BLD v NSW Office of the Children's Guardian

[2015] NSWCATAD 2

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BLD v NSW Office of the Children’s Guardian [2015] NSWCATAD 2
Hearing dates:	23 October 2014, 4 November 2014
Date of orders:	12 January 2015
Decision date:	12 January 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M W Anderson, Senior Member
Decision:	(1)The decision of the Children’s Guardian dated 22 July 2014 to refuse to grant the applicant a Working with Children check clearance is affirmed. (2)The application for review of the decision of the Children’s Guardian filed 13 August 2014 is otherwise refused and dismissed.
Catchwords:	ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-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- multiple historical offences of violence perpetrated upon and in the presence of children- extensive criminal history from the age of 12 including offences related to drug and alcohol abuse-definition of “child abuse” considered- onus of proof in a review under section 27- a real and appreciable risk is posed by the applicant to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1987(NSW) Administrative Decisions Tribunal Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Children and Young Persons (Care and Protection) Regulation 2012 Civil and Administrative Rules 2014 Civil and Administrative Tribunal Act 2013 (NSW) Commission for Children and Young People Act 1998 (NSW) Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW) Family Law Act 1975 (Cth) Interpretation Act 1987 (NSW) Mental Health Act 1990 (NSW)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BFX v Children’s Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111 BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 BYR v Children’s Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 M v M [1988] HCA 68; 166 CLR 59 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 R v Commission for Children and Young People [2002] NSWIRComm 101 Roberts v Balancio (1987) 8 NSWLR 436
Category:	Principal judgment
Parties:	BLD (Applicant) Office of the Children’s Guardian (Respondent)
Representation:	Counsel: G Moore (Respondent) Solicitors: BLD (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1410436

reasons for decision

Introduction

1. The applicant, known as “BLD” in these proceedings, on 13 August 2014 filed in the Tribunal an application for review under section 27 of the Child Protection (Working with Children) Act 2012 (“the Act”) concerning a decision of the Children’s Guardian, made on 22 July 2014, to refuse him a Working with Children Check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.

2. At the commencement of the hearing on 23 October 2014 an order was made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (“the CAT Act”) restricting publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. The hearing continued and finalised with further evidence and submissions on 4 November 2014.

3. The applicant applied for a Working with Children check clearance from the respondent on 24 September 2013 which resulted in a review of relevant records and triggered a risk assessment under the Act: see Part 3, Division 3 of the Act.

4. The respondent considered the information provided by the NSW Police Force, the NSW Local and District Courts, the NSW Department of Family and Community Services, NSW Corrective Services, an assessment of authorised relative and kinship carer by Assessments Australia dated 16 December 2013, and other documents listed in the letter to the applicant from the Children’s Guardian dated 22 July 2014.

5. The issue before the Tribunal is to decide in these proceedings what “the correct and preferable decision is having regard to the material then before it” including material which may not have been before the Children’s Guardian: section 63 Administrative Decisions Review Act 1997.

The evidence relied upon in the hearing

6. The applicant relied upon the following documentary evidence:

1. The application filed 13 August 2014 including the annexures expressed to be in support of the applicant; Exhibit A1;

2. Documents filed on 7 October 2014 including a statement by the applicant, an extract from the Assessments Australia document, a letter of reference from the daughter of the applicant’s partner, a reference from the applicant’s current employer, a reference from the applicant’s previous employer dated 6 April 2013, and a further reference from the same employer dated 22 July 2010: Exhibit A2;

3. A further and later more detailed letter from the daughter of the applicant’s partner: Exhibit A4 (there was no Exhibit A3);

4. A reference from an elder in a local Aboriginal Association with whom the applicant has some connection since he is also of Indigenous descent: Exhibit A5;

5. A letter from the Australian Taxation Office dated 29 October 2014 in relation to the applicant’s superannuation account, in relation to his former employer: Exhibit A6;

6. An email from the applicant’s current employer confirming his employment since 1 September 2013, identifying that there had been no complaints or concerns about the applicant nor have there been any disciplinary proceedings taken against him. The applicant is a valued employee and the employer stated that he had no difficulties providing a reference for the applicant: Exhibit A7.

7. The respondent relied upon the following documentary material:

1. 5 volumes of paginated material provided to the respondent in response to requests made by the Children’s Guardian pursuant to the Act: Exhibit R1;

2. The criminal history: comprising a bail report produced on 10 August 2013 constituting pages 759 to 781 of the paginated material in Exhibit R1 which the applicant edited and commented upon, by circling in red pen, certain dated entries during the course of his cross examination: Exhibit R2;

3. Documents produced by Sutherland Hospital received by the Tribunal on 31 October 2014, titled Volume 6: Exhibit R3;

4. Documents produced by Sutherland Hospital Received by the Tribunal on 3 November 2014: Exhibit R4;

5. Written submissions on behalf of the respondent received by the Tribunal on 3 November 2014: Exhibit R5.

8. The Tribunal heard oral evidence from a caseworker employed by the Department of Family and Community Services who has casework responsibility for the 3 grandchildren of the applicant’s partner. The children are involved in Children’s Court care proceedings which had a further mention date in November 2014 before later progressing presumably to a hearing. Those grandchildren have been cared for by the applicant in that he has taken them to school and picked them up from school prior to their removal from their mother. The applicant has also provided the grandchildren with support and advice, and has supported his partner in caring for them when they have been in her care. The evidence given by the caseworker will be referred to in more detail later in these reasons.

9. The applicant also gave oral evidence and was cross-examined extensively about his history. The applicant’s partner sat in the hearing with the applicant at the bar table and on occasion provided additional submissions and commentary in support of the applicant’s case. This was permitted by the Tribunal and not objected to by the respondent. The partner’s support and assistance enabled the applicant to provide the Tribunal with cogent and helpful evidence followed by submissions. The Tribunal records its gratitude for the polite and courteous way in which the applicant and his partner conducted themselves in the hearing. The issues to be considered involve a high level of emotional investment for both the applicant and his partner and they both showed a capacity to engage with the issues without becoming unduly distressed.

10. The Tribunal was assisted by oral submissions from the applicant and by counsel for the respondent on 4 November 2014.

11. A statement of fact contained in these reasons is a factual finding based upon the evidence referred to in these reasons.

The Relevant Legal Principles

12. The relevant legal principles to be applied in this matter are referred to in Exhibit R5 at paragraph [3], as those contained in the judgment of the Tribunal in BJB v NSW Office of the Children’s Guardian (No. 2) [2014] NSWCATAD 164 at paragraphs [16]-[47]. A copy of that decision was provided to the applicant and the Tribunal with the written submissions for the respondent. That is not an issue disputed by the applicant and those matters referred to in those paragraphs accurately record at this time the principles by which the Tribunal is bound to make its decision. Some of those matters should be repeated for the benefit of the parties and to record the principles guiding this decision.

13. The Act came into force on 15 June 2013 just prior to the date of the application made to the respondent.

14. The applicant requires a Working with Children Check clearance because he wishes to become an authorised carer with his partner for children under the age of 18 years pursuant to the Children and Young Persons (Care and Protection) Act 1998, therefore engaging in child-related work as defined in section 6 of the Act. A worker must not engage in child-related work unless he holds such a clearance: section 8 of the Act. The applicant cannot be and cannot reside with an authorised carer without a clearance: section 10 of the Act.

15. The objects of the Act are set out in section 3 which provides:

“Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.”

16. The paramount principle to be applied in decisions under the Act is contained in section 4 which provides:

“Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”

17. “Children” is defined in section 5 (1) of the Act to mean “persons under the age of 18 years.”

18. The Tribunal is satisfied that the offences in the applicant’s criminal history referred to in detail later in these reasons are sufficient to trigger a risk assessment requirement under section 15 (1) of the Act. This is because section 14 of the Act requires a risk assessment if any of the matters specified in Schedule 1 of the Act apply to the person and for the reasons which are referred to in the following paragraphs.

19. The matters referred to under Schedule 1 of the Act which triggered a risk assessment by the Children’s Guardian are matters referred to in clause 1 (6) of Schedule 1 being “a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children”.

20. The offence of “armed robbery, robbery with wounding” which occurred on 14 February 1987 was an offence of violence committed on a 16-year-old female cashier during the course of an armed robbery, where the applicant stabbed the cashier in the abdomen with a knife during the course of that robbery. This is a matter which triggers an assessment of risk under clause 1 (2)(a) and/or clause 2 (b) of Schedule 1. The applicant was cross-examined about this incident and his evidence is referred to later in these reasons.

21. The respondent concedes before this Tribunal that clause 1(2) (a) of Schedule 1 was incorrectly referred to in the Risk Assessment Report completed by the respondent when referring to the offence committed by the applicant on 14 September 1996, for which the applicant on 11 April 1997 received a recognisance to be of good behaviour for a period of 2 years, because there was no wounding or causing of bodily injury to a child.

22. The applicant does not take issue with his criminal history as recorded in Exhibit R2 except that it is fair to say that the applicant sought to highlight matters which resulted in an acquittal or where he received a lenient penalty.

23. It is therefore assessed by the Tribunal that the requirement for a risk assessment was triggered pursuant to the relevant parts of the legislation.

24. The current hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.

25. Pursuant to section 27 (4) of the Act “the applicant must fully disclose to the Tribunal any matters relevant to the application.” Because of the lengthy history of the applicant it was a challenge beyond his capacity for the applicant to fully comply with this requirement. The Tribunal is satisfied that the relevant information has been placed before it through the efforts of both parties.

26. The guiding principle to be applied to practice and procedure in the Tribunal “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” consistent with the objects and principles under the Child Protection (Working with Children) Act 2012: section 36 of the CAT Act.

27. The Tribunal may determine its own procedure in relation to any matter for which the CAT Act or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the CAT Act.

28. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

29. The Administrative and Equal Opportunity Division (“AEOD”) of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the CAT Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the CAT Act.

30. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

31. The relevant applicable standard of proof is on the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the CAT Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to ‘any’ material subject of course to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.

32. The simplest statement of the matter before the Tribunal, subject to what is also said in the next two paragraphs under the heading “The Issues”, is whether the applicant poses a risk to the safety of children. The test to be applied when considering earlier predecessor legislation is whether the risk is “a real and appreciable risk”: see BYR v Children’s Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children’s Guardian (supra). This is the test to be applied in this decision in accordance with that binding authority.

The issues

33. The primary issue before the Tribunal in this application, as referred to previously in these reasons, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance in relation to the applicant: section 63 Administrative Decisions Review Act 1997.

34. There is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.

Consideration of the Evidence

35. The Tribunal has had the benefit of hearing oral evidence in addition to the documentary evidence. The applicant and the other witnesses called in the hearing were able to be assessed by the Tribunal in relation to their documentary evidence by the answers they gave in questions put to them during the course of the hearing. This is the usual procedure adopted in the hearing of these applications and there was no objection to the interposing of Ms Hill, a caseworker with some knowledge of matters relating to the children for whom the applicant is seeking to provide care, at the commencement of the hearing. This witness has received reports of supervised contact between children and the applicant. This witness also has some knowledge of the alleged physical assault by the applicant of the partner of the mother of the children.

36. The applicant denied this alleged assault. It is clear that the applicant made some entries on Facebook which do not assist the Tribunal to completely accept his denial. It would have been wiser for the applicant to have not made any comments on Facebook containing what appears to be a threat of violence and a limited admission. The Facebook entry in June 2014 states: “Let me tell all you people in [town] that know that [the assault victim] he has bashed [the mother of the children] for last time last night I have had a word with him and told him to get out of town now if I hear of who is letting him in there (sic) house will be getting wat (sic) he is getting and that is a promise no threat so send him on.” See Exhibit R1 Volume 4 pages 17-21 esp. at 20.

35. It was also reported to Ms Hill on 27 June 2014 by the mother of the children that the applicant went to her house “and beat in the back door, off hinges, it can’t lock now… [The applicant] kicked the living shit out of [the assault victim]… [the applicant] is violent, he hasn’t changed from his past, it won’t be good for the boys there … [he] has no self-control when it comes to anger management, he’s proved it again.” See Exhibit R1 Volume 4 pages 17-21 esp. at 17. The reporter of this incident was not made available to be cross-examined by either of the parties. She did, contrary to the reported conversation, later provide references in support of the applicant in this hearing. The caseworker Ms Hill, who was cross-examined, made the file note entry recording the statements by the mother of the children. A finding about this matter of the physical assault, however, cannot on the present state of the evidence be made adversely to the applicant. It does not appear on the evidence that the applicant has been charged with any criminal offence relating to this assault.

36. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address considerations expressed in slightly different language. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it appears appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections. That would fulfil the requirements of both sections, taking into account the nature of the administrative review referred to earlier.

The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused an assessment and a refusal of a clearance or imposition of an interim bar

39. The applicant is not a disqualified person. The applicant, however, has a long criminal history which is relevant to the assessment before the Tribunal. Those offences include matters involving serious acts of violence. The applicant has been in prison serving sentences in relation to convictions for violent crime spanning separate terms of incarceration.

40. The applicant did not raise relevant objection to the material produced by the respondent referring to the incidents of violence and the criminal history of the applicant. As previously noted, because the rules of evidence do not apply in these proceedings, the restrictions imposed by section 91 of the Evidence Act 1995 (NSW) nor any other exclusionary legislative provisions to which reference could be made do not apply: section 38 of the CAT Act. The Tribunal may therefore look at the surrounding circumstances in relation to the offences upon which the applicant has been convicted.

41. The applicant’s criminal history commences on 7 November 1979 when the applicant was aged 12. The applicant was released on probation by the Children’s Court for a period of 12 months to be of good behaviour, for a stealing offence. This was followed by a break enter and steal offence within that 12 month period, for which he was placed on probation for a period of 2 years to be of good behaviour. Unfortunately, the applicant was committed to an institution for subsequent offences which included forgery, stealing and stealing a motor vehicle.

42. The first serious matter to be considered relevant to this application, is the offence referred to as ‘assault female’ on 6 October 1983 where the applicant was alleged to have grabbed the victim on her right breast. The victim was a 15-year-old female student. The applicant was aged 16, since he was born in early 1967. The offence is not a Schedule 2 offence under the Act and the offence was committed whilst the applicant was a child himself and the schedule does not apply unless the offence was committed as an adult: section 18 (1) of the Act. It would appear from the records produced by the relevant authorities that the applicant was fined $300, or in default 12 days detention for this offence.

43. On 16 December 1984 when the applicant was aged 17 there was a dispute with his neighbour who was aged 50. The facts recorded in the Police documents are that the applicant swung an axe at the neighbour in the front yard of the neighbour’s home at 3:30 pm and chased the neighbour inside the house. The applicant commenced to smash the front door with the axe. The applicant attacked the neighbour’s car parked in the driveway but denies swinging the axe through the rear window of the car, however, he admitted to throwing a rock through the neighbour’s window. There was other damage caused inside a bedroom. It was recorded that the applicant proceeded to the rear screen door and kicked it causing damage. The neighbour’s daughter was present and is recorded by the police as a witness. The police record does not state the age of the daughter.

44. On 10 June 1985 the applicant’s criminal history records that the applicant committed an offence of attempting to steal a motor vehicle for which he was sentenced on 1 July 1985. The applicant is stated to have received a sentence of 12 months hard labour dating from 10 June 1985 with a non-probation period of 6 months. The applicant was ordered to pay compensation of $260 or 8 days hard labour.

45. On 11 November 1985 when the applicant was aged 18 he was charged with Offensive Behaviour, Evade fare, and Assault under section 493 Crimes Act 1900. Convictions were recorded on the sentencing date of 25 March 1986, together with an order for witness expenses. The Tribunal is reasonably asked to assume from those expenses that the applicant pleaded not guilty, but was found guilty after a hearing.

46. On 14 February 1987 at 2:15 pm when he was aged 20 the applicant entered a Woolworths supermarket and approached the cashier who was a young girl aged 16. The applicant demanded money from the cashier with a knife. It was alleged that he stabbed her in the right side of her abdomen and took money from her and the till. The applicant ran from the store and was followed by witnesses. The applicant was in company with another person. In cross-examination before the Tribunal the applicant stated that he already had the money and she jumped on him causing him to turn around with the knife, stabbing her in the abdomen. The applicant explained in his evidence before the Tribunal that he was addicted to heroin. The applicant also stated that he had no intention to harm anyone. The applicant explained to the Tribunal that most of the times that he previously conducted armed robberies the cashiers opened the till and he put his hand in to remove the money.

47. The applicant was convicted after being committed for trial to the District Court and received a sentence of 9 years for the robbery with wounding charge; for 6 counts of armed robbery he received 8 years on each count; and for the 3 counts of stealing a motor vehicle he received 18 months on each count (presumably served concurrently) and all to date from 20 November 1987.

48. The applicant appealed to the Court of Criminal Appeal, against conviction or sentence, but it is unclear from the history which matters were appealed, and in any event the applicant abandoned that appeal on 23 May 1988. The sentences were undisturbed.

49. On 1 February 1988 the applicant was convicted of assaulting a prison officer and received a sentence of 6 months imprisonment as a result, but was already in prison.

50. On 25 October 1991 applicant was convicted of escaping lawful custody to which he was sentenced to a fixed term of 8 months and eligible for release on parole on 24 June 1992. The applicant’s license to drive was disqualified for 3 years from 7 June 1991.

51. On 23 November 1993 the applicant received a sentence of imprisonment from the Local Court for a total period of 3 months in relation to a number of charges including assault occasioning actual bodily harm which were to be served concurrently. The list of charges which the applicant faced were drive whilst disqualified, stealing, possession of a prohibited drug, resist arrest, assault, fail to appear, resist arrest, fail to appear (first instance warrant), assault occasioning actual bodily harm. The circumstances giving rise to this sentence of imprisonment are concerning.

52. The police observed the applicant on 22 November 1993 in the morning talking to 2 other people when he and another person ran from the police into a nearby supermarket. Police approached him, searched his clothing and found prohibited drugs. The applicant resisted arrest, causing police to wrestle with him to the ground for about 2 minutes until he was subdued. When he was taken to a police station there were found to be 3 first instance warrants for the applicant’s arrest.

53. The events giving rise to the assault occasioning actual bodily harm offence, for which the applicant originally failed to appear in court, occurred on 19 December 1992. The applicant attended the twenty-first birthday party for his younger sister held at a local Community Centre. The applicant’s younger brother aged 19 was packing up things from the party when the applicant approached him from behind. The applicant swung him around and punched him in the chin causing him to bleed profusely. The applicant’s mother and her boyfriend came out of the Community Centre and intervened. The applicant punched his mother in the face and hit her left knee with a broom handle. The applicant was only a few months from turning 26 years of age at the time.

54. On 19 September 1996 the applicant who was aged 29, committed an offence of indictable assault, for which he was found guilty on 11 April 1997 at the Local Court, which then sentenced him to be of good behaviour for a period of 2 years and accept the supervision of the Probation and Parole Service. The victim was aged 16 years. It was alleged by the police, and presumably these facts were the basis of the conviction, that the applicant and his de facto partner walked past a group of young males and a piece of apple was thrown at the applicant by one of the group. This caused the applicant to yell: “Who the fuck threw the apple?” A verbal altercation then took place. The applicant left the group and returned to his apartment. After his return the victim alleged that the applicant pulled out a gun and placed the barrel against the centre of the victim’s forehead. The applicant was alleged to have said: “I’ll blow your fucking head off.” The victim replied: “Go for it, by the time you do that all the boys will be on top of you.” The applicant responded: “I don’t care I’ve got 6 bullets here.” The victim again said: “Go for it.” The applicant and his de facto partner walked away and caught the train to another suburb. Police later attended the unit and searched it but could not locate any gun.

55. The applicant was electronically interviewed and denied using a firearm. The applicant alleged the victim pulled out a knife. The applicant stated that he had a weapon in his unit which he described as “having nails protruding from it” for protection but alleged that he could not locate it. The applicant stated that he grabbed the victim by the jumper and pushed him against a fence. The police alleged that during the search of the unit it was observed there was an unravelled T-shirt and a red coloured plastic bag on the bed. Presumably, the insinuation was that a gun had been in the bag and wrapped in the T-shirt. During the recorded interview the applicant stated that he looked for the weapon he described but couldn’t find it. Before he went upstairs the applicant said to the victim: “You wanna, you wanna pull weapons out and play games, I’ll get something and we’ll play games hey?” The applicant went inside. The applicant stated that upon his return he grabbed the youth and held his fist up against the victim’s face and stated: “You want to pull knifes out on me mate, I’ll stick it up your arse… If I hit you, mate, I'll break your jaw and knock you out.”

56. The applicant stated that he had his young son in the pram and started pushing him. The applicant alleged something else was said and the de facto partner walked back to the victim and started saying things to him. The applicant, his de facto and infant son then left to go to the train station.

57. It was submitted by the respondent that the applicant reacted to provocation by the youth by escalating violence and confronting him rather than walking away. It is clear that the difference in age between himself and the victim made no impact upon the applicant and the fact that his infant son was present, did not, but ought to have modified his aggressive response.

58. On 26 December 1997 the applicant was charged with an assault on a correctional officer while visiting his de facto partner at a Correctional Centre. The applicant’s infant son was also present on this occasion. The applicant was observed to go to the table at which his de facto partner was bottle-feeding the baby and the applicant took the baby from her arms. The applicant was yelling loudly and went to leave the visiting area. The applicant, then with the baby under his right arm, was seen to yell abuse to a correctional officer directly into his face. The baby was removed from the applicant. The applicant admitted that he had been drinking before entering the visiting area. The applicant threatened the correctional officer with assault by his mates.

59. The applicant was sentenced to serve 100 hours of community service. During his oral evidence to the Tribunal the applicant did not accept responsibility for his unnecessarily aggressive behaviour in the presence of his child and sought to blame others for his unacceptable behaviour.

60. The applicant and the mother of his children had been in a relationship for about 10 years prior to 11 September 2002. On that date the partner reported to the police that the relationship had ended in 1999. The applicant was alleged to be threatening to his former partner. The partner alleged that the applicant threatened to kill her on 9 September 2002. Subsequently, the partner obtained 7 interim Apprehended Violence Orders against the applicant: Exhibit R1 Volume 4 page 165. The last of those interim Apprehended Violence Orders appears to have expired on 23 April 2003. The applicant stated to the Tribunal that the allegations made by his former partner were simply allegations. The clear implication from the applicant’s evidence is that there was no substance to the allegations.

61. However, the records produced to the respondent by the child welfare authority evidences numerous complaints by the former partner, including attending at a hospital for treatment of wounds suffered allegedly as the result of domestic violence witnessed by the children. Other concerns raised in those documents relate to the children witnessing violence between their parents and other persons. The children’s preschool reported on 21 November 2000 the applicant accused his partner, at the front gate of preschool, of using all the methadone and stating that he was going to kill her. The applicant brought and collected the children to and from preschool until 28 November 2000. The partner was observed by the preschool on that date to have grazes all over her face. The children disclosed during interview that “dad hits mum”.

62. On 31 October 2001 the applicant’s family was requested to leave the caravan Park in which they were living. The reasons for eviction were the allegations of violence between the applicant and his partner, the applicant’s drinking, and the applicant’s threats to staff at the caravan Park which resulted in police action.

63. On 23 January 2002 proceedings were commenced in the Children’s Court in relation to the applicant’s 2 children. The children were placed under the supervision of the child welfare authority for a period of 12 months.

64. On 8 February 2003 the applicant attended a Police Station to make complaints about his children in a child welfare matter. According to the child welfare authority records there was an incident between the applicant and the mother of the children. This exposed the children to domestic violence contrary to prior undertakings to the Children’s Court given by both parents. The applicant became agitated and abusive towards police. He grabbed one of his children by the arm (the 5-year-old girl) and walked towards the front glass doors of the police station. The applicant yelled abuse at police and kicked the front doors of the police station open. The applicant again kicked the front door of the police station causing the bottom glass portion of the door to shatter. The applicant was arrested for the damage to the door. Upon being arrested the applicant is alleged to have said: “I’m an idiot.” The applicant was interviewed by a caseworker at the police station. The applicant is alleged to have said: “I am not violent. I admit losing my temper. I kicked the door. Can you blame me. She stabbed me and assaulted me last night.” The applicant showed the caseworker two superficial wounds on his stomach and said that the children’s mother stabbed him in the presence of the children. Both children were taken to authorised foster carers.

65. On 26 February 2003 the applicant’s former de facto partner made a statement/complaint to police that the applicant had harassed her by buzzing her security buzzer on a number of occasions on 8 February 2003. On the latest occasion it was alleged that the applicant called her with a ruse to the security door and said: “I’ve got something to sort out with you.” At the same time he allegedly lifted his shirt and displayed a knife. The former partner requested that police apply for an apprehended violence order.

66. The applicant behaved aggressively towards staff at the Commonwealth Bank in a country town on 3 October 2003. The applicant abused and threatened the staff. The applicant became loud and obnoxious when his friend did not receive money from the bank. The applicant was told that the bank was following regulations. The applicant is alleged to have stated: “It’s no wonder people come here and stick shot guns in your faces.” The applicant was also obnoxious, rude and loud with the police when they were called. The applicant was given a move on direction with which he complied. No further action was taken.

67. The applicant was requested to leave the home of a female on 14 April 2004 who contacted police due to the aggression of the applicant. It was alleged that the applicant walked through the front door when leaving the premises and while doing so he pushed the female who was at the time holding a 5-month-old baby. It was alleged that there was no relationship between the applicant and the female, but they knew each other through friends. The female indicated that she would take further action through the Local Court if any further incidents occurred.

68. The applicant attended hospital on 9 February 2005 suffering from an injured right ankle and a graze on his left hand. The applicant alleged he fell out of a car 5 days previously. It was reported by the pharmacist from the methadone clinic that staff reported the applicant had been in some trouble and people were looking for him: Exhibit R3.

69. The applicant attended hospital on 6 April 2005 reporting he had an argument with his ex-wife over money and his daughter. The applicant alleged his ex-wife hit him with a golf club multiple times to the head, back and chest. The applicant alleged he lost consciousness. The applicant threatened to suicide by drugs or hanging and it is reported he said it would all be over in 20 minutes. The applicant alleged his daughter witnessed the assault by his former partner. The applicant was keen to leave the hospital because he alleged police were after him in relation to the assault. The applicant absconded hospital. A schedule 2 was prepared (pursuant to sections 21 and 22 of the Mental Health Act 1990) and sent to the police: Exhibit R3 and Exhibit R4.

39. On 19 July 2005 the applicant was involved in a dispute outside a methadone clinic where it was alleged that he punched a woman 6 times to the face and head region. The clinic staff notified police and security. The applicant was arrested, cautioned and taken to the police station. The applicant denied the facts under cross-examination in his evidence to the Tribunal, but said there was an incident involving his then girlfriend. The applicant was charged with assault occasioning actual bodily harm but this was withdrawn and dismissed on 31 October 2005. The victim did not attend court that day according to the evidence given by the applicant.

40. The applicant attended hospital the following day on 20 July 2005 complaining of an alleged assault where he was head-butted and had a bleeding nose. The applicant had a laceration to his left upper lip and stated he was kicked in the left lower abdomen. The applicant refused to stay on an ambulance trolley, was swearing and kicked the front door. Security were called to the emergency Department on 2 occasions due to the applicant’s behaviour: Exhibit R3.

41. On 11 November 2005 the applicant was searched by police. The police were patrolling an area where they saw vehicles banked up and observed 2 males, one of whom was the applicant. The other male alleged the applicant started an argument with him, and he believed the applicant was in possession of a gun. The applicant submitted to a search and no gun or other items were found.

42. On 15 December 2005 the applicant was involved in antisocial behaviour when he demanded entry to the unit of a friend’s girlfriend to retrieve the packet of cigarettes he alleged the friend had taken. The applicant was requested by police to leave the immediate area after becoming boisterous and causing pedestrians to leave the location. The applicant was alleged to have attended another location and continued to abuse the friend from the balcony of that unit. The applicant and his friend then engaged in a fight on the street. Shopkeepers saw the 2 men fighting. Both men appeared to police to be under the influence of intoxicants. No further action was taken.

43. The applicant presented the following day to hospital on 16 December 2005 complaining of pain in his shoulder and left periorbital bruising from an alleged fight the previous day. The applicant’s dislocated shoulder was relocated with use of nitrous oxide as an anaesthetic: Exhibit R3. The applicant alleged that he was injured as a result of a very low speed car reversing which bumped into him.

44. On 25 March 2006 the applicant, then aged 40, was involved in a dispute at a hotel. The victim alleged that the applicant abused him in the hotel threatening him with violence. The victim went to the car park situated next door to the hotel. The victim stated that the applicant punched him in the mouth causing his front tooth to be dislodged. The applicant was alleged to have bitten/torn the victim on his left ear causing a deep laceration requiring gluing because it was unable to be sutured. The applicant was sentenced to a period of imprisonment for 12 months on 4 December 2006. The applicant appealed to the District Court where the conviction was confirmed on 2 March 2007. The applicant was also sentenced to imprisonment of 6 months on the same day, 4 December 2006 in the Local Court, for larceny. That conviction was also appealed to the District Court and confirmed on 2 March 2007. An apprehended violence order was issued to protect the victim from the applicant and that order expired on 5 June 2008.

45. On 9 May 2007 an incident involving the applicant was reported to police. The applicant denied the facts when they were put to him in cross-examination in the Tribunal. It was alleged that the applicant and his girlfriend were arguing with other male(s). The applicant is alleged to have screamed at one of the males and thrown a punch. The punch was alleged to have hit his girlfriend in the face. There were a number of shoppers in the area at the time. The applicant was alleged to have also thrown a bottle which smashed. The applicant was swearing and acting in a violent and abusive manner according to the report to the police. The applicant was cautioned by the police. It was noted by the police that the applicant and his girlfriend appeared drug affected. The police observed that the applicant had skin off his knuckles on his right hand and the knuckles were bleeding. The girlfriend was observed to have a redness around her chin. The applicant denied an altercation occurred. The applicant is alleged to have shouted to police: “You c***** have got nothing, I will fucken rip your fucken head off and bite your fucken nose off.” The police arrested the applicant who continued to shout obscenities including: “you cock sucking c***, police brutality, I’m ringing the Royal Commission, I’ll fucken kill you c***.” It was alleged that this incident was located close to a primary school where approximately 50 young children were in the playground in direct hearing of the applicant. The applicant is alleged to have stated further obscenities and threatened one of the police constables saying: “I’ll kill you for this, I’ll get a gun and blow your fucking head, you c***.” The applicant is alleged to have attempted to head-butt the police officer. The applicant and his girlfriend both refused to provide any further information. The girlfriend denied that she had been assaulted. The charges were dismissed by the Local Court on 18 September 2007.

46. The applicant was under the supervision of the Probation and Parole Service who spoke to the police on the same day as this incident on 9 May 2007 and made an entry in their records confirming the report made to them in similar terms to that recorded in the police records. On the next day, 10 May 2007, the notes from the Probation and Parole Service records (at Exhibit R1 Volume 3 page 1133) the following:

“Client presented with his mother. He was in the police cells at [suburb] Police for resist arrest and creating a disturbance. He had woken up at 10 am and his partner was not at the premises and his mobile phone was missing. He left the premises to run to the train station to catch a train to meet his mum to collect his methadone from [a different suburb] and he saw his partner with another guy. He apparently asked for his phone and a scuffle broke out and police attempted to arrest parolee. Client was also challenged about being in Sydney without advising this office. He was directed not to just go to Sydney, he had to have permission to go. He also said he went one day last week to pick up his clothes that his ex-partner still had in her possession.”

78. It is apparent from those records and the allegations made by the police that the applicant was in breach of his parole conditions when he participated in this antisocial incident. Particular relevance to this application are the facts that the incident occurred in a public place, close to a school where there were approximately 50 young schoolgirls in the playground who were consequently exposed to the language and violence of the applicant. The denials of the applicant to the Tribunal are not credible.

79. On 18 May 2009, two years after the previous offensive conduct, the applicant was issued with a fine for “using offensive language in or near a public place or school” which was paid on 1 September 2009. The applicant was stopped by the police for the purposes of a breath test. The applicant exited his vehicle yelling to the police: “What the fuck do you want.” There were a number of other people (about 8) present. The applicant continued to swear at the police saying: “suck my cock”, “you fucking mongrel dog”, “mongrel piece of shit” and “I’ll swear at the magistrate too.” The respondent submitted that this incident occurred years after the applicant had undertaken anger management counselling. The respondent relied upon this incident as evidence that the applicant cannot control his temper.

80. The applicant was placed on a bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for cultivating a prohibited plant, marijuana/cannabis, and received a section 10 dismissal in relation to possession of a prohibited plant on 3 August 2010. The applicant was on a methadone program at that time.

81. On 21 February 2012 final orders were made in the Children’s Court in relation to the applicant’s son placing him under the parental responsibility of the Minister for Family and Community Services until the age of 18: Exhibit R1 Volume 5.

82. The applicant had a dispute with one of his neighbours who was a 25-year-old female at about 8pm on 9 June 2012. A 48-year-old female reported to the police that the younger woman was abusing her and that there would be retaliation soon. The younger woman then notified the police and alleged that the applicant had assaulted her. The younger woman blamed the older woman for having her evicted, and agreed that she had her music turned up loud and it was “techno” music but it was not late and the other neighbours contact her if there was a problem with the music. The applicant who was then 45 years old, denied the alleged assault. No further police action was taken.

83. On 25 November 2012 the applicant was involved in an altercation with a neighbour. The police could not determine who was at fault and no further action was taken. However, the applicant and the neighbour were involved in a physical altercation where they both punched each other. The neighbour approached the applicant due to the fact that an inflatable swimming pool in the applicant’s yard emptied and caused water to enter the neighbour’s property. When the applicant was confronted by the neighbour he responded aggressively. Both parties alleged the other threw the first punch and that they were only acting in self-defence. The neighbour was a 60-year-old male. The applicant was aged 45 at the time.

84. Later, on the same date, a 58-year-old female complained to the police that the applicant had yelled out to her: “What are you looking at, fuck off or I’ll set my dog on to you.” The woman saw the dog but was concerned about the applicant’s behaviour, because she stated that she had never been spoken to like that before. No further police action was taken.

85. The applicant responded to these allegations in his oral evidence by stating that he knew the neighbour from Goulburn prison, and the woman hit the applicant with a tomato stake. The applicant denied what the female said to the police occurred.

86. It was the applicant’s evidence and submissions to the Tribunal that he would like his partner’ s grandsons to learn to grow up in a loving family and maybe help to breed the applicant’s dogs which the applicant stated were “Staffies”: the Tribunal understands them to be Staffordshire Terriers. The applicant also referred to his disgust at the way the mother of 3 children who he wishes to care for, and her partner, treated their pet animal (a pup) in another Facebook entry at about the same time as the Facebook entry referred to earlier in these reasons: Exhibit R1 Volume 4 pages 21-22.

87. The applicant has received convictions for driving with a prescribed content of alcohol in his blood on numerous occasions. The applicant states that he has not consumed alcohol at all since his last conviction which was confirmed on appeal to the District Court on 11 January 2010. The District Court reduced the fine to $200 from the $400 originally imposed, but confirmed the period of disqualification of 3 months dating from 11 January 2010 concluding 10 April 2010. The date of the offence was 24 December 2008.

88. It can be seen that the applicant has been convicted of serious offences involving acts of violence towards children and in the presence of children. The applicant has engaged in conduct which shows a pattern of behaviour which is a risk to the safety of and may cause harm to children.

The period of time since those offences or matters occurred and the conduct of the person since they occurred

89. The most recent offence or matter, is the alleged assault in or about June 2014 on the current partner of the mother of the 3 grandchildren of the applicant’s partner. For the reasons which have already been identified, a finding adverse to the applicant cannot be made about these allegations. The submission of the respondent concerning these allegations, based on the Facebook entry, is that trouble seems to follow the applicant.

90. Prior to the more recent allegations the applicant was involved in a violent episode with his neighbour in 2012, referred to earlier in these reasons.

91. The applicant submits that he is a changed person and does not deny the events which have previously been recorded. The applicant submits that there is no violence in his current relationship. The applicant states that his attitude will be different to that which it once was. The applicant states that if he could change the past then he would do so. The applicant accepted that the offences committed by him would have an effect on safety of children. The applicant submits that he has completed two anger management courses as part of his parole conditions. The applicant states that he has not consumed alcohol since 24 December 2008, has a good work record for the last 7 years, and maintained a heroin free lifestyle while receiving methadone.

92. The respondent submits that offences of violence have occurred after the applicant had completed his anger management courses.

93. The applicant accepts that if his behaviour were repeated it would have a serious effect upon children. The applicant has had very few extended periods in his life where he has not relapsed into violent and antisocial behaviours.

The age of the person at the time the offences or matters occurred

94. The applicant was aged between 12 and 43 during the period of the commission of his offences from 1979 to 2010.

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

95. The female assaulted by the applicant on 6 October 1983 was aged 15. The female cashier who the applicant stabbed during the course of committing an armed robbery on 14 February 1987 was aged 16. The victim of the assault on 19 September 1996 was aged 16.

96. Each of the children who were victims of the applicant’s violence were vulnerable due to their age.

97. The applicant’s own children have been adversely affected by exposure to violent and drug addicted parents from a very early age. The applicant’s children are likely to suffer permanent psychological and neurological damage due to their early exposure to the applicant’s lifestyle and conduct.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person

98. The applicant was aged between the ages of 12 and 43 during the times of his antisocial behaviours and commenced at age 16 for those offences involving violence.

99. The difference in age between the applicant and his victims ranges from one year for the earliest of the offences, to a difference of 13 years for the offence on 19 September 1996.

100. The difference in age is not a major factor in the applicant’s offending behaviours. The distinguishing feature is that the applicant does not regulate his behaviours. The applicant has behaved inappropriately in the presence of young children by assaulting his victims. The effect upon those young children of his frightening behaviour is clearly something which the applicant should have had regard to, but clearly did not, when he committed those offences.

Whether the person knew, or could reasonably have known that the victim was a child

101. The applicant ought to have known that the 2 females were children. The applicant’s evidence was that he did not know that the male victim was a child and it was submitted by the respondent that he did not give this matter any thought. There is significant evidentiary material supporting that submission.

102. It is observed that some of the applicant’s offences occurred in the presence of children and one as young as 5 months of age. One of the victims of assault was his own mother.

103. The applicant does not appear to consider the impact of his behaviours upon any other person.

The person’s present age

104. The applicant will be aged 48 in the very near future.

105. The applicant may have matured and reflected upon his behaviours due to his further experiences and consideration of the consequences of past experiences, but the question remains whether the applicant has the capacity to implement any changes to his patterns of behaviour. Those patterns of behaviour have become the default manner of interactions between the applicant and those with any relationship to him in times of stress or difficulty. The applicant may not have the capacity to change those patterns of behaviour without assistance from skilled professionals.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

106. The applicant has a serious criminal history involving numerous incidents of violence. It is apparent that from the applicant’s behaviour he shows a lack of respect for authority, a disregard for the law and the norms of prosocial behaviour.

107. The applicant has not provided any evidence of successfully completing a program of self-development concerning his assault of and attitudes towards others, and displaying his violent attitudes and behaviours in the presence of children.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

108. This is the issue which is of most significance. A repetition of the offences or conduct which the applicant has committed in the past would have a significant impact on any children who are the victims, or should they be exposed to the acts of violence.

109. There has been no expert evidence provided by the applicant to assist the Tribunal in its determination of the likelihood of any repetition of violent offences. The past is the main tool at the Tribunal’s disposal to predict the likelihood of any repetition.

110. The caseworker from Department of Family and Community Services provided a documentary reference to the respondent dated 15 April 2014 in which she stated that the applicant is assessed to be “currently unsafe to care for the subject children” and identified him as a person associated with causing harm as a result of the investigation of allegations concerning his children: Exhibit R1 Volume 1 pages 192-193.

111. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from “child abuse”. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act, and that is not achieved by giving the applicant any further chances to prove he may be a changed person. The risk to children posed by the applicant is too great and unacceptable.

112. There is no relevant definition of “child abuse” contained within the Act.

113. The Tribunal has previously referred to definitions of “child abuse” which may be useful in considering the definition of that term as used in the Act: see BJB v NSW Office of the Children’s Guardian (No. 2) [2014] NSWCATAD 164 at paragraphs [114]-[119].

114. As the Tribunal has previously observed, the Act is part of a suite of legislation designed to protect children. The Children’s Guardian who is responsible for the oversight of the Act is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). There is an offence created in section 227 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) which is as follows:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) the physical development or health of the child or young person being significantly harmed,

is guilty of an offence.

Maximum penalty: 200 penalty units”

115. The definition of “abuse” in section 4 (1) of the Family Law Act 1975 (Cth) is similar.

116. The evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed to children. That risk of harm may also constitute child abuse as it is defined in the relevant legislation.

117. The behaviour of the applicant over a number of years has been beyond reasonable community norms. The behaviour is sufficiently recent, and if repeated, would do significant harm. There are very few identified mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence of concerning behaviour is over a significant period, and there has been little if no genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not properly considered to be a factor that mitigates risk.

118. There is a likelihood that the applicant will repeat his behaviour and conduct which led to the offences identified earlier in these reasons. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children.

Any information given by the applicant in, or in relation to, the application

119. The applicant has provided limited information primarily directed to supporting his application to both the Children’s Guardian and to the Tribunal. The Children’s Guardian considered that the applicant did not provide sufficient information to mitigate his level of risk.

120. The applicant has not provided all of the relevant information, but the respondent has been able to provide an overwhelming body of evidence in support its contentions.

Any other matters that the Children’s Guardian considers necessary

121. The Children’s Guardian referred in the risk assessment to allegations which were made against the applicant of sexually abusing his biological son in 2006. There appears little corroborative evidence of this allegation. The report concerning this matter relied upon in the risk assessment report conducted by the Children’s Guardian could be read equivocally.

122. There has been no verification of the applicant’s participation in a formal way with any intervention to address alcohol or drug issues. The Children’s Guardian considers such information essential.

123. Relatively recently the applicant has received threatening telephone calls from his biological son who is now aged 19. When the son could not contact the applicant by telephone he left text messages which were just as concerning and violently threatening. The applicant attended the police station on 12 March 2013 to provide a statement in relation to the threats. The police were to seek an apprehended violence order for the protection of the applicant and his de facto partner: Exhibit R1 Volume 5 pages 3-5.

124. The applicant’s violence and antisocial behaviours may have had an impact upon the development of the applicant’s now adult son, but that is a matter which only an expert could attempt to determine with any confidence. However, it is clear that the applicant’s responses to the text messages sent to him by his son do not alleviate the Tribunal’s assessment of the applicant’s risk to the safety of children: see Exhibit R1 Volume 5 pages 3-5.

125. This additional information has a bearing upon an assessment of risk.

Determination

126. During his oral evidence to the Tribunal the applicant did not accept responsibility for his unnecessarily aggressive behaviour in the presence of his child and other children and sought to blame others for his unacceptable behaviour.

127. The evidence referred to in these reasons establishes that the applicant poses a real and appreciable risk to the safety of children.

128. The evidence received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children.

129. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

130. The Tribunal considers that the evidence is overwhelmingly supportive of a determination that children would not be protected from child abuse if the applicant was granted a Working with Children check clearance.

131. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance.

Orders

132. The order of the Tribunal therefore is:

1. The decision of the Children’s Guardian dated 22 July 2014 to refuse to grant the applicant a Working with Children check clearance is affirmed.

2. The application for review of the decision of the Children’s Guardian filed 13 August 2014 is otherwise refused and dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 12 January 2015