CHN v Children's Guardian

[2016] NSWCATAD 294

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CHN v Children's Guardian [2016] NSWCATAD 294
Hearing dates:	11 November 2016
Date of orders:	15 December 2016
Decision date:	15 December 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	E Connor, Senior Member P Foreman, General Member
Decision:	(1) The decision of the Children’s Guardian dated 6 November 2015 to refuse to grant the applicant a Working with Children Check clearance is set aside. (2) In substitution of that decision the respondent is to grant the applicant a Working with Children Check clearance.
Catchwords:	ADMINISTRATIVE LAW-refusal of working with children check clearance-acts of indecency as child-anti-social behaviour as adult-assessment of risk
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) 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) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Commission for Children and Young People v FZ [2011] NSWCA 111 Gaskell v Denkas Building Services Pty Limited [2008] NSWCA 35 Jones v Dunkel [1959] 101 CLR 298 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) [1981] 3 ALD 88 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CHN (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Higgins (Applicant) P Singleton (Respondent)   Solicitors: M Fraser (Applicant) Crown Solicitor (Respondent)
File Number(s):	1510761
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and 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.

REASONS FOR DECISION

Introduction

1. On 7 December 2015 the applicant, known as ‘CHN’ in these proceedings, filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 (“the Act”) of the decision of the Children’s Guardian, made on 6 November 2015, to refuse a Working with Children Check clearance. The respondent was satisfied, following a risk assessment, that the applicant poses a risk to children. That decision is the subject of this review.

2. On 24 April 2014 the applicant applied for a Working with Children Check clearance from the respondent, the Children’s Guardian.

3. A risk assessment was undertaken pursuant to section 15(1) of the Act on the basis that CHN was subject to an assessment requirement referred to in section 14 triggered by clause 1 1 (a) of Schedule 1 of the Act.

4. On 6 November 2015 a notification letter was sent to CHN by the Children’s Guardian informing him that his application for a Working with Children Check clearance was refused and attaching Reasons for Decision.

5. The matters which triggered the risk assessment are a number of offences involving acts of indecency committed by CHN in 1982 when he was 15 years of age.

6. On 20 October 1982 CHN walked up behind a 23 year old woman and ‘grabbed her on the crotch of her slacks’.

7. On 10 November 1982 CHN indecently assaulted a 29 year old woman by walking up behind her and grabbing one of her breasts and her crotch (over her clothing). He also spoke to her lewdly, obstructed her attempt to leave him and exposed his penis to her.

8. On 17 November 1982 CHN indecently assaulted a 20 year old woman by pulling up her t-shirt and squeezing her left breast. He spoke to her lewdly and invited her to perform fellatio.

9. On 17 November 1982 CHN approached a 15 year old girl, asked her what size bra she wore, referred to girls at her school as ‘sluts’ and invited her to see and sit upon his penis. She sought unsuccessfully to evade him and eventually approached the police who then arrested and charged CHN with offences relating to the incidents on both 10 November 1982 and 17 November 1982.

10. On 24 November 1982 CHN assaulted a female by grabbing her on the arm and asking her to kiss him, which she refused. He then attempted to embrace her without her consent and entered her car without permission. He ignored her demands to exit the car and grabbed her breast, pushing her bikini top off as he did so.

11. On 13 April 1983 the Children’s Court imposed a good behaviour bond on CHN.

12. As an adult from 1988 to 2011 CHN repeatedly came to the attention of the criminal justice system and was convicted of various offences of a non-sexual nature. He was involved in a number of conflicts with various adults, including numerous domestic disputes and incidents that did not lead to convictions. The applicant has numerous apprehended violence orders recorded against him; convictions in 1988 and 2000 for drink driving; a vandalism conviction in 2001; and two convictions for the possession of drugs in 2003 and 2004. In 2011 CHN was fined for assault in a domestic setting. Details of the offences committed by CHN as an adult are included below in paragraphs 37 to 69.

13. The applicant is applying for a Working with Children Check clearance because he wishes to be able to establish and operate childcare centres without being dependent on his long term employees to be directors of the trustee companies which operate the child care centres.

14. The applicant is currently without a Working with Children Check clearance which prevents him from working in “child-related work”: section 6 and section 8 of the Act; clause 7 of the Child Protection (Working with Children) Regulation 2013.

15. The role of the Tribunal in these proceedings is to decide 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]: 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]. In undertaking that role the primary issue for us to decide is whether, as at the date of hearing, the applicant “poses a real and appreciable risk” to children.

Do the 2015 amendments to the Act apply?

16. The Act came into force on 15 June 2013 and was amended by the NSW Parliament on 28 September 2015. The amendments commenced on 2 November 2015. The amendments inserted s 15 (4A) and s 30 (1A) into the Act. If these amendments were to apply to these proceedings, the Applicant would be required to meet an additional test that did not apply at the time of making his application to the Respondent. The additional test that is provided by s 30 (1A) is:

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

1. A reasonable person would allow his or her child to have direct contact with the affected person that was not supervised by another person while the affected person was engaged in any child-related work, and

2. It is in the public interest to make the order.

17. The transitional provisions contained at Schedule 3 of the Act have the effect that the amendments do not apply to an application made before the amendments came into effect. The Applicant lodged his application for a Working with Children Check clearance on 24 April 2014 before the amendments commenced operation and as a result the amendments do not apply to these proceedings.

The evidence relied upon in the hearing

18. The applicant relied upon the following documentary material:

1. Documents filed on 7 December 2015 including Application; Notice of Final Decision of Respondent; and Reasons for Decision of Respondent to refuse a Working with Children Check clearance – Exhibit A1; and

2. Bundle of Documents filed 22 August 2016 including Statement of CHN dated 21 August 2016; Statement of employee of CHN dated 14 August 2016; ASIC Extracts; Discretionary Trust Deed; Business Sale Agreement; and NSW Government Education & Communities Service Approval – Exhibit A2.

19. The respondent relied upon the following documentary material:

1. Respondent’s Tender Bundle filed by the respondent on 16 August 2016 and updated and supplemented on 8 November 2016 – Exhibit R1; and

2. Further documents filed by the respondent on 11 October 2016 comprising a letter of instructions to Dr Stephen Allnutt, Forensic Psychiatrist from the Crown Solicitor’s Office dated 31 August 2016 and a report from Dr Allnutt dated 10 October 2016 – Exhibit R2.

20. The applicant filed written submissions on 10 November 2016. He gave oral evidence and was cross-examined on 11 November 2016 by Mr Singleton, counsel for the respondent. The applicant also answered questions put to him under re-examination by his counsel, Mr Higgins. The respondent relied upon updated submissions filed on 8 November 2016.

Legislative Provisions relevant to the decision

21. 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.

22. 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.

23. 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.

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

25. 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.

26. The applicant was the subject of a risk assessment triggered by clause 1.1 (a) of Schedule 1 to the Act because of offences for which he was found guilty as a child.

27. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act.

28. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The object of the Act is not to impose additional punishment on an applicant but to minimise possible risks to the safety of children.

29. In this administrative review, neither party bears the onus of proof. There is no presumption that the applicant poses a risk to children as would be the case pursuant to section 28(7) of the Act if he were a disqualified person.

30. As previously stated, the primary issue for us to decide is whether, as at the date of hearing, the applicant “poses a real and appreciable risk” to children.

31. 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.

32. 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.

The evidence to be considered

33. 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. These are similar to those taken into account by the Children's Guardian under section 15 (4) of the Act for the purposes of carrying out their risk assessment.

34. 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.

35. The evidence is considered below under subheadings which refer to the considerations under section 30(1) of the Act.

The seriousness of the offences that caused a refusal of a clearance

36. In the Reasons for Decision and in the Updated Submissions of the Respondent the respondent asserts that CHN’s criminal records are serious. As outlined above, in 1982 when aged 15, he was found guilty of a number of sexual assaults and causing serious alarm. The offences were committed against four victims including a 15 year old girl and a female who was 18 years of age. The respondent notes that if the offences had been committed when CHN was an adult he would have been a disqualified person. Mr Singleton states in his written submission that subsequent offending by CHN has been of varying seriousness, but that some, ‘perhaps most notably the assaults that injured (his partner in 2008) – are very serious’.

37. The incidents of concern that have occurred since CHN became an adult are set out below.

38. In 1988 CHN was convicted, fined and disqualified from driving for three months following being intercepted on 26 March 1988 driving in an erratic manner contrary to several road rules with a mid-range concentration of alcohol in his blood.

39. On 2 March 1992 police received a complaint that CHN had visited a woman’s home at her invitation but then entered her bedroom where she was lying on the bed; pulled the bedclothes down; pulled down the top of her nightdress and after a struggle grabbed her breast. On 4 March 1992 CHN was interviewed by police and denied the offence.

40. On 3 February 1993 CHN was charged with using offensive language. He was convicted and fined.

41. On 6 August 1995 CHN, while driving, had an encounter with another driver in which CHN inflicted injuries on the other driver after dragging him from his vehicle, punching and kicking him. CHN claimed he was acting in self-defence. Police record the allegations against CHN as ‘Verified’. CHN was charged by summons but the result of the charge is undisclosed.

42. On 14 February 1997 the police were called to a domestic dispute involving CHN and his then girlfriend who later contacted the police by telephone and reported that CHN had made threats to her. The woman later asked the police to take no further action.

43. In June 1997 CHN and his girlfriend separated. In July 1997 they resumed a relationship. In late July 1997 there was another domestic dispute and on 17 August 1997 an apprehended violence order was made against CHN to protect the woman.

44. On 4 November 1999 CHN was apprehended by police for driving at excessive speed with a mid-range concentration of alcohol in his blood. He was convicted, fined and disqualified from driving for six months.

45. On 15 October 2001 CHN used a road barrier to smash the windows of a vehicle owned by a woman who had placed stickers on his vehicle in relation to parking complaints. CHN was convicted of malicious damage to property and released on a good behaviour bond.

46. On 17 February 2002 CHN was involved in an incident at a hotel restaurant where he became abusive, refused to leave and was racially abusive to a number of patrons before being restrained by security. The police attended and while being transported by them he ‘groped’ two female police officers. After getting out of the police car he grabbed an elderly woman on the bottom and made sexually lewd remarks. She complained to the police but asked for no action to be taken against CHN.

47. By 2002 CHN had been married for two years and had a son of 17 months. His wife was pregnant with a second child. The relationship had deteriorated and on 1 April 2002 CHN told his wife to leave the family home. She did so, taking the child with her. CHN received advice from a magistrate that she could not prevent CHN taking their son and relinquished the child to him. She was later concerned about the child’s welfare and contacted police. She decided, however, to arrange for family intervention rather than pursuing further police involvement, which she considered may make the situation worse.

48. On 13 September 2003 CHN was convicted of possessing a prohibited drug (cocaine) and placed on a good behaviour bond following approaching two female patrons at a hotel and offering them ‘a line of coke’. CHN was found to be in possession of cocaine that he said at the time was for his personal use but later suggested had been planted on him. CHN’s appeal to the District Court against the severity of his sentence was dismissed.

49. On 23 December 2003, in an intoxicated state, CHN caused damage at a hotel and urinated on the floor. He agreed to pay for the damages.

50. On 3 January 2004 CHN was involved in an alleged altercation on a golf course which resulted in charges being laid against him. These charges were later withdrawn and dismissed.

51. On 16 February 2004 CHN opened a childcare centre without a licence. He was convicted and fined for the offence and comments were made by the magistrate about CHN’s ‘obnoxious and bullish’ attitude, notwithstanding that the magistrate did not hold the offence to be ‘serious or a flagrant breach’.

52. On 17 February 2004 there was another domestic incident at home in the presence of CHN’s sister-in-law. The police were called and sought an apprehended violence order that was granted on 18 February 2004. They charged CHN with assault and reported the matter to the Department of Community Services.

36. Notes from the Department of Corrective Services in 2004 relating to his bond in respect of the cocaine-related charge in 2003 record that CHN was rude and aggressive and demonstrated little insight into how his actions impacted on his life. It is noted that he blamed others for his marital breakdown and was annoyed at reporting to Corrective Services.

37. On 8 June 2005 CHN was refused entry to a club as a result of his intoxication and after attempting to re-enter the premises later he got into a physical struggle with a security guard. Police arrested and charged CHN.

38. On 23 January 2006 CHN is reported to have urinated in front of the police in a public place and was charged with public nuisance.

39. On 8 June 2008 there was a domestic dispute between CHN and a new partner (‘the first defacto’) that resulted in charges being laid but later dismissed. An interim apprehended violence order was made and a final 12 month order was made on 4 November 2008. Police noted extensive bruising on the first defacto’s body and neck and CHN’s partner reported an earlier incident of violence inflicted on her by CHN on 3 June 2008.

40. In October 2008 CHN and his first defacto resumed cohabiting and on 17 October 2008 there was a further incident which resulted in the police being called by the partner who noted that, in addition to her injuries, her phone and $1200 was missing from her purse. CHN was charged with assault occasioning actual bodily harm, stealing money and a telephone, and breaching an apprehended violence order. The charges were dismissed because no evidence was offered.

41. On 9 December 2008 there was an altercation between CHN and a woman (possibly the first defacto) at an airport and security guards intervened. CHN left the scene in his car but was intercepted by police. The woman declined to assist police who took no further action.

42. On 3 August 2009 the Department of Community Services received a report that CHN’s two children, aged 9 and 6 years at the time, had been left alone by CHN in an apartment at a golf resort and that they had let people into the apartment without enquiring about their identity. It was also reported that lighters and alcohol were lying around in the apartment.

43. On 9 January 2010 police were called as a result of an argument between CHN and his first defacto but no action was taken.

44. On 13 May 2010 the police were called by ambulance officers who were attending to the first defacto who was intoxicated and had a deep laceration to her forehead and blood on her clothing. She declined to make a complaint but attributed her injuries to CHN.

45. On 12 July 2010 a Protection Order was made by a Queensland Magistrate’s Court against CHN for the benefit of his first defacto.

46. On 10 February 2011 CHN contravened the 12 July 2011 Protection Order. There was apparently an argument that, according to CHN’s first defacto, led to CHN forcing her head into a marble wall. Police became involved when CHN was driving with her in the car and pulled over suddenly. CHN denied assaulting his first defacto. CHN’s partner also reported to police an incident on 9 February 2011 when CHN had caused her injuries. On 3 September 2011 the Court dealt with charges of Breach of Order and Assaults Occasioning Actual Bodily Harm. No convictions were recorded but CHN was fined $600.

47. On 24 February 2011 the Protection Order made in Queensland was registered in New South Wales. In March 2011, after receiving information about a large volume of email and SMS contact between CHN and his first defacto, police applied for an extension of the order with further restrictions.

48. From 2012 until approximately December 2015 CHN was involved in a relationship with a further partner (the ‘second defacto’).

49. On 8 November 2013 police responded to a call from CHN’s second defacto who claimed she had been chased outside and threatened by CHN. CHN alleged that the woman has mental health issues. The police took no further action.

50. On 30 July 2014 the police attended the residence of CHN and the second defacto following a complaint from his second defacto about domestic violence. Police observed cannabis and related equipment.

51. On 20 November 2014 police responded to an allegation that CHN had slapped the face of a woman (apparently the second defacto). They saw nothing confirmatory and recorded that the woman has a history of mental illness and appeared erratic and indecisive. They concluded that it was unlikely that an incident had occurred.

52. On 25 April 2015 police responded to a call alleging a disturbance between CHN and his second defacto.

53. On 5 June 2015 the Department of Community Services received a further report about CHN’s sons, then aged 15 and 13 years. It is reported that on 3 June 2015 the older boy had written a story stating that ‘he is not doing well at his father’s as he swears at them and hits them’. The boy stated that he did not want to go to his father’s at Christmas. The boy’s mother was informed and the Department’s record states that the ‘mother is protective’ and that there are ‘no capacity concerns about her parenting’.

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

71. Thirty-four years have elapsed since the 1982 offences took place. The written submissions of the respondent note that while on the one hand it is a long time since those offences occurred, there is evidence that CHN has reoffended in a similar way by groping the police officers on 17 February 2002 and has continued to offend in ‘other relevant ways’ such that ‘it is open to conclude that CHN’s prospects of altering his manner of conducting himself is (sic) unlikely to change and his capacity to control his outbursts is unlikely to improve’.

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

72. The applicant was 15 years old at the time he committed the trigger offences. He has committed a number of offences since that time.

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

73. The ages of the victims relating to the charges against CHN in 1982 were 18, 23, 20, 29 and 15 years.

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

74. CHN was younger than the victims named in the 1982 charges other than the 15 year old, who was approximately the same age as him.

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

75. CHN was aware that one of the 1982 victims was attending school. It is not known whether he knew her age.

The person’s present age

76. The applicant is now 49 years of age.

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

77. The applicant has a record of repeated offending, frequently related to alcohol and domestic violence, over a very long period of time. Some of these incidents have been serious.

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

78. The applicant relies upon the evidence of himself and the written statement dated 14 August 2016 of a longstanding employee of his childcare centres to establish that he is not a risk to children.

79. The respondent contends that CHN has anger management issues and alcohol and behavioural issues that are risk factors which need to be addressed and managed to prevent the risk of future offending. Such behaviours, if repeated in the presence of children, would present a risk to their safety. The respondent asserts that the applicant has not provided any information to demonstrate that he is not a risk to children and that his many years of repeated offending support a conclusion that offending is likely in the future. The respondent acknowledges that the impact on children will be dependent on whether or not they witness any incidents of violence.

80. The respondent postulates that compared to any typical member of the community, CHN poses a significantly greater risk that he will engage in misconduct in the future, and that ‘this entails a sufficiently high risk of at least a consequential impact on children to warrant refusing a clearance’. The respondent further asserts that CHN has an underlying personality problem which, although it is not known what the problem is, poses a higher than typical risk to children.

81. During the hearing the applicant was cross-examined by Mr Singleton. In response to questions about the psychological therapy he received following the 1982 offences, CHN told the Tribunal that he was unable to recall the content of the report referred to in paragraph 49 of his written statement (Exhibit A2) but that he believes that it stated that he was not considered to be ‘a threat’ and that the report was ‘positive’. He stated that he was administered aversive electric shock treatment.

82. Mr Singleton asked CHN about a number of the incidents that have taken place since the 1982 offences. In relation to the 23 January 2006 incident when he was charged with public nuisance for urinating in public, CHN asserted that he had gone to the rear of a building to urinate and that a police officer had followed him. CHN stated that he does not believe that it constituted ‘urinating in public’.

83. CHN denied any criminal offence in relation to the 1992 incident when his girlfriend’s flatmate made allegations about sexual assault. He stated that he was later informed that the flatmate had made similar allegations against approximately 15 other men as a result of which the charges were dropped. CHN denied having consumed alcohol at the time the incident took place.

84. In relation to the offensive language offence in 1993, CHN stated that he had sworn at police following their attendance at a minor car accident. He again asserted that he had not consumed alcohol at the time.

85. Mr Singleton noted that the applicant has denied only some of the reported incidents in his statement and suggested that this implies that he does not deny the other allegations against him. CHN stated that he was advised by his lawyer that there ‘was no point’ in denying each and every incident. He refuted the suggestion that this means he concedes that he was liable in relation to those incidents not denied in his statement.

86. CHN stated that he does not believe that he has a problem with alcohol and said that he ‘might have been drunk twice’ in his life. However at a later point in the hearing he said that he engaged in ‘binge drinking’ when he was younger, particularly following his sporting activities. He acknowledged that he has imposed certain rules upon himself with respect to his consumption of alcohol, including not drinking at lunchtime and drinking shandies rather than full strength beer. He asserted that he does not consume alcohol at home unless they are having a party. CHN said that he has for many years drunk shandy (beer mixed with lemonade) rather than full strength beer.

87. CHN was asked by Mr Singleton about a number of the domestic violence allegations made against him in relation to his first defacto. He told the Tribunal that his first defacto had a problem with alcohol and that he has seen her sleepwalk and fall over and injure herself, following which she would make accusations that he had caused her injuries. He stated that he ‘lived in hope that her promises to reform would happen’, but she continued to consume excessive amounts of alcohol and was ‘drunk every day of her life’.

88. CHN denied having any heated arguments with his wife, whom he stated was ‘the silent type’ and who did not drink because if she did so she ‘would pass out’. He denied being violent with his domestic partners or other members of the community and denied groping women when intoxicated. He dismissed the incidents which took place on 17 February 2002 involving the groping of two female police officers and an elderly woman as ‘messing around’. He asserted that if the police had been seriously concerned, charges would have been laid.

89. Under re-examination by Mr Higgins, CHN stated that his second defacto had a history of mental illness and that he ‘thought she had told him that she had a bipolar disorder and schizophrenia’. He asserted that her consumption of alcohol while taking medication for her mental illness had a huge impact on her behaviour. He does not believe that his drinking has ever caused problems in his corporate or personal life and that ‘the problem has been his partners’ consumption of alcohol. He denied having inflicted any violence on his partners.

90. CHN stated that his first defacto also had a mental illness, however he later retracted this. Mr Singleton respectfully submitted that CHN is ‘not a good witness’ as a result of this evidence.

91. In final submissions, Mr Singleton submitted that while it is ‘theoretically possible’ that police records do not accurately relate what was seen by the police; that various partners injured themselves and then lied to the police; or that incidents such as the golfing and ‘road rage’ incidents are untrue in one way or another, the chances that all such incidents have been misreported is ‘slim’. Mr Singleton argued that each incident should not be considered individually, but assessed in the ‘full context’, and that there are a number of features of CHN’s personality that are likely to recur from time to time. These include impulsive over-reactions to annoyances in his personal and daily life. Counsel asserted that CHN has a history of consuming amounts of alcohol which lead him into difficulties with the law and that he does not recognise that he has a problem. However Mr Singleton also asserted that CHN’s behaviour cannot be explained totally by his consumption of alcohol as some of the incidents have taken place when CHN has not consumed alcohol. Mr Singleton submitted that a recurrent theme is that CHN ‘minimises his culpability and responsibility for his own actions and blames the victims’.

92. In assessing whether or not CHN poses a risk to children, Mr Singleton submitted that the Tribunal members are ‘entitled to bring their own common sense and experience of life to bear’. He stated that CHN is ‘not a typical member of the community’ and that ‘such a person is more likely than others to pose a risk to children’. Counsel noted that CHN declined to participate in a professional assessment and that the evidence ‘does not allow the Tribunal to make a finding that he has a mental illness or personality disorder’, however it is open for the Tribunal to conclude that CHN thinks that being professionally assessed would not assist his case: Jones v Dunkel [1959] 101 CLR 298. Given that CHN does not have any record of working with children, he can present no evidence to show that he has done so without incident. He noted that if CHN is granted a clearance, it is unqualified and CHN could, for example, become the coach of a girls sporting team.

93. Mr Higgins, for the applicant, submitted that the weight which the Tribunal ascribes to the facts has to be ‘calibrated within the scope of the Act’ and that the ‘prism’ through which the Tribunal views those facts must be as to whether or not he poses a risk to children. Counsel for the applicant argued that the Tribunal is not well-placed to engage in a fact-finding exercise because it does not have all the information before it and must rely on historical records and the oral evidence of the applicant to the extent that he is able to remember incidents. Accordingly, he submitted that the Tribunal must give weight to the assessments of the investigators at the time the incidents took place.

94. In relation to the 2002 groping incidents, Mr Higgins argued that if CHN’s ‘conduct had been worthy of more than verbal censure’, then he would have been charged. He submitted that CHN’s behaviour is ‘nothing more than boorish’ and that he does not pose a risk to the safety of children. He noted that the applicant was not cross-examined about his purpose in seeking the clearance and that he is a business owner who does not intend to have any direct involvement with children.

95. Mr Higgins submitted that CHN’s ‘problems’, if he has them, are not of ‘recent moment’, but are problems he has had since he was 15 years of age or earlier and which ‘have not transferred into problems with children’. There is no material before the Tribunal indicating any subsequent issues of concern relating to children.

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

96. In his written submission the applicant states that all the information given by him supports the contention that he is fully rehabilitated from his trigger offending; that he has conducted a child care business in an exemplary fashion for 23 years without any allegation or suggestion of impropriety or misconduct towards children; and that his summary offending and alleged anti-social behaviour was of such a nature, and occurred in contexts in which children could not be harmed.

97. 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

98. The Children’s Guardian did not make any additional submissions addressing those matters which the Children’s Guardian considers necessary.

Consideration

99. As previously noted, the jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment should err on the side of caution while 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.

100. The behaviour and conduct which took place in 1982 and which triggered this assessment are serious matters. However the Tribunal has regard to the lapse of time since those offences were committed by the applicant and the fact that he was only 15 years of age at the time.

101. The applicant was a somewhat unreliable witness. He changed his evidence about the mental state of his first defacto partner and his evidence about his drinking habits was inconsistent and lacked plausibility. It is not plausible that he has ‘only been drunk twice’ in his life given the evidence before the Tribunal. He appears to lack insight into his behaviour and to blame others for his difficulties. He has not sought any counselling during adulthood and there is no evidence that he has developed any risk management strategies to avoid any repetition of his offending and anti-social behaviours.

102. The Tribunal did not place any weight on the report of Dr Allnut and did not conclude that an increased risk exists as a result. Dr Allnut has not assessed the applicant in person and his report is therefore highly qualified. The Tribunal also agrees with the submission of Mr Higgins that the refusal of the applicant to participate in a psychiatric assessment by a psychiatrist chosen by the respondent is not logically probative of an increase in the risk the applicant poses. It is only logically probative of the decision of the applicant to exercise his legal right to refuse to consent to a psychiatric assessment. The rule in Jones v Dunkel [1959] 101 CLR 298, to which the respondent referred the Tribunal, relates to an unexplained failure of a party to give evidence which may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party’s case. In Gaskell v Denkas Building Services Pty Limited [2008] NSWCA 35, the NSW Court of Appeal found that the failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel [1959] 101 CLR 298. An adverse inference is drawn only if the evidence otherwise provides a basis on which that unfavourable inference can be drawn. In this matter, there is no adverse evidence of other professionals who have assessed CHN that may give rise to an adverse inference being drawn about him refusing to be assessed by Dr Allnut.

99. The Tribunal considers that although the evidence suggests that CHN may engage in further misconduct in the future, there is no evidence that his past misconduct since the 1982 events has posed any real or appreciable risk to children. Apart from the alleged groping of the police officers and the elderly woman outside the police station in on 17 February 2002, 14 years ago (in relation to which no charges were laid), there is no evidence that since 1982 CHN has committed any offences similar to those trigger offences which took place when he was only 15 years of age and for which he states he received aversion therapy.

100. The Tribunal accepts that there is no evidence that his anti-social and ‘boorish’ behaviour during his adult life has created any risk to the safety of children, and, as previously noted, it is not the role of this Tribunal to be punitive. The Tribunal accepts the submissions of Mr Higgins that none of CHN’s anti-social behaviour was directed at children and the behaviour did not take place in the presence of children.

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.

103. 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

108. The orders of the Tribunal are that:

1. The decision of the Children’s Guardian dated 6 November 2015 to refuse to grant the applicant a Working with Children Check clearance is set aside; and

2. In substitution of that decision the respondent is to grant 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: 15 December 2016