(1A) of the Act to the facts and circumstances of the case before the Tribunal. It was also correctly accepted that the Tribunal had not expressed n its decision that it was or was not satisfied of the matters referred to in s 30(1A). 1. The Tribunal has had regard to that decision and I note that there does appear to be some inconsistency between the relevant sections of the Act. Walton J said in CVE at [20]: By s 18(2), the Act provides that the Guardian, and thus also the Tribunal, must grant a clearance unless satisfied that CVE "poses a risk to the safety of children". 1. His Honour then went on to refer to s 30(1) and 30(1A). 2. It is certainly true that it is not a case where either party bears the onus of proof but it is the fact that where the Tribunal is considering a decision by the Children's Guardian it is not sufficient just to rely on the matters provided by s 30(1) even though a reading of s 18(2) could perhaps give the appearance that that is what the law requires. 3. In discussions with counsel this morning or early this afternoon I expressed the view, somewhat clumsily perhaps, that there are in fact two hurdles which must be overcome in respect of what takes place in s 30. It is certainly true that s 30(1) contains this list of mandatory considerations at paragraphs (a) through to (k). If, as a result of reading those paragraphs the Tribunal is not satisfied that the applicant poses a risk to the safety of children there is a further hurdle which the applicant must surmount and that is the hurdle in s 30(1A). 4. If, however, the applicant falls at the first hurdle under s 30(1) and as the Children's Guardian has pointed out, there is a state of satisfaction that the applicant poses a risk to children, it is unnecessary to consider the matters in paragraphs (a) and (b) of s 30(1A). However, an applicant being successful under s 30(1) must then meet the test under s 30(1A) and that is a two-part test that 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: 1. 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 2. It is in the public interest to make the order. 1. Thus, there is a two -part test and in s 30(1A) there are two component parts of the second test and it is clear under the meaning of that subsection that the Tribunal must be affirmatively satisfied in respect of both of the matters in paragraphs (a) and (b) of s 30(1A). In this case, if the Tribunal is satisfied that the Applicant poses a risk to the safety of children under s 30(1) then there is no need to advance further, but if the Tribunal is not satisfied that the Applicant poses a risk to the safety of children, or, for that matter, the Applicant is not a disqualified person then the Tribunal must consider the two parts of s 30(1A), and that is what I propose to do. 2. Turning now to the evidence before the Tribunal, the Applicant relied on his statement which was made on 8 March 2018. He was required for cross-examination on that statement. He gave some oral evidence in chief and was then cross-examined by counsel for the Respondent. 3. In his statement the Applicant said that he was born on 10 June 1947 in Kempsey. He set out how he left school in Kempsey and went to Sydney. He travelled up and down the eastern seaboard between Victoria and Queensland. He married and had two children. His wife became sick with cancer and died. After his wife died, the Applicant worked in Victoria, went back to Kempsey and then moved to Wollongong. 4. In about 1992 he met the lady who became his partner. She had the care of her nephew, a boy who had an intellectual disability and needed a lot of care and assistance. 5. The Applicant referred to the fact that he and his partner "used to drink a bit". They would go to a club and have a few beers. They would then buy a carton of beer and go home and drink. They would then get very drunk and would end up arguing and fighting. 6. The Applicant referred to some of his offences, including what he said was his "worst offence", which he said was probably in 2004. He said that he picked up a can of petrol and poured it over himself and around the house. He went on to say, however, that he never intended to harm his partner and she stayed in the house with him because she was concerned about what the police would do to him. 7. The Applicant stated that after the incident he realised that he had to do something about his alcohol consumption and the behaviour that arose from it. He went and spent approximately thirteen and a half weeks at a rehabilitation centre called Oolong House. He also started to go to Alcoholics Anonymous meetings. He did this for around five years until he thought his alcohol consumption was under control. 8. Unfortunately, he started drinking again after an incident where his mother was assaulted in the aged care home where she was staying. He then said that about six years ago he stopped drinking alcohol for good except on rare occasions. 9. The Applicant also went on to say that he had problems with his back, heart and kidneys and had a tumour in his head. 10. The Applicant stated that he became involved in community issues when he started advocating for his stepson, his partner's nephew, to get him access to proper circumstances. He became more involved with the Aboriginal community and started giving talks at schools, TAFE and the university as a mentor and an education advocate. He referred to a film he had made about his trip to the Kokoda Track in Papua New Guinea. He went on to say that helping people in the community gives him a sense of fulfilment and he feels like he is making a contribution to the community that is positive. 11. Further, about six years ago, the Applicant separated from his partner and got his own accommodation, although he still sees her and the nephew on almost a daily basis. He said that he no longer goes to the pub. He does not drink with his former partner at home and the police have not attended any disputes between him and his former partner. He said that he has learnt to walk away from situations which in the past would have led him into confrontation with the person involved. 12. The Applicant acknowledged that on occasions he had lost his temper and the arguments that he had got into became too heated, but he now feels calmer in a lot of situations where he would have been upset in the past. He also realises that it is not appropriate for him to deal with his stress levels with alcohol. He suffers from depression and anxiety. He spoke positively about his consultations with the psychologist, Melinda Murray-Scherf. 13. The Applicant acknowledged previous incidents in his life where he had involvement with the police. Many of those occasions had been associated with the over consumption of alcohol. He said that since he had stopped drinking or, actually, severely reduced his drinking, he had not been charged by the police. He said: "I have several medical conditions including kidney malfunction, pituitary tumour and cardiac issues. As a result of these conditions my doctors have told me not to drink." 1. The Applicant was cross-examined in some detail. Before he was cross-examined he gave some oral evidence-in-chief. He stressed that he needed his Working With Children Check clearance because he had been going into schools for the past ten or fifteen years. He talks to teachers and to the community. In the Aboriginal community he has the title of "Uncle", which is a title of respect. Since he has not been going into the schools because he is not allowed to, he said that he was losing some of that respect. The Applicant sounded very regretful about that fact. 2. The Applicant also referred to his trip to Papua New Guinea. He pointed out that his father had been in the Army, as had his uncles and cousins. He was particularly concerned about recognition of aboriginal servicemen who had been killed in action or died on service. He described going to the Bomana War Cemetery in Papua New Guinea and holding a ceremony there. He was particularly interested in educating people about the plight of Aboriginal ex-servicemen when they were repatriated. As he said, when they took their uniforms off they had to go back and live on the mission. 3. As far as going to schools is concerned, the Applicant said that when he would go to a school he would meet an Aboriginal liaison officer in the car park or there would otherwise be cultural people from the school that he would meet. He would then go to a classroom or an assembly hall where he would make a presentation. 4. The Applicant said that he was also involved in dealing with children who had behavioural problems at school. He would not meet the children on a one-on-one basis, but he would be consulted by someone at the school, a teacher or the principal. He would communicate with the child's parents and would then have a meeting with the child with the parents and a representative of the school present in an attempt to assist the child to deal with acting-out problems. He was adamant that he did not meet children one on one. 5. In cross-examination, the Applicant said that whilst he would not get very drunk when he went to the club, he would keep drinking at home, and that is when the arguments with his partner occurred. 6. The Applicant was cross-examined on three particular incidents in his criminal history, in 1998, 2000 and 2004. He was vague on some of the details and did not, in fact, remember a number of these details. He did not recall being violent towards his partner's mother, although he said he did remember breaking a window. 7. The Applicant was shown a fact sheet in respect of a matter on 8 November 2000. When he was shown the fact sheet he said that he could not remember it. When asked if he denied that it happened he said, "It probably did but I cannot remember it". 8. The Applicant referred to the incident of 8 June 2004, which was described as the incident of the petrol. He had been drinking at the club and he said that he grabbed a container of petrol in the course of an argument. He poured the petrol on himself but not on his partner. He said that he was holding a cigarette lighter but he denied that he threatened to set fire to his partner or to the house, although he said that he may have spilt some petrol on the floor. He did concede that he poured petrol on himself. He did not know that he said, "if I go, she's going with me", referring to his partner. He agreed, however, that now, on reflection, he had put her safety at risk. 9. The Applicant said in cross-examination that he was now living in a flat in a northern suburb of Wollongong. He sees his former partner and her nephew every day, but he does not drink with her. He described his drinking practice as that he will got to different clubs and, if there is football on he will watch the football. He said, "I will have three or four beers". He would have tea, but it takes him a long time to drink. He said he would only go to the club about every three or four months. He stated that he goes to clubs in various places but otherwise he stays at home. 10. Dr Christopher Lennings provided a report for the purpose of these proceedings. His report was prepared on 10 April 2018 and filed on 17 April. It is noteworthy that Dr Lennings' report was not in existence at the time when the Children's Guardian considered the Applicant's application for a Working With Children Check clearance. Dr Lennings is a clinical psychologist with a Master's Degree in clinical psychology and a PhD in research on personality. He has extensive history in providing evidence to courts and tribunals. 11. Dr Lennings referred in his report to a variety of documents that had been provided to him, including police facts, a court report from Dr Tran, a brief report from the team leader at Oolong House, the rehabilitation centre, a letter from Dr Mon Tut, who is the Applicant's general practitioner, and the report from Melinda Murray-Scherf dated 20 December 2017. 12. Dr Lennings described in his report how he interviewed the Applicant at some length and obtained a lengthy history, which he set out in some detail. Dr Lennings conducted a number of psychological tests and, in his psychological assessment, said that the Applicant was "a very vague historian and was unable to provide specifics and had no memory for numbers." He went on to say that "He had minimal insight into his past behaviour, although he does take responsibility for it and as noted he has significantly changed in his behaviour. Certainly after the 2004 siege he appears to have understood that his behaviour needed to change and whilst there continued to be some problems in his behaviour since, the impression gained from reading the history suggests that 2004 was a watershed moment for him where he made substantial changes to his behaviour". 13. Dr Lennings gave evidence of conducting tests on his cognitive assessment including a "trail making" test, which is a measure of the extent to which a person can correct errors, inhibit distractibility and plan behaviour. Dr Lennings expressed the view that although the Applicant's visual scanning ability was quite well preserved his capacity for executive functioning was significantly impaired on the basis for the norms for his age. 14. Dr Lennings also administered a Rey Complex Figure Test. This test requires a person to copy a complex figure and then 30 minutes later reproduce it from memory. The copy performance allows an estimation of a cognitive organisation, the recall from memory allows an estimate of the transfer of the immediate memory into long term storage. Dr Lennings stated: 15. "His performance on this test was surprisingly intact. Although his performance was poor, once compared to age related norms, it fell within the average range. Given that his pre-morbid cognitive abilities would at best be probably low average this is a good result for him. On the other hand verbal memory, as measured by the Wechsler Memory Scale Logical Memory test, was exceptionally poor, and fell into the very bottom of the distribution as he did on delayed memory." 16. Overall, Dr Lennings formed the view that the Applicant "does show some deficits consistent with the history of long term alcohol use and/or accretion of minor head injuries suggesting that he has some impaired function, however is not so impaired that he is unable to manage his life." 17. Dr Lennings, at paragraph [35] in his report, came up with a risk assessment which he described as having two broad themes, the first of which is the risk of relapse into alcohol abuse. He stated: Typically if a person remains abstinent or in a controlled drinking program six months post treatment or post cessation of alcohol use, that is generally predictive of their behaviour over two years. If a person remain[s] abstinent or controlled over two years, that is generally predictive of the person's behaviour over five years. There is very little information about long term follow up. Generally the most important predictor of long term sobriety is community support." 1. In the case of the Applicant Dr Lennings said that there was no evidence of any significant alcohol abuse since the period of time at around 2008 to 2010. He formed the view that: "The period of time that he has been in a controlled drinking is therefore significant and suggests that relapse is unlikely in his case, particularly given the twin influences of age and his medical condition. Thus the future risk of alcohol relapse for [the Applicant] is regarded as low." 1. Dr Lennings identified the second theme as being the Applicant's engagement in domestic violence. He noted that the Applicant's criminal history was primarily a function of violence within the family or extended family settings. He noted that the last police notification of any kind of domestic violence was 2008 and said: Given a 10-year period of absence of any violence related behaviour there is no risk assessment device that would be of any particular use. The reason for that is that risk assessment device tend to be short term in their assessment of risk i.e. typically 12 months, and the advice for most risk assessment advice is that they should not be used where the index offence is more than 10 years old and the person has been free in the community to re-offend but has not" 1. Dr Lennings expressed the view that his overall assessment of risk for the Applicant was that he has a low risk of future harm associated with either his history of domestic violence or severe substance abuse, saying: "He appears to be a man who has made fundamental changes in his life. Some of these changes have been forced on him by the passage of time and ill health but some I think because of the impact of what happened in 2004 and him gaining some awareness of his unacceptable behaviour in 2004. He appears to have developed a genuine sense of needing to make reparation for and to change his behaviour as a result, albeit it took some years for the full transformation to occur." 1. In summary, then, Dr Lennings formed the view that despite the presence of some elements of alcohol or lifestyle relating to brain damage it did not appear that those were sufficiently serious to increase any level of risk in the Applicant. He went on to say: "As a consequence the conclusion of this assessment is that there is no evidence that [the Applicant] presents an appreciable risk of harm to community members, either adult or children". 1. Dr Lennings was extensively cross-examined by counsel for the Respondent. In his cross-examination he noted that, as was said in his report, the Applicant was a very poor historian because "his memory is shot". The Applicant understood that he had behaved badly, that he had treated people badly and he took responsibility for his behaviour, although he was vague. 2. Dr Lennings added that the Applicant had gone to rehab, he had made significant efforts to reduce his drinking, and cannot drink much now because of his health. It was put to him that on the various tests that he applied, the Trail Making Test and the Rey Complex Figure Test, it is possible that one test is administered that one can get what he called an "outlier result", which is why one administers more than one test. He was of the view that the Trail Making result was in the area which would be described as an outlier result, because the results did not come within the norms that one would expect. As he said, "You would be very unwise to choose an outlier where you have conflicting material. The life history is not sufficient to place reliance on the Trail Making test. If you take a look at his lifestyle over the last ten years he has not such severe brain damage which would, in effect, cause him to rely on the Trail Making test. That is an outlier". 3. Dr Lennings stressed that the Applicant's current alcohol use is an important factor in his risk assessment, because alcohol had always been a problem but the Applicant's future risk of alcohol relapse was low. He was questioned on the Applicant's inconsistent history over time as to how much he was drinking but stressed that it is not just a matter of how much alcohol a person drinks but how quickly they drink it. When asked what would happen if the Applicant drank three drinks fairly quickly Dr Lennings said that three drinks was not wise. It was not likely to make him drunk and three drinks drunk slowly over a period would not cause Dr Lennings any concern. 4. In the Tribunal's view the cross-examination of Dr Lennings did not shake the conclusions contained in his report. If anything, Dr Lennings' conclusions in his report were strengthened by his oral evidence. 5. The other items of evidence on behalf of the Applicant were a letter of support from Sharralyn Robinson dated 14 June 2008 and the report from the treating psychologist, Melinda Murray-Scherf. Neither of those people was required for cross-examination. 6. Ms Robinson is an Aboriginal elder in the Illawarra area. She refers to the Applicant by the respectful title of Uncle. She states that she had known him for some 20 years and that she is aware of the past history that happened between the Applicant and his former partner. She also expressed the opinion that the Applicant had strived over the years to rehabilitate and be a better person. She spoke highly of him as a well-respected Elder held in the highest esteem by his community, saying: "He is loved and always makes himself available to care and support not only his and his partner's family but the whole of the community". 1. She was instrumental in nominating him for the National NAIDOC Award where he became Elder of the Year for his work in respect of Aboriginal servicemen. 2. The reports of Melinda Murray-Scherf from 20 December 2017, and the earlier one from 29 May 2017, have been subject to some criticism as she has not, unlike Dr Lennings, indicated that she was familiar with the NCAT procedural directions comprising the expert's code of conduct, nor has she agreed to be bound by it. However, she has not been put to the Tribunal as an independent expert. She is a treating psychologist and one whose treatment of the Applicant is ongoing, certainly from the Applicant's own evidence. His evidence in regard to her positive influence on him is that when he is down, when he has difficulties, instead of turning to alcohol or violence, he makes an appointment to see her either through his general practitioner or directly. 3. Certainly the Tribunal is satisfied from the Applicant's evidence that his therapeutic relationship with Ms Murray-Scherf is an ongoing positive influence, and her advice to him is one of the tools that he uses to deal with depression or difficulty in relationships with other persons. 4. The Tribunal has of course also considered the large bundles of material supplied by the Office of the Children's Guardian. It is certainly the case that the Applicant has a significant history involving alcohol-related violence. It is perhaps unsurprising that that was the factor that prompted the Children's Guardian to make a finding that the Applicant poses a risk to children. 5. Conclusions 6. Turning now to the criteria under s 30(1) of the Child Protection (Working with Children) Act 2012, there are 13 paragraphs to be considered. 7. First of all, (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal or a clearance or imposition of an interim bar. 8. Clearly, the Applicant's extensive criminal history, including alcohol abuse and subsequent violence, has been a major factor. It has occurred from a period in 1965 through to 2007. There is minor criminal history in Queensland of one matter, but the bulk of the offending took place in New South Wales and Victoria. 9. The most serious offence seems to have been the offence in 2004, involving the pouring of petrol on himself. It was that incident, and the relatively lenient sentence which he received from the Court, that acted, so it appears, as the catalyst for him to go into residential alcohol rehabilitation at Oolong House. The Applicant was given a suspended sentence upon his entering into a good behaviour bond. One might comment that he was possibly lucky not to receive a period of full time custody for what on its face was a most serious offence. 10. Certainly the Applicant has had a serious criminal history but the event of 2004 was the most serious. There are other matters up to 2007, but certainly it has been more than ten years since he has been before a court. 11. Paragraph (b) requires the Tribunal to consider the period of time since those offences or matters occurred and the conduct of the person since they occurred. 12. As has been said, there has been nothing since 2007. 13. The Tribunal looks, in paragraph (c), at the age of the person at the time the offences or matters occurred. 14. The Applicant was aged 17 when his first offence occurred. His first conviction for violence was in 1976, when he was aged 30. He was 57 in 2004, the "petrol" offence. He was aged 61 at the time of his last offence. The Applicant is 71 years of age now. 15. Paragraph (d) requires the Tribunal to consider 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. 16. The Applicant has not been charged with, or convicted of, any offences against children. The victim or victims have all been adults. True it is that his partner's nephew, who is developmentally delayed, was apparently present in the house at some stage in 2004 before being removed by a neighbour, but there has been no offence against children per se. 17. Paragraph (e) looks at the difference in age between the victim and the person and the relationship (if any) between the victim and the person. 18. All of the victims have been adults 19. Paragraph (f) – whether the person knew, or could reasonably have known, that the victim was a child. 20. The victims have been adults except that one could say that the partner's nephew was a secondary victim. 21. The Applicant's present age is a factor under paragraph (g). By my calculation the Applicant is aged 71. 22. Paragraph (h) requires the Tribunal to consider the seriousness of the person's criminal history and the conduct of the person since the matters occurred. 23. The total criminal record is not good and it is longstanding. However, it was submitted, and I believe appropriately, that most of the offences are in the context of a dysfunctional relationship and alcohol abuse. There is no evidence that the Applicant has ever attempted to harm a child. His subsequent conduct has been very different. 24. At paragraph (i) the Tribunal must look at the likelihood of any repetition by the person of the offence or conduct and the impact on children of any such repetition. 25. The psychiatric report of Dr Tran referred to by the Respondent is over 14 years old and the Tribunal would not put much weight on it. The Tribunal does consider, and relies quite significantly, on the report of Dr Lennings of 10 April this year and of his evidence to the Tribunal this morning. The Applicant's personal situation has changed, in that he is not now living with the partner with whom he had a somewhat tempestuous relationship and an alcohol fuelled one. He has remained free of offences for over ten years. His alcohol consumption has gone right down, and it is not, in the view of the Tribunal, a matter of concern that the Applicant has given evidence that every three or four months, perhaps a bit more frequently, that he will go to a club in the area where he will have a meal and have three beers or perhaps four and watch a football game. That is not a matter of concern and that would be fairly common practice amongst many men of his age in this community. 26. Dr Lennings formed the view that substantial changes have occurred in the Applicant's life since the 2004 petrol incident. Dr Lennings has assessed the Applicant as having a low risk of future harm associated with either his history of domestic violence or severe substance abuse. He appears to be a man who has made fundamental changes in his life. 27. That is a view that is open to the Tribunal on the evidence and the Tribunal is comfortable in forming that view. Dr Lennings went on to say in his report: As a consequence the conclusion of this assessment is that there is no evidence that [the Applicant] presents appreciable future risk of harm to community members, either adult or children. 1. There is no order of a court or tribunal that is in force in relation to the Applicant (s 30(1)(i1)). 2. The Tribunal considers any information given by the applicant in, or in relation to, the application (s 30(1)(j)). 3. The Applicant supplied a number of references from community members and it is clear that he holds a position of respect in the community. 4. There is no relevant information in relation to the person that was obtained in accordance with section 36A (s 30(1)(j1). 5. The Tribunal must consider any other matters that the Children's Guardian considers necessary (s 30(1)(k). 6. It has been submitted by the Respondent that the Applicant has not provided any evidence of remedial therapy for anger management or poor impulse control. With respect, the Tribunal disagrees. 7. The Applicant's evidence, certainly it is oral evidence, indicates that he relies heavily on the support that he receives from his psychologist, Melinda Murray-Scherf, and that he makes an effort to see her about once a month, and that she has provided him with valuable assistance in dealing with matters which would otherwise require anger management or impulse control. 8. The matters, therefore, under s 30(1) of the Act are such that the Tribunal is not satisfied that the Applicant poses a risk to the safety of children. Certainly, it is not argued that he is a disqualified person under s 18(3). However, as has been discussed, the Tribunal must also consider the requirements under s 30(1A). The Tribunal must do so because it is concluded that the Applicant does not present a real and appreciable risk to the safety of children. 9. There are two parts to s 30(1A) and the Tribunal must consider both of them, because the Tribunal may not make an order which has the effect of enabling a person to work with children unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. 1. There is evidence that until the Application for Working With Children Check Certificate was refused the Applicant had been working with children, in the community, by going into schools, primary schools, high schools and colleges, technical and further education, at the invitation of the principals and teachers of the schools. There is evidence that he would be providing particular information to indigenous children including about the availability of bush tucker, pointing out to the Tribunal that it is not always possible just to go down to the supermarket to get all these foodstuffs that we take for granted. 2. There is evidence that until he was unable to do so the Applicant was working with children who had behavioural problems at the invitation of the school, in a situation where he would contact the children's parents and deal with the child only in the presence of a teacher and the parents. As he said, he was not allowed to conduct one on one interviews and did not do so. 3. The Tribunal is of the view, having considered all the evidence and noting that the Applicant is a man who has, in the last ten years or so, changed his life around and has made substantial efforts to involve himself in the community, especially the indigenous community, that it is 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 while the Applicant was engaged in any child-related work. 4. Turning to the second part of s 30(1A), the Tribunal must consider whether it is in the public interest to make the order. The Tribunal is of the view that it is, for the reasons set out in the following paragraphs. 5. The Applicant has shown a commitment to working in the community, particularly to working in the indigenous community. He has reflected on his former life and on the harm that alcohol has caused to him by his abuse of alcohol, and he has taken serious steps to change that. He has involved himself with community activities, being the education of children, the recognition of Aboriginal servicemen who served in the Australian Defence Force through the wars and have, on repatriation, not been accorded the respect which they quite clearly deserve, and he has made it his mission to publicise that situation, which must be to the benefit of the community. 6. The Applicant has also been conscious of the fact that some Aboriginal servicemen have been killed or have died on active service, and he in fact referred to one relative of his who died in New Guinea and had not been buried in country, but in a war cemetery. He has described conducting culturally-appropriate ceremonies at the Bomana War Cemetery with the use of a didgeridoo rather than a traditional bugle. 7. Clearly this Applicant is making a serious effort to work for the benefit of the Aboriginal community, to educate not only the Aboriginal community but the community as a whole. It must clearly be to the benefit of the public as a whole for the Applicant to be in a position where he can indeed continue to do that work. 8. In order for him to do so, however, the Applicant must have a Working With Children Check clearance. In the Tribunal's view, the Application does meet both of the tests in s 30(1A)(a) and (b) and therefore, as the Applicant submits, the correct and preferable decision is that the Applicant should receive a Working With Children Check clearance. 9. Orders 10. The Tribunal orders that: 1. The decision of the Respondent Children's Guardian is set aside; 2. In substitution for that decision the Applicant is to be granted a Working With Children Check clearance. 1. The Tribunal will continue the order made earlier under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the publication of the name of any person mentioned in these proceedings. ********** Endnotes 1. Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476 at [41]-[42] 2. Office of the Children's Guardian v CFW [2016] NSWSC 1406 at [16] 3. [2017] NSWSC 1342 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: 20 August 2018