BRY v Children's Guardian

[2015] NSWCATAD 220

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BRY v Children’s Guardian [2015] NSWCATAD 220
Hearing dates:	15 September 2015
Decision date:	22 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Anderson Senior Member P Foreman General Member
Decision:	The Tribunal declares that the Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012
Catchwords:	ADMINISTRATIVE LAW – child protection – enabling order - working with children check clearance – disqualified person – disqualifying offence is conviction in 2003 of indecent assault – no further disqualifying offences – whether Applicant has discharged onus to rebut statutory presumption that he poses a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2014 Commissioner for Children and Young People Act 1998 Civil and Administrative Tribunal Act 2013 Criminal (Sentencing Procedure) Act 1999
Cases Cited:	Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523
Category:	Principal judgment
Parties:	BRY (Applicant) Children’s Guardian (Respondent)
Representation:	BRY in person (Applicant) Ms Hartstein (Respondent)
File Number(s):	1510126
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the Applicant and the name of any other person from which the name of the Applicant could be identified is not to be published or broadcast without the leave of the Tribunal.

REASONS FOR DECISION

Background

1. The Applicant is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (the Act) and seeks an enabling order, pursuant to section 28 of that Act, declaring that he not be treated as a ‘disqualified person’ so that he can be granted a working with children check clearance under the Act. The Applicant is seeking a clearance to enable him to work with Indigenous youth in his local community.

2. The Applicant is a ‘disqualified person’ by reason of his conviction on 28 April 2003 in the Local Court of two counts of indecent assault. On that offence (and other non-disqualifying offences), the court sentenced the Applicant to 6 months’ imprisonment suspended on entering into a bond to be of good behaviour for a period of 6 months.

3. On 14 August 2014, the Applicant made an application to the Respondent for a working with children check clearance. On 2 October 2014, the Respondent refused to grant him a clearance, as required under subsection 18(1) of the Act because of his disqualifying offence.

4. On 26 February 2015, the Tribunal received the Applicant’s application for an enabling order.

5. At a directions hearing, the Tribunal made orders relating to the filing and service of documents by the Respondent and the Applicant, and the matter was listed for hearing on 15 September 2015.

6. At the conclusion of the hearing, the Tribunal reserved its decision. The evidence and the Tribunal’s findings are set out below.

The legal framework

7. Section 4 of the Child Protection (Working with Children) Act 2012 provides that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act.

8. Subsection 8(1) of the Act prohibits a person from engaging in ‘child-related work’, unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the Children’s Guardian.

9. Subsection 18(1) provides that the Respondent must refuse an application for a clearance where the Applicant is a disqualified person by reason of having been ‘convicted’ of an offence falling within Schedule 2 of the Act. In this case, the Applicant’s conviction for indecent assault renders him a “disqualified person”.

10. Subsection 28(1) of the Act makes provision for a disqualified person to make an application to the Tribunal for an enabling order.

11. Where such an application is made, section 28 also provides the following:

28 Orders relating to disqualified and ineligible persons

(1) …

…

(4) The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An Applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to … grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the Applicant proves to the contrary, that the Applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

(9) …

12. Section 30 sets out how an application under section 28 is to be determined by the Tribunal. It is in the following terms:

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

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

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the offences or matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person’s present age,

(h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(j) any information given by the Applicant in, or in relation to, the application,

(k) any other matters that the Children’s Guardian considers necessary.

Issue

13. The issue at hearing was whether the Applicant had discharged his onus to rebut the statutory presumption, in subsection 28(7) of the Act, that he poses a risk to the safety of children.

14. The meaning of the word ‘risk’ was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

‘What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children.’

15. These remarks have been accepted to equally apply to the word “risk” as it appears in the 2012 Act: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 (BKE), at [26].

16. In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an Applicant seeks a clearance and whether he/she poses a “risk to the safety of children” in those circumstances. Instead, an Applicant is “subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area.”

17. Finally, the jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.

Practice and Procedure

18. 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 Act. Civil and Administrative Tribunal Act 2013, s 36.

19. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67.

20. Procedural fairness and other aspects of natural justice, of course, 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 Balencio (1987) 8 NSWLR 436.

21. At [29], in BKE, Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an Applicant had sexually abused a child in circumstances where the Applicant had not been convicted of doing so. At [30], His Honour said “significant guidance as to the approach to be adopted” in such cases could be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal’s fact finding task as follows:

“33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an Applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

Evidence before the Tribunal

22. The Respondent tendered into evidence correspondence to and from the Applicant, the Applicant’s criminal record, relevant court files, police records and documents produced in response to other enquiries made by the Respondent to various bodies, including the Department of Family and Communities, NSW Health, and the Applicant’s previous employers.

23. The Applicant relied on his application and supporting material, including a letter dated 21 February 2015, various letters of support from his family, friends, and his former and current partners. The Applicant also relied upon a psychological assessment report from June 2015 by Mr Martin Finnegan, Provisional Psychologist and Mr Paul Jensen, Clinical Psychologist.

24. The Applicant, his mother and brother, and Mr Finnegan gave oral evidence at the hearing and were cross-examined by counsel for the Respondent.

25. The evidence is now considered under each of the subheadings of sections 30(1) of the Act.

Seriousness of the matters that caused the refusal of the Applicant’s application for a clearance or imposition of an interim bar

26. The matters that caused the refusal of the Applicant’s application for a clearance was the conviction in 2003 of two counts of indecent assault. The Applicant was also convicted of three counts of assault arising out of the same facts.

27. The police facts indicate that on the evening of 15 June 2015 the Applicant was with friends in a nightclub area of a Leagues Club. The victim, who was a female unrelated and unknown to the Applicant, was leaning over a barrier on a staircase talking to another person, when the Applicant put his hand down the back of the victim’s trousers and tried to put his finger between the victim’s buttocks. The victim turned around and pushed the Applicant in the chest, pushing him approximately one metre away. The victim recommenced her conversation with her friend. The Applicant approached the victim again and poked her buttocks and anus over her clothing on two occasions. The victim pushed the Applicant in the chest and said “fuck off”. The Applicant walked towards the victim and spat in her face. With a closed fist he swung his arm in the direction of the head of the victim, who took evasive action by ducking backwards and was not struck. The Applicant moved closer towards the victim and again spat in the victim’s face. These latter three actions of the Applicant comprised the three counts of common assault.

28. The victim reported the incidents to police. The Applicant declined to make any comments in a record of interview and was charged with the various offences.

29. The Applicant pleaded guilty to the offences. Notes from the court file indicate the Applicant admitted pinching the victim on the buttocks and was “most probably drunk at the time”. During an interview with the NSW Probation and Parole Service, the Applicant told the interviewing officer that his finger did not make contact with the victim’s skin, only her clothing. He admits spitting on the victim but said that he did so only after the victim slapped his face. The interviewing officer noted that the Applicant expressed remorse for his actions and recognised the need to address his lifestyle and anti-social behaviour, and was observed to be emotionally fragile.

30. In his evidence before the Tribunal, the Applicant admitted grabbing the victim twice on the bottom and also spitting at her. He said at the time of the commission of the offences he was an alcoholic. He said that it was after going to court for the offences that he decided to give up alcohol. The Applicant acknowledged the victim could have experienced emotional harm as a result of his actions.

31. The Tribunal notes that in relation to the offences, the court imposed a suspended sentence of imprisonment. This indicates that the court did not view the Applicant’s conduct as trivial. Indeed, the fact that the grabbing of the victim’s buttocks occurred twice after the victim had made clear her objection to his conduct renders the Applicant’s actions more serious. The Applicant’s conduct appears to have been committed in the context of alcohol consumption and was opportunistic and gratuitous, rather than premeditated and planned. His conduct, although serious, could not be characterised as being of the most severe type of matters constituting indecent assault.

The period of time since the matters occurred and the conduct of the Applicant since that time

32. It is approximately 13 years and 3 months since the matters occurred. The Applicant does not have any further convictions for sexual offences.

33. However, the Applicant committed various criminal offences following the commission of the disqualifying offences in 2002, and was also a defendant in a personal apprehended violence order in 2003 and an apprehended domestic violence order in 2007. As well, notifications were made to the Department of Family and Community Services (or its predecessor) in 2003 and 2007. In particular, in 2003, the Applicant was observed to hit his former partner with a closed hand while in a vehicle together with their young child seated behind. In 2007, the Applicant and his former partner were involved in a domestic dispute. The Applicant approached the premises where his former partner had taken their children following their dispute, and proceeded to yell outside in the street and refused to leave the area.

34. The Applicant maintains he has not used any illicit substances since prior to entering into drug detoxification and drug rehabilitation in late 2007. His assertion of a lengthy abstinence from drugs and alcohol is corroborated by those who have provided the Applicant with character references, and includes the oral evidence of the Applicant’s mother and brother.

35. Following his rehabilitation, the Applicant gained qualifications and worked as a chef in various hotels and restaurants. He commenced full-time studies earlier this year.

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

36. The Applicant was 21 years of age at the time of the disqualifying offending.

The age of the victim of the any relevant offence or conduct at the time they occurred and any matters relating to vulnerability of the victim

37. The victim’s age is not known. However, the victim was not a child and it appears that she was close in age to the Applicant. She was vulnerable in that she was unrelated to, and did not know, the Applicant. She was in a nightclub of a Leagues Club with other person/s known to her. However, there is limited information about her particular circumstances at the relevant time.

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

38. The difference in age between the Applicant and the victim is not known but is likely to be minimal.

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

39. The victim was not a child.

The Applicant’s present age

40. At the time of the Tribunal hearing the Applicant was 34 years of age.

The seriousness of the Applicant’s total criminal record and the conduct of the Applicant since the matters occurred

41. The Applicant has a criminal record. At the time of his disqualifying offending, he was subject to a good behaviour bond. His convictions for offences subsequent to his disqualifying offence are detailed below.

42. 16.09.2004: Resist or hinder police officer in execution of duty. The Applicant was ordered to enter into a section 9 bond for 3 years, with various conditions including the supervision of the NSW Probation Service, to continue with regular medical and psychological appointments, and to not use any illicit substances. He failed to comply with the condition to be of good behaviour by virtue of subsequent offending and was fined $150 in November 2006.

43. 1.11.2004: Use Offensive Language in/near public place/school. The Applicant was fined $100.

44. 15.02.2006: Behave in offensive manner in/near public place/school. The Applicant was fined $100.

45. 26.05.2008: Stalk/intimidate intend fear of physical /mental harm (2 counts); Resist or hinder police officer in execution of duty; Contravene prohibition/restrictions in order (domestic). The police facts indicate that at the time of the offending, the Applicant and his former partner, who was also the mother of his three young children, had recently ended their relationship. On 21 October 2007, the Applicant went to the victim’s house uninvited and made a series of verbal threats to the victim. He also sat parked outside the premises in a car. The following day, the Applicant parked his car in the driveway of the victim’s home and sounded his horn on a number of occasions.

46. At the time of the offending the victim held fears for her safety, and believed the Applicant was consuming large quantities of illicit substances, making the Applicant violent and irrational. An apprehended domestic violence order was applied for and made.

47. On 2 November 2007, the Applicant went to the victim’s home after agreeing to discuss matters relating to their children. However, he did not agree to leave the premises. The Applicant became angry and began to yell and swear at the victim. Fearing she was about to be assaulted, the victim punched in the Applicant in the head. The Applicant grabbed the victim by the throat, pushed her up against a wall and indicated he was going to have the victim charged with assault.

41. In addition to those offences, on 23 September 2007, the Applicant was observed to be verbally aggressive to people outside a hotel in the early hours of the morning. In particular, he refused police instruction to move on from an area, and resisted arrest.

42. In relation to the offences committed in September and November 2007, the Applicant was sentenced to 7 months’ imprisonment, which was suspended on entering a good behaviour bond, with various conditions that he comply with all reasonable directions as to counselling and treatment regarding education, drug and alcohol rehabilitation, drug and alcohol testing, anger management or any other area of criminogenic behaviour identified, and not to assault, molest, harass or intimidate the victim.

43. On 20 November 2007, the Applicant entered into a drug and alcohol withdrawal unit for detoxification, after which he transferred to a drug and alcohol rehabilitation facility where he remained for several months. The Clinical Director of that facility noted that the Applicant, who had identified abstinence from drugs as being his key goal, had demonstrated significant improvements in all areas.

44. The Applicant’s supervision by the Probation and Parole Service ended in about December 2008. He is recorded as having responded satisfactorily to supervision and inquiries by the Probation and Parole Service with police and the Applicant’s former partner indicated the Applicant appeared to be non-violent and drug-free.

45. The Tribunal notes that in 2010, the Applicant was charged with a stalking offence and an offence of using a carriage service to threaten to kill. A police report alleges the Applicant made a series of telephone calls and text messages to his former partner during which he threatened to harm her. An interim and provisional apprehended violence order was subsequently made.

46. However, the charges against the Applicant did not result in any convictions. Rather, the stalking charge was dismissed and the telephone charge was withdrawn by the prosecution. There was no documentary evidence before the Tribunal as to the reasons for those outcomes, and no transcript of any court proceedings was produced. Rather, the Applicant’s oral evidence, which was corroborated by his mother’s oral evidence, is that the charges could not be sustained due to a lack of evidence. In particular, the oral evidence indicated that telephone records subpoenaed by the prosecution did not disclose the existence of the telephone calls alleged, and there was a finding that evidence may have been fabricated by the victim.

47. The Applicant’s evidence is also corroborated by police records which indicate that although provisional and interim apprehended violence orders were made at the time the Applicant was initially charged, no final apprehended violence order was made by the court.

48. The Tribunal notes that the alleged victim (the Applicant’s former partner) did not refer to these events in the written reference she supplied to the Tribunal. The Tribunal therefore could not take the matter any further, and in the absence of any other evidence, the initial police report cannot be relied upon as proof of the matters alleged to have occurred in 2010. Furthermore, it is evident from her reference that the Applicant’s former partner is now supportive of the Applicant and the changes that he has made to his life.

49. Since the cessation of his alcohol and drug use in the latter part of 2007, the Applicant has not been convicted of any violent or sexual offences. (His conviction in 2008 related to offending which occurred in September and November 2007). He has never been convicted of any offences against children.

The likelihood of any repetition by the Applicant of the conduct and the impact on children of any such repetition

57. The Applicant relied on the report and evidence of Mr Martin Finnegan, Provisional Psychologist, from June 2015. For the purposes of his assessment of the Applicant, it appears that Mr Finnegan was apprised of the majority of the documents produced by the Respondent.

58. The assessment was conducted at the request of the Applicant ostensibly to assess his suitability for future employment as a drug and alcohol counsellor. The Applicant had also indicated to Mr Finnegan that he was seeking an assessment for court purposes as a result of a prior criminal conviction.

59. During the psychological review, the Applicant told Mr Finnegan he had a history of drug and alcohol use, and that he was also diagnosed with depression in the late 1990s. He further disclosed that he had a hospital admission in the context of his mental illness in 2002.

60. [However, medical records obtained by the Respondent indicate that the Applicant was in fact admitted to hospital as an involuntary patient on two occasions, in 2003 and 2004 for recurrent drug-induced psychosis].

61. Mr Finnegan conducted a Personality Assessment Inventory (PAI) of the Applicant. Four validity scales were within the normal range. However, a supplementary indicator revealed the Applicant was likely responding in an overtly defensive manner, suggestive of a level of impulsivity and risk-taking behaviour.

62. A Treatment Rejection (RXR) scale was also employed and is a measure of a person’s interest in psychological or emotional change. The Applicant recorded a high score on the scale, which Mr Finnegan opines may reflect a person who admits to few difficulties and resists efforts to change.

63. Mr Finnegan stated that the Applicant’s strengths in interpersonal relationships may assist in his ambition to work with indigenous youth with drug and alcohol issues. However, Mr Finnegan cautions that there may be a need to address the Applicant’s tendency to impulsivity or risk-taking behaviour, though he notes the Applicant does not see a need to address any psychological issues.

64. The Tribunal accepts the Respondent’s submission that Mr Finnegan’s review of the Applicant was not specifically a risk assessment, and did not employ some of the usual assessment tools such as the Static-99 or Static 2000ER. Mr Finnegan’s evidence is therefore of somewhat limited utility in assessing the Applicant’s risk to the safety of children.

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

65. The Applicant has abstained from alcohol for approximately 12 years and drugs for approximately 8 years. During this period of abstinence, the Applicant has gained qualifications and worked as a chef. However, a knee injury has prevented him from continuing work in that occupation. As a result, the Applicant has commenced studies to gain alternative qualifications. The Applicant is enrolled in a Certificate IV in Alcohol, Other Drugs and Mental Health, with a view to future employment as a drug and alcohol counsellor.

66. The Applicant told the Tribunal that it is his goal to help indigenous youth from going down a path of drug abuse and crime. He wishes to use his own experiences to assist others. He said that when he was undergoing rehabilitation for his own drug problems, he specifically requested a counsellor who had previously been a drug user, believing that engaging with someone with lived experience is particularly beneficial. It is for this reason he believes he can educate young indigenous people on the dangers of drug abuse, and assist them to make better choices in their lives.

67. The Applicant readily acknowledged he has made very poor decisions in his past, and said that his drug use was a major factor. He said his choice of drug at the time was ice, which he said confuses the brain and affects a person’s behaviour. He said he was a heavy user of ice to the extent that he was using it every day at the time of his troubles. He says he has not used drugs and alcohol for approximately 8 and 12 years respectively, and has not relapsed during this time.

68. The Applicant acknowledged the impact domestic violence can have on a household. In particular, the Applicant said that the impact is “massive”, especially in the Aboriginal community. The Applicant said that if you grow up seeing domestic violence, you think it is ok, and it gets carried down through the generations. He said he wishes to be able to help Indigenous people to prevent the cycle continuing.

69. It is evident the Applicant has a close and loving relationship with his family, including his brother Mr D and mother, Mrs S. Mrs S is a tertiary educated Indigenous woman who is also a Justice of the Peace. She has held a number of senior positions in education, health and justice departments of government. More recently, she has also held a senior role in working with children in foster placements. The various police and court records produced by the Respondent indicate Mrs S has been a constant in the Applicant’s life, including during periods when the Applicant was committing criminal offences. Her support and advice was also sought by the Applicant’s former partner during difficulties in her relationship with the Applicant. In her written reference, Mrs S provided details of the Applicant’s background, including in relation to the trauma he suffered as a child. Mrs S accepts the Applicant has a troubled past but indicates that the changes he has made to his life have been marked, and she is confident in his ability to be a role model for young people in the Aboriginal community.

70. The Applicant’s brother, Mr D, is a case manager within the Department of Family and Community Services. Mr D gave evidence about the Applicant’s abilities as a father and his dedication to his three children. Mr D indicated that he had witnessed the Applicant on numerous occasions in the presence of many children during gatherings of extended family, and reported that such interactions have always been positive.

71. The Applicant’s former partner writes positively of the Applicant’s rehabilitation and the shared parenting of their children. She states that the Applicant endeavours to spend as much time as possible with their children, and they are free to spend time with him whenever they desire.

72. According to the Applicant, he and his former partner attended counselling with Relationships Australia in the past, and, notwithstanding periods when an apprehended violence order was in place, they continued to share the care of their children. The Applicant says that he and his former partner have a good relationship and communicate regularly with each other.

73. Other references, including by a senior employee of Aboriginal Affairs and a Director of an Aboriginal Corporation, attest to the Applicant’s abstinence from alcohol and drugs, and the steps that he has taken to change the course of his life. They also refer to the Applicant’s volunteer work in the local community, including with an Indigenous organisation which encourages and promotes the participation of Indigenous people in sporting events. They both strongly support the Applicant in his application for an enabling order, and in his goal to help Indigenous people experiencing issues similar to those which featured in his past.

Any other matters that the Children’s Guardian considers necessary

74. Counsel for the Respondent submits that the psychological evidence cannot be relied upon as an accurate assessment of the Applicant’s risk to the safety of children. Counsel notes the fact that Mr Finnegan is not yet a registered psychologist and has no training in conducting risk assessments.

75. Counsel for the Respondent, however, submits that the Tribunal should accept Mr Finnegan’s opinion that the Applicant may have issues with his ability to maintain his self-control and his impulsivity and tendency for risk-taking. Counsel for the Respondent submits that the Applicant has minimised his disqualifying offending, and has no insight into the damage caused by domestic violence. The Respondent accepts that the Applicant is changing his life around. However, the Respondent submits that this is insufficient for the Tribunal to be satisfied that the Applicant has discharged his onus of proof that he is not a risk to the safety of children.

Conclusions and orders

76. In this matter, the Tribunal is tasked with determining whether the Applicant has discharged his onus to prove that he does not pose a risk to the safety of children.

77. The Applicant comes before the Tribunal with a disqualifying offence and a criminal history which dates from 2000, and which has included matters involving aggression and anti-social behaviour. The existence of those facts gives rise to concern and has required careful consideration by the Tribunal.

78. However, The Tribunal takes into account that the refusal of a working with children check clearance by the Respondent was on the basis of the Applicant’s 2003 conviction for indecent assault. Notably, it was not refused as a result of any other disqualifying offending. Whilst the Applicant’s total criminal record and his conduct since his disqualifying offence is, amongst other factors, relevant to the Tribunal’s determination as to whether the Applicant poses a risk to the safety of children, the Tribunal must give consideration, inter alia, to the seriousness of the offence that gives rise to the Applicant’s disqualification.

79. In this regard, the Tribunal notes that the disqualifying offence was not committed against a child. It occurred 13 years ago, and therefore is not particularly recent conduct. The Applicant was 21 years of age at the time of the offending and was a heavy user of alcohol. His conduct, although clearly not trivial and his intoxication not an excuse, was less serious than other conduct which may constitute an offence of indecent assault.

80. His other (non-disqualifying) offending did not involve any offences against children. His offending, and his actions which led to the granting of apprehended violence orders in respect of his former partner, were committed at a time when the Applicant was in his twenties, was using alcohol and/or illicit drugs on a regular basis, and had not engaged appropriate professional support to address those issues.

81. The Tribunal notes that the Applicant successfully attended rehabilitation in 2007 and 2008. There was some question about the timing of his abstinence from drugs, and in particular, whether it occurred prior to the commission of his last offence in November 2007. In this regard, the Tribunal findings do not turn on the specific dates. It has been established that the Applicant entered rehabilitation in late November 2007 and has maintained his abstinence since that time, as corroborated by his former partner, family and friends. It is also pertinent that the Applicant has had a lack of relevant criminal convictions for almost eight years, and this mainly coincides with his abstinence from alcohol and drugs. The Tribunal finds that the Applicant is genuine in his desire to help Indigenous youth from making similar poor choices, and to encourage them to lead healthier and more productive lives.

82. The Tribunal found the Applicant to be a frank and forthcoming witness. The Tribunal considered that the Applicant has accepted responsibility for his disqualifying offending, and does not seek to minimise his actions nor shy away from the poor conduct and poor choices he has made in the past. The Tribunal is further satisfied that the Applicant has demonstrated insight into the harm caused by his past conduct, and the serious impact of drug and alcohol abuse, sexual assault and domestic violence in the community.

83. In addition, the Tribunal is satisfied that the Applicant has taken appropriate steps to mitigate the risk of further offending, and of relapsing into the circumstances out of which his offending occurred. The Applicant has utilised professional services, namely drug and alcohol detoxification and rehabilitation, to address his use of drugs and alcohol, which featured prominently in his past offending and conduct.

84. The Applicant has matured significantly and has made important changes to his life, which is reflected in his lack of relevant criminal convictions in recent years. He enjoys stable relationships with his current partner and his family. He is actively involved in his children’s lives and in his local community. He has gained qualifications and employment, and is pursuing a course of study. There is now an opportunity for the Applicant to build upon his progress and prevent others from remaining on a path of drugs and crime.

85. Taking into account all of the evidence, both oral and documentary, the submissions of the parties, the objects and principles of the relevant Acts, and having regard to the factors set out in section 30(1) of the Act, the Tribunal is satisfied the Applicant has discharged his onus that he does not pose a risk to the safety of children.

ORDERS

86. Accordingly, the Orders of the Tribunal are as follows:

1. The Tribunal declares that the Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012.

2. The Respondent must grant the Applicant a Working with Children Check Clearance.

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

Registrar

Decision last updated: 22 October 2015