CDX v Children's Guardian

[2016] NSWCATAD 17

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CDX v Children's Guardian [2016] NSWCATAD 17
Hearing dates:	13 January 2016
Date of orders:	22 January 2016
Decision date:	22 January 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson - Senior Member E Hayes - General Member
Decision:	1. The application for review of the decision of the Children's Guardian filed 11 September 2015 is granted. 2. The decision of the Children’s Guardian dated 18 August 2015 to refuse to grant the applicant a Working with Children Check clearance is set aside. 3. The Children’s Guardian shall within 7 days issue to the applicant a Working with Children Check clearance.
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 – extensive criminal history of 5 assault convictions and 2 convictions for assault occasioning actual bodily harm- 3 assault charges and one assault occasioning actual bodily harm charge were withdrawn- convictions for contravening an apprehended domestic violence order and for destroying and damaging property that occurred in circumstances of domestic violence - onus of proof in a review under section 27 - no real and appreciable risk is posed by the applicant to the safety of children- the correct and preferable decision is to set aside the decision of the Children’s Guardian and grant a working with children clearance.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and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) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 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 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWCATAD 65 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children’s Guardian [2013] NSWADT 310 BZU v Children’s Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 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 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CDX (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	1510551
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013- restriction on publication of information that will identify the applicant, any victims, nonprofessional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

Reasons for Decision

Introduction

1. The applicant, known as “CDX” in these proceedings, on 11 September 2015 filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 (“the Act”) concerning a decision of the Children’s Guardian, made on 18 August 2015, 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. The Act came into force on 15 June 2013. The amendments to the Act made in 2015 do not apply to this matter.

3. The applicant applied for a working with children check clearance on 4 December 2013.

4. On 6 July 2015 the Children’s Guardian forwarded a notice of proposed refusal in accordance with section 19 of the Act. The applicant was given the opportunity to submit further information in support of his application.

5. In a letter from the Children’s Guardian to the applicant dated 18 August 2015 the applicant was informed that the Children’s Guardian decided that he poses a risk to children. The applicant wishes to continue to be employed as a worker in the welfare sector. The applicant’s employer requires the applicant to have a working with children check clearance due to the vulnerability of its adult clients who have intellectual disabilities. The applicant is not required to work with children in his role as a support worker and in which role he has worked since November 2011 as a full-time employee. The applicant has in the past worked with children. The applicant apparently previously obtained a clearance pursuant to the repealed legislation. The applicant was refused a Working with Children Clearance preventing him from working in “child-related work”: section 6(2) and section 8 of the Act; Child Protection (Working with Children) Regulation 2013. The applicant is not employed in child-related work and therefore the refusal of clearance by the Children’s Guardian has not impacted upon his employment to date. It is significant to this application that the applicant is employed in a sector where he is required to internalise and think deeply about issues which have also been present in his life, such as substance abuse and homelessness due to abuse, addiction and mental health issues, as well as due to criminal convictions. The applicant’s educational experience is also significant, as will become apparent later in these reasons.

6. The application for review was heard by the Tribunal on 13 January 2016.

7. The issue the Tribunal is to decide in these proceedings is 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 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

8. An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any children, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

9. The Tribunal has been assisted by the written submissions of the applicant and the oral submissions of the parties.

The evidence relied upon in the hearing

10. The applicant relied upon the following documentary material:

1. Application for review dated 7 September 2015 and filed 11 September 2015 annexing letter from the Children’s Guardian dated 18 August 2015, Reasons for Decision dated 18 August 2015 - Exhibit A1;

2. Submissions of the applicant filed 11 November 2015-Exhibit A2;

3. Psychological assessment by Kathryn Wakely dated 8 November 2015-Exhibit A3;

4. Bundle of Documents filed 27 November 2015 2015-Exhibit A4.

11. The respondent relied upon the following documentary material:

1. Volume 1 of documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 20 October 2015- Exhibit R1;

2. Volume 2 of documents filed by the respondent on 20 October 2015 - Exhibit R2;

3. Supplementary documents filed 14 December 2015 - Exhibit R3.

12. The applicant and the psychologist Kathryn Wakely were cross-examined at the hearing.

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

14. The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]:

“…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is 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 [Civil and Administrative Tribunal 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 to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.”

15. The paragraph from the decision in BJB v NSW Office of the Children's Guardian (No 2) is a considered statement of the relevant principles to be applied in a review under section 27 of the Act, based upon High Court authority, and those principles shall be applied in this decision. Further binding support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]:

“Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct.”

16. The effect of the Act and the ‘practical onus’ which falls on a party notwithstanding the principles referred to in the previous two paragraphs of these reasons is as the Act states in section 27(4):

“An applicant must fully disclose to the Tribunal any matters relevant to the application.”

17. The practical or forensic onus but not the legal onus is thus carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that:

“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.” (Citations omitted)

18. The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

19. The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter: see BFX v Children’s Guardian [2014] NSWCATAD 115; BHL v Children’s Guardian [2015] NSWCATAD 46; BHY v Children’s Guardian [2015] NSWCATAD 91; 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; BKE v Office of the Children’s Guardian [2015] NSWSC 523; BKN v Children’s Guardian [2014] NSWCATAD 213; BKP v Children's Guardian [2014] NSWCATAD 207; BKV v Children’s Guardian [2015] NSWCATAD 65; BLD v Children’s Guardian [2015] NSWCATAD 2; BPA v Children’s Guardian [2015] NSWCATAD 36; BZU v Children’s Guardian [2016] NSWCATAD 3. The applicable provisions are referred to now and necessarily involve some repetition of previous statements in earlier decisions, so that the legislative basis of this particular decision is identified for the parties.

20. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows:

"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."

21. There is no definition of “child abuse” contained in the Act. The Children’s Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and 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 a child or young person being significantly harmed,

is guilty of an offence.

Maximum penalty: 200 penalty units.”

22. 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."

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

24. Pursuant to section 14 of the Act there is a requirement to conduct an assessment of the applicant. The section provides as follows:

“14 Assessment requirements

A person is subject to an

"assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.”

25. The applicant’s full criminal history is provided in Exhibit R2 at pages 479-485. Contained in that criminal history are a number of concerning assaults and driving offences. The Children’s Guardian referred to the criminal history in the risk assessment report and summarised the offences. In summary, the applicant has been convicted of stealing, interfere with comfort of passengers, resist arrest, offensive behaviour, malicious injury, failed to appear, breach of bail, assault police, resist police, resist officer in execution of duty, assault officer in execution of duty, drive with mid-range PCA, drive with high range PCA, fail/refuse to undergo breath analysis, and drive whilst disqualified from holding a licence. Some of those offences have been repeated so that there is more than one conviction for at least four of those categories. These matters will be referred to in more detail later in these reasons.

26. The matters referred to under Schedule 1 of the Act which triggered a risk assessment by the Children's Guardian are the matters referred to in clause 1(6) which reads as follows:

“...

(6) A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children.”

27. The pattern of behaviour of concern in relation to the applicant is the multiple instances of violence particularly in a domestic context.

28. The 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.

29. 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: section 36 of the Civil and Administrative Tribunal Act.

30. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal 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 Civil and Administrative Tribunal Act.

27. 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.

28. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal 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 Civil and Administrative Tribunal Act.

29. 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].

30. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant 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); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523.

31. The Tribunal is guided by the decision in the Supreme Court BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order:

“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.”

36. The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children’s Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children’s Guardian at [33].

The Issue

37. As previously referred to, the primary issue before the Tribunal in this application 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 to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

38. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

39. There is no presumption in proceedings under section 27 of the Act 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 and BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].

40. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

Considerations and the Evidence

41. 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 is section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language.

42. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections.

43. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.

44. Section 15 of the Act provides as follows:

15 Assessment of applicants and holders

(1) The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2) The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3) Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder.

(4) In making an assessment, the Children’s Guardian may consider the following:

(a) the seriousness of any matters that caused the assessment in relation to the person,

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

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

(d) the age of each victim of any relevant offence or conduct at the time it 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 matters occurred,

(i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,

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

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

(5) The Children’s Guardian may, but is not required to, notify the holder of a clearance in writing if the Children’s Guardian decides to conduct a risk assessment of the holder.

45. Section 30 of the Act provides as follows:

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.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

46. The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings reciting the required considerations under the Act.

47. Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence in relation to any offences with which the applicant was charged and has now been acquitted: section 63 of the Administrative Decisions Review Act.

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

48. The applicant is not a disqualified person. The applicant has an extensive criminal history with 37 records over a 22 year period between 1983 and 2005. The Children’s Guardian considered seven “trigger” offences which resulted in the risk assessment, constituted by five assault convictions and two convictions for assault occasioning actual bodily harm. In addition there were three assault charges and one assault occasioning actual bodily harm charge that were withdrawn. The applicant has convictions for contravening an apprehended domestic violence order, and for destroying and damaging property that occurred in circumstances of domestic violence. These are all serious offences.

49. In 1989 the applicant was waiting outside a public telephone box to use the telephone to speak with his son who was living with his mother. A 33-year-old female was using the telephone and talking to a relative. The applicant approached the victim a number of times and requested that she cease using the telephone so that he could use it. The applicant became upset with the victim and commenced to abuse her and become aggressive. The victim became fearful and hung up the telephone from the call that she was making, and then telephoned police. While she was speaking to the police the applicant entered the telephone box and began yelling at her. The applicant then pulled the victim by the hair and threw her to the ground causing her to strike her head on the concrete footpath. The applicant then was alleged to have kicked the victim in her back and rump areas. The handset was broken accidentally by the victim as she was pulled from the box by the applicant. The applicant ran off. The police then attended the applicant’s home. The applicant admitted the offence saying: “Yeah, I hit the bitch man, she was taking too long on the phone. I just wanted to ring my missus.” The police formed the opinion that the applicant was moderately affected by alcohol.

50. The applicant was convicted of this offence and fined $250: Exhibit R2 page 481.

51. In 1994 the applicant was charged with assault upon an adult female victim. The victim had been out with a friend when she returned home to find that her suitcase, clothes and other property had been thrown out onto the footpath and roadway. The victim was concerned that the applicant was upset and was afraid to enter the premises. The friend entered the premises instead and spoke with the applicant. The friend then called the victim into the premises. Once inside the victim went to the bedroom, pulled out the applicant’s suitcase and some clothes and asked him to leave. The applicant then went to the bedroom, gathered some of the victim’s clothes and went to go out to the balcony. The victim begged the applicant to stop when he suddenly hit her in the mouth with his hand causing her to bleed. The victim ran from the flat, went to a nearby public phone booth and called the police. While she was waiting for the police the applicant approached her and an argument began. The police arrived and took both the victim and the applicant to the police station where the applicant was charged.

52. The applicant was given a recognizance in the sum of $500 (self) and entered a good behaviour bond for 18 months: Exhibit R2 page 481.

53. In 1996 the applicant was charged with common assault. The applicant was at home with his adult female de facto partner, who was the victim. At 12:40 am an argument developed between the applicant and his partner over financial issues. The applicant allegedly struck the victim several times to her head and body with his closed fists. The victim ran from the premises to escape the applicant, but was chased by the applicant. The victim was chased into the street where the applicant grabbed her by the hair and dragged her back onto the premises. The victim managed to escape the applicant and ran to the rear of the block of units but could not escape further due to the area being enclosed. The applicant allegedly assaulted the victim in the driveway striking her numerous times to the head, face and body with his closed fists. It was also alleged that he kneed the victim with his right knee once to her chest. The victim managed to escape and ran to a public telephone where she dialled the emergency number. The police arrived at 1:30 am arrested and took the applicant to the police station to be cautioned and interviewed.

54. The applicant was placed on a recognisance for two years: Exhibit R2 page 482.

55. The applicant was charged with common assault on an adult male in 2001. The applicant attended with the victim at the police station. It was ascertained that the applicant was the driver of a motor vehicle which collided with the rear of the victim’s stationary car. After the collision the applicant became hostile towards the victim and pushed him causing him to stumble backwards. While at the police station the applicant was uncooperative and the police could smell alcohol on him. The applicant yelled at police and pushed a police officer with an open hand. Police told the applicant to cooperate. A constable attempted to subject the applicant to a breathalyser which the applicant refused. The applicant pushed the constable causing him to sway backwards. The applicant became aggressive and attempted to punch a Senior Constable. The applicant grabbed the Senior Constable by his shirt causing two buttons to be ripped off. The police attempted to restrain the applicant but could not do so because he was swinging his hands attempting to punch the police. After a struggle the applicant was overpowered. In addition to the common assault the applicant was charged with assaulting police and resist police, as well as mid-range PCA.

56. The applicant received $100 fine for the common assault: Exhibit R2 page 482.

57. The applicant was charged with assault occasioning actual bodily harm in 2001. The applicant’s de facto partner returned home at 11 pm after attending work. The victim observed the applicant drinking cans of beer while the children were present. The victim had dinner and went to bed with her children. The applicant entered the bedroom and accused the victim of hiding some of his beer. The applicant left the room and returned with one of the dining room chairs which he carried and walked to the bed and then smashed the chair down on the bed. The children were in the bed. The victim got out of bed and ran to the lounge room. The applicant followed her, grabbed her hair with his left hand and pulled her down to hit her in the face with his right hand. The applicant hit the victim several times. The victim hit the applicant in his testicles and managed to escape out the front door. The victim knocked on the neighbour’s door but no one answered. The victim then went to the public phone and called the police. The police arrived and arrested the applicant. The police observed that the victim had swelling to the left eye, redness to both eyes, hair missing and a lump to the left forearm.

58. The applicant was sentenced to periodic detention for a period of 8 months with a non-parole period of six months. This was successfully appealed and reduced to a non-parole period of three months: Exhibit R2 page 483.

59. The applicant was charged with common assault in September 2005. The victim had been in relationship with the applicant for approximately two years. The applicant had been drinking alcohol with his work colleagues in the afternoon. At approximately 6:20 pm the applicant returned home carrying beer. The applicant was in good spirits, laughing and apologising for being intoxicated. The applicant continued to drink alcohol and then verbally abused the victim. The applicant argued with the victim. The victim went to bed. The applicant came into the bedroom, swore at the victim, then spat at the victim under her left eye. The applicant then slapped the victim once with an open hand to the left side of her face connecting with her jawline, and once to the victim’s leg. The victim telephoned police who then attended. The victim was concerned for her safety and the police formed the view that the applicant was well affected by alcohol. The applicant did not listen to the police and was very argumentative.

60. The applicant was sentenced to 12 months imprisonment for this offence. The sentence was suspended on entering a bond pursuant to section 12 to accept supervision of the Probation and Parole service for as long as is necessary together with counselling for drug and alcohol rehabilitation and relapse prevention, as well as a domestic violence program: Exhibit R2 page 485. The applicant told Community Offender Services Court Duty Officer that he could not recall the offence because he suffered a blackout due to his heavy alcohol consumption.

48. The applicant has stated that he could not remember any of the offences due to his alcohol consumption at the time of the offences.

49. These offences are considered serious. It is of significance that most of these offences relate to times when the applicant was under the influence of alcohol. Following this last incident the applicant attended Alcoholics Anonymous in an attempt to address his alcohol consumption.

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

63. The time which has elapsed since the most recent of the matters which triggered the risk assessment is approximately 10 years.

64. Since this time the applicant has had no further criminal charges and has engaged in prosocial activities.

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

65. The applicant was aged 48 years old at the time of the most recent incident.

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

66. The applicant’s children were present during the offence in 2001.

67. The family violence between the applicant and his former partner has a cumulative effect upon children exposed to that family violence. It is generally accepted that children between approximately two and four years of age are particularly vulnerable to psychological and neurological impacts as a result of exposure to domestic violence. The children were also placed in extreme physical danger by the actions of the applicant.

68. The victims of the applicant’s violence were less physically robust than the applicant, and in relation to the applicant’s domestic partners they were in a position of dependence and intimacy. This rendered the domestic partners more vulnerable than the strangers whom the applicant had previously assaulted.

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

69. The difference in age between the applicant and all his victims is not indicated in the material provided to the Tribunal. However, each of the trigger offences were committed against adult victims when the applicant was also an adult. Children have been secondary victims during some of the incidents.

70. The applicant has directed his violence towards strangers, both male and female.

71. The applicant has been violent towards his intimate female partners.

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

72. The victims of the offences were adults. However, it is noted that the applicant’s children were present in relation to one of the offences.

The person’s present age

73. The applicant is currently 58 years old.

74. The applicant’s greater maturity may mean that he is not as prone to violence as he was in his younger years.

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

75. The applicant has a history of violence involving close family members including violent anger directed to, or in the presence of, his children. The presence of his children did not moderate the applicant’s behaviour. The total criminal history of the applicant is serious.

76. The applicant has stated that he suffered from blackouts due to his binge alcohol consumption and does not recall the offences which he committed in any detail.

77. The applicant’s criminal history is serious and set out in full in the material supplied to the Tribunal, and to which the Tribunal has had regard: Exhibit R2 pages 479-485.

78. There has been no report of domestic violence, or any other violence since 2005, and after he assumed full-time care of his children in 2006.

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

79. The applicant relies upon the evidence of himself, and the psychologist to support the contention that he is unlikely to repeat his inebriated, angry and violent conduct.

80. The applicant consulted a psychologist on 8 October 2002 prior to pleading guilty to charges of driving with a high range PCA, assault police and resist police. It was recommended in the psychological report that in order to address the applicant’s binge alcohol behaviour, the applicant receive specific counselling regarding relapse triggers, stress and anger management and grief counselling regarding the death of his oldest son: Exhibit R1 page 79. It was also recommended that the applicant continue with the domestic violence program which he had commenced. The applicant stated to the psychologist that he was aware that a build-up of frustration, sadness or depression contribute to his relapse into alcohol abuse. The applicant had not received any rehabilitation for his alcoholism. The applicant acknowledged that he is an alcoholic. The psychologist formulated the following explanation, Exhibit R1 page 85:

“[The applicant’s] relationship with [the mother of his children] had been a turbulent one, marked by arguments, separations and reconciliations. He has tended to blame her for his misfortunes, denying his own contribution to his difficulties. His problems are self-fulfilling and self-maintaining and appear to be part of a vicious cycle; frustration and resentment grow to the point where he is under such stress that he drinks heavily and while under the influence of alcohol engages in actions which cause him problems with the law.

Underlying these drinking binges appear to be unresolved grief concerning his son’s death, and other complex feelings surrounding his close relationships. Despite his lapses into alcoholic binges, he has shown strong motivation to educating himself and being in a position where he can improve the welfare of others. His progress in obtaining his PhD was marred by his son’s death in 1993 which still continues to haunt him. His problems may have been further amplified by the rather destructive relationship with his de facto… since 1994. The conflicts appear to have destabilised him and led to bouts of serious drinking.”

81. In support of this review application in the Tribunal the applicant provided a report from the psychologist Kathryn Wakely: Exhibit A3. The psychologist had access to the previous assessment as well as the material upon which the Children’s Guardian relies. The report and the oral evidence given by the psychologist were not undermined by cross-examination. In the report Ms Wakely records:

“[33] In 2006 and just prior to the return of his children [the applicant] had started attending AA meetings. His children were returned to him a short time later. [The applicant] believes this was simply ‘the right time’ in his life for him to address his difficulties and effect change. He stated that at this time he ‘just woke up to myself.’ He continued to attend AA meetings weekly of an evening for approximately six months.

[34] The client has not consumed alcohol consistently or in large amounts in the last 10 years. He said there have been times of stress when he was tempted to drink though he has been able to abstain from this and utilise breathing and distraction for these purposes. [The applicant] said he will ‘never again’ engage in the behaviours he would have in the past. He explained he has consumed alcohol on a special occasion, for example Christmas lunch, though not to excess and gave the example of having 2 to 3 drinks.”

…

[60] Since 2005 [the applicant] has successfully addressed his alcohol use, maintained stable full-time employment and housing, maintained the full-time care of his children and his mental health has stabilised. Emotionally he has matured and appears to have dealt with underlying issues of grief and loss and developed more appropriate skills to manage stressors in the absence of alcohol abuse. Importantly he has not been charged with any offences.

[61] Overall the client reports becoming calmer with age and denied ongoing difficulties with anger. This is consistent with research that indicates a decline in offending behaviour and general risk over time and as a person ages.

[62] The client attended an alcohol-related service (Alcoholics Anonymous for six months following his last conviction) for assistance with the management of his alcohol abuse. This was an extremely positive step for him to take and one that, when combined with his readiness to accept his difficulties and alter his lifestyle choices, appears to have been successful.

[63] The reported changes are supported by the client’s stability over the last 10 years and psychometric assessments administered at the time of the current interview; changes across the two personality profiles were significant and consistent with his presentation and life circumstances at each point in time (2002 at 2015). There were no indicators of ongoing alcohol misuse across the substance abuse measure.

[64] With respect to formal risk assessment the client’s score placed him within the lower limits of the low-moderate range for general recidivism. As stated, much of the client’s score was made up of items relating to past offending and some prior alcohol abuse. These static factors are unable to be altered. The profile did not indicate any treatment needs. This is consistent with the client’s presentation and information listed throughout the report.

[65] When taking all the above into consideration, [the applicant] has enjoyed overall stability for an extended period of time, that being 10 years now. Should he continued (sic) to maintain his present lifestyle he will have positive future prospects. In the absence of alcohol this man is able to control his emotions and behaviour and has not experienced any prior difficulties. Should he continue to adhere to the changes he has made with regard to his past alcohol misuse, the chances of him being a risk to others in the workplace and particularly children, is low. The fact that this client has adhered to these changes for 10 years and has no prior work place complaints suggest he is capable of moderating and controlling his behaviour.”

82. In essence, what expert psychologists have stated is that prediction of a relatively uncommon behaviour such as serious violence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and “gut feeling” play a determinative role in making a judgment.

83. In 2006 the applicant completed a domestic violence program through the Liverpool District Office of Probation and Parole. It was reported that the applicant was attending regularly and that his comments in the group were “reflective and pertinent”: Exhibit R2 page 376, 387.

84. The assessment of the psychologist is that there has been lasting and effective change in the behaviour of the applicant. Provided that change remains in place the applicant is likely to continue upon the same trajectory.

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

85. The applicant has provided information including additional psychological assessment.

86. The Children’s Guardian has not submitted that the applicant has failed to provide relevant information.

Any other matters that the Children’s Guardian considers necessary

87. The Children’s Guardian made submissions addressing those matters which the Children’s Guardian considers necessary.

88. The assessment of the Children’s Guardian is that there has been no adequate mitigation of the risks associated with the history of violence perpetrated by the applicant in the past. Significantly, the applicant was unable to provide to the Children’s Guardian sufficient evidence that he has addressed his alcohol misuse, measures to guard against relapse and subsequent reoffending. The report by Ms Wakely, however, was not available to the Children’s Guardian at the time of the risk assessment undertaken.

89. The Children’s Guardian submits that the applicant should not be granted a working with children check clearance.

90. The respondent submits that a real and appreciable risk to the safety of children is present.

Consideration

91. The behaviour and conduct which triggered this assessment are serious matters. The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms as is reflected in domestic violence legislation, and in the provisions which proscribe the type of antisocial behaviour engaged in by the applicant in the past.

92. The behaviour, if repeated, would do significant harm to the victims. The consequences are likely to be serious. Any children who witnessed these events are likely to be adversely impacted. The paramount principle under the Act includes protection of children from abuse and 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.

93. The applicant has matured with age and is committed to his family comprising his children now aged 18 and 16 years, one of whom still attends high school, with whom he lives, which are factors in his favour. The applicant has effected substantial change and for the last 10 years has engaged in prosocial behaviour.

94. The applicant has acknowledged and shown insight into the effect his anger and violence has had on his children and the effect it may have on other young people who are victims of, or witnesses to that anger and violence. The applicant showed remorse. Remorse on its own, however, is insufficient to ameliorate risk.

95. The learning experiences and qualifications gained by the applicant, which appear to have been effective for the last ten years, clearly are necessary to mitigate the risk that the applicant poses to the safety of children and the harm which would be caused to them by experiencing or witnessing family violence, or violence in any context.

96. The Tribunal has regard to the significant lapse of time since the last offences committed by the applicant. The evidence of the applicant is that he engages in social events with relatives on approximately two or three special occasions every year in which he drinks approximately two beers and restricts his intake of alcohol. The applicant has not come to the attention of the authorities nor has he been subject of any workplace investigation or complaint related to violence or to alcohol consumption.

97. 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. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

Conclusion

98. There is no presumption in proceedings under section 27 of the Act 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.

99. 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: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

100. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.

101. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes on the balance of probabilities that there is no real and appreciable risk of harm to children posed by the applicant.

102. The evidence received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does not pose a risk to children. 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.

103. If the Tribunal is in error in concluding that there is no real and appreciable risk of harm to children, it is concluded on the balance of probabilities that the circumstances surrounding the more recent conduct of the applicant means that there is no longer a risk to a child or, more correctly, that the existence of a risk has not been proven.

104. 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 does not pose a risk to the safety of children and should therefore receive a Working with Children check clearance.

Orders

105. The orders of the Tribunal are that:

1. The application for review of the decision of the Children's Guardian filed 11 September 2015 is granted.

2. The decision of the Children’s Guardian dated 18 August 2015 to refuse to grant the applicant a Working with Children Check clearance is set aside.

3. The Children’s Guardian shall within 7 days issue to the applicant a Working with Children Check clearance.

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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 January 2016