DAJ v Children's Guardian - [2017] NSWCATAD 299

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: DAJ v Children’s Guardian [2017] NSWCATAD 299
Hearing dates: 28 August 2017
Date of orders: 13 October 2017
Decision date: 13 October 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: G Mullane ADCJ, Principal Member
R Royer, General Member
Decision:
(1) The decision of the Children’s Guardian of 5 June 2014 refusing the applicant a Working With Children Check Clearance is affirmed.
(2) Publication or broadcast without the leave of the Tribunal of any name or other identifying information of the applicant, any victim, any child referred to in these reasons or any relative of the applicant referred to in these reasons is prohibited.
Catchwords: Child Protection - Working with Children Clearance-issues of mental health, alcohol abuse, abusive behaviour.
Legislation Cited: Child Protection (Working With Children) Act 2012;
Adoption Act, 2000;
Child Protection (Prohibited Employment) Act, 1998;
Administrative Decisions Review Act 1997
Cases Cited: Commission For Children and Young People -v- V [2002] NSWSC 949;
Texts Cited: Nil
Category: Principal judgment
Parties: DAJ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
A Douglas-Baker (Respondent)
DAJ (Applicant in person)
Solicitors:
NSW Crown Solicitors Office (Respondent)

File Number(s): 2017/00101008
Publication restriction: See above orders.

REASONS FOR DECISION

Introduction

On 23 June 2013 the applicant filed an application with the Office of the Children’s Guardian for a Working With Children Check Clearance under the Child Protection (Working With Children) Act 2012.
On 6 August 2013 the Office of the Children’s Guardian notified the applicant that it had identified records that triggered a requirement for a risk assessment as to whether he is a risk to the safety of children.
The matters which figured the requirement for an assessment comprised the following convictions for offences on the dates stated:

09/06/1999 Common Assault

30/06/2004 Common Assault

28/05/2008 Common Assault

05/05/2009 Common Assault

During the course of the risk assessment the Office of the Children’s Guardian provided the applicant details of his criminal history and information obtained from the New South Wales Local and District Courts. He was invited to provide further information. He did not provide any.
On 23 April 2014 the Office of the Children’s Guardian forwarded the applicant a Notice of Proposed Refusal of Application and gave him the opportunity to submit further supporting material such as courses and/or programs undertaken, counselling and/or psychologist reports, and additional references from past or present employers, to assist the risk assessment. The letter also requested that the applicant provide any references, statutory declaration or other supporting documentation and references by 21 May 2014 and provided a list of details of information he might wish to provide. He did not provide any further information.
By letter dated 5 June 2014 the Children’s Guardian advised the application had been refused because the Office of the Children’s Guardian had determined that he poses a risk to children.
The applicant’s first language is Serbian and his English is poor, particularly his reading of English. He had changed his address when the letter warning of the intention to refuse his application and the subsequent letter notifying him of the refusal were sent and there was some significant delay before he received those documents. He did not understand that there was a right of review until some time later.
He obtained an extension of time to file his application for the review and it was filed on 21 February 2017.
He has had no legal advice or representation in relation to the lodging of his original application for a clearance, his review application, the preparations for the hearing and the hearing itself. The only assistance he had at the hearing was an interpreter.
This was the hearing of the review application and this is the decision and reasons.

Relevant Law - Review

Section 4 of the Act provides:

“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.”

Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in “child-related work” for purposes of the Act.
Section 8 requires that a worker must not engage in child-related work unless the worker holds a “Working with Children Check Clearance” of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an “interim bar”.
Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.
Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work.
Section 12 of the Act provides that there are two classes of Working with Children Check Clearances which are:

a) Volunteer - authorising workers to engage in unpaid child-related work; and
b) Non-volunteer - authorising workers to engage in paid and unpaid child -related work.

Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance and requirements for the application. It provides:

13. Applications for clearances
(1) A person may apply to the Children’s Guardian for a working with children check clearance.
(2) An application must:
(a) be in the form approved by the Children’s Guardian, and
(b) be accompanied by any other information required by the Children’s Guardian, and
(c) specify the class of clearance applied for.

(3) The approved form must provide for the authorisation by the applicant of, and the consent by the applicant to, the following in connection with the application or any application under Part 4 and at any time while a clearance is in force:
(a) the conduct of a criminal record check in respect of the applicant,
(b) the disclosure of the applicant’s criminal history,
(c) other inquiries about the applicant relevant to the application or clearance,
(d) without limiting paragraphs (b) and (c), disclosure of information about the applicant relevant to whether the applicant may be subject to an assessment requirement.

(4) The regulations may:
(a) prescribe the fee payable for an application and the manner in which it is to be paid, and
(b) require proof of identity to be provided by an applicant for a clearance in the manner prescribed by the regulations or approved by the Children’s Guardian.

(5) An applicant may, at any time before the final determination of an application (including after receipt of notice of a proposed refusal), withdraw the application by notice in writing to the Children’s Guardian.

Accordingly, the Applicant on 23 June 2013 applied to the Children’s Guardian for a Clearance and the Children’s Guardian undertook an assessment and refused to give a clearance.
Under Section 16 the Children’s Guardian may request further information from an applicant for a clearance related to an offence or other matter related to the application or clearance and may terminate an application if the applicant without reasonable excuse fails to provide such further information within 6 months of the request.
On several occasions the Children’s guardian either requested the applicant to provide further information or required him to provide any further information he wanted to rely upon. It suggested to him information that he might want to rely on.
Section 18 of the Act Provides:

18. Determination of applications for clearances
(1) The Children’s Guardian must not grant a working with children check clearance to the following persons ("disqualified persons”):
(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,
(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

(2) The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.
(3) The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

The offences of which the applicant was convicted are not offences included in Schedule 2 of the Act and therefore he is not a disqualified person.
Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in schedule 1 apply to the person. Para 1(6) of the schedule appears to apply to the applicant because of his 4 convictions for common assault. It catches “a person who has been convicted of offences involving violence…….sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may it may cause a risk to the safety of children.”
Section 27 is in Part 4 of the Act and provides that a person refused a Working With Children Check Clearance by the Children’s Guardian may apply to this Tribunal for a review of the decision of the Children’s Guardian. Subsection 27(4) of the Act provides: “An applicant must fully disclose to the Tribunal any matters relevant to the application.”
Subsection 30(1) of the Act applies to reviews. It provides:

(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 Commission considers necessary.

A literal interpretation of “a risk assessment … to determine whether the applicant ….poses a risk to the safety of children”, is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children.
In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation “not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children”. He held regarding the construction of the section:

“One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence”. [At par 41] and [at par 42]
“One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the ‘risk’ with the words that follow, namely, ‘to the safety of children’”.

It is provided in subsection 30(1A) of the Act that:

The Tribunal may not make an order under this Part which has the effect of enabling the person (the “affected person”) to work with children in accordance with this Act unless the Tribunal is satisfied that:
(a) A reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and
(b) It is in the public interest to make the order.

Section 63 of the Administrative Decisions Review Act 1997 applies to the review and it provides:

63. Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Evidence

The evidence comprises the following:

Letter of 22 April 2014 from Children’s Guardian to applicant warning of proposed refusal;

Letter of 5 June 2014 from Children’s Guardian to applicant advising of decision to refuse application;

Application for Review filed 21 February 2017;

Letter from Settlement Services International (“SSI”) of 15 February 2017 filed with The Tribunal;

Letter from applicant dated 8 April 2017 and filed with the Tribunal on 22 May 2017.

Bundle of documents under Section 58 of the Administrative Decisions Review Act 1997 indexed and tabulated (510 pages) filed 9 June 2017l;

Bundle of further material filed by the respondent on 18 August 2017 numbered and tabulated and comprising 312 pages;

Further material filed by the respondent on 23 August 2017 comprising documents from Sutherland Local Court and SAI Global Corporation Search of 1/11 Leonard Avenue Pty Limited;

Exhibit “A1” – Character Reference from Angela Kurtz;

Exhibit “A2” – Character Reference from School Principal; and

Oral Evidence of the applicant on 28 August 2017.

Oral Evidence of the sister of DAJ on 28 August 2017.

Seriousness of the Offences that Caused the Refusal of a Clearance

The second of the trigger offences was a common assault on 30 June 2004 for which he was fined $1,000.00. At about 8:00 pm on 30 June 2004 he entered licensed premises in Liverpool. He sat down in an area near the door. He had been barred from attending the location several weeks earlier by a security guard (in these reasons called “CD”). CD was present in the premises when the applicant arrived on 30 June 2004. CD approached the applicant, reminded him that he was barred from the hotel and advised him to leave. The applicant refused to leave. He was highly intoxicated. CD tried to escort the applicant out the door. There was a short struggle between them and the applicant produced a 7 cm knife blade with black electrical tape around the area where the handle might have been. CD tried to wrest the knife blade from the applicant. The applicant then said to CD: “I stab you”. He did not point the knife at anyone as CD had control of the applicant’s hand. CD then grabbed the applicant’s arm and the knife blade was released and fell to the floor. The applicant then fell to the floor. The knife was retrieved by the manager of the premises and placed in his office. The applicant stayed on the floor with CD standing over him and the manager called the police.
The police arrived at about 8:25 pm and he was cautioned and arrested and conveyed to Liverpool Police Station. Police considered he was heavily intoxicated. He was swaying while standing up and his speech was slurred. His right arm appeared to be swollen and he had blood on his right hand.
In relation to the incident with the security guard and the knife, it was put to him in cross examination that he assaulted the security guard and he said: “No, he tried to evict me”.
When it was put to him that the security guard had earlier told him to leave and he had earlier banned him, the applicant replied: “He was a new security guard. It was the first time I had seen him.” He conceded that he had been there before.
It was put to him that when the security guard was taking him out of the premises, the applicant produced a knife. He answered: “The police came and searched me and let me go”. However, there was a knife that was in the possession of the manager and then the police and produced in court at the hearing.
When that was put to the applicant, he then responded: “the security guard did not produce it in court or the police”. When it was put to him he denied that he was intoxicated. It was put to him that he did not appear in the court room and he answered: “I was in the court. How can I not go to court?” But the Court records show that he did not appear at the hearing and the proceedings were dealt with ex parte.
The third trigger offence was common assault on 28 May 2008 for which he was convicted.
The police facts related that there had been a history of verbal arguments between the applicant and his niece (the daughter of a sister of the applicant in whose unit he was staying) in Sydney. In these reasons the niece is referred to as “EF”. On 28 May 2008 there was a common assault of EF by him which resulted in the Kogarah Local Court sentencing him to two hundred (200) hours of community service and ordering him to pay court costs of $73.00.
He returned to the unit on 28 May 2008 at about 5:00 pm after work. His sister was not present, but EF was present with her cousin seated in the lounge room. He told EF: “You have two minutes to get out” and then walked into his bedroom. A few minutes later he came out again in changed clothes. He walked quickly past EF and her cousin into the kitchen and then back to EF. He attempted to grab her by her shirt with his left hand but EF avoided him. EF was seated on the lounge and he walked to the front door and opened it. He then returned to EF, grabbed her by both wrists and pulled her up off the lounge. Still holding her wrists he dragged EF across the lounge room. She attempted to break free from his hold but he then placed her in a head lock. EF struggled and eventually broke free. He then pulled EF towards him and lifted his knee into her stomach causing her instant pain. EF was out of breath and when she stood up the applicant punched her in the chest. A wrestle ensued and EF was pushed onto her back onto the lounge. He placed his forearm against her throat. She struggled for breath, pushed or kicked him off and then ran from the unit. An ambulance was called, a neck brace was fitted on EF and she was transported to St George Hospital. She suffered injuries to her left forearm, left thumb, both wrists, her chest and stomach, left knee and pain to her neck.

Police attended and he was arrested and taken to St George Police Station. The applicant denied punching or kicking EF but admitted starting the entire incident, attempting to drag the victim out of the unit by pulling her arms and forcing her to the door. He told police that on entering the unit he saw the victim and her cousin were smoking cannabis and that is why he wanted them out of the unit. The applicant was charged and also a telephone interim apprehended violence order was obtained and served on him.
When in this hearing he was asked about the 2008 charge of assault on his niece who was twenty-six (26) at the time and pregnant, he said: “It arose because her son needed to be collected from pre-school. I went home to change and she was with her female cousin smoking pot. I tried to throw her out but didn’t. She did not want to. I got her by the arm and tried to take her out, but didn’t”. He denied that he kneed her in the stomach. He denied that he touched her at all, notwithstanding the evidence that he had given immediately preceding that. He denied he punched her. He denied he put his forearm against her throat.
It was put to him that she had reported injuries and he replied: “I didn’t hurt her. I only got her by the hand and she didn’t want to go”. Then he said: “She struggled and was kicking me”. Then he said he went and got changed and then the police arrived.
On 5 May 2009 the applicant committed a fourth common assault for which he was convicted, and received an eight months sentence which was suspended on the applicant entering into a good behaviour bond for 8 months.
The police statements reveal that they attended a home unit in Brighton-Le-Sands as a result of a police radio call alleging a domestic argument. When they arrived they observed that the applicant, who showed them into the unit, had a number of blood stains on his jacket and blood on his hand. His girlfriend was in the unit. She said that she had just arrived and did not know what had happened. Police observed in the kitchen of the unit where they saw the applicant that there was broken glass on a small table and blood on the telephone on that table. A clear plastic bag was hanging on the oven and contained pieces of broken glass. Police elsewhere interviewed an alleged victim at another location (in these reasons referred to as “PQ”).
Police carried out an interview of the applicant. He was told that he was being arrested for assaulting a female person. The conversation then proceeded:

Applicant:   “Who did I assault?”
Officer:      “A female that has been living here, [PQ].”
Applicant:   “I will fucking kill her.”

He was cautioned and told that the police would record whatever he wanted to say. He refused to comment. He was then conveyed to the police station. PQ attended the police station not long afterwards and gave a statement. Police considered that PQ was a person needing protection from the applicant and shortly after the apprehended violence order was obtained. Not long after, the applicant participated in an electronic recorded interview with the assistance of an interpreter. After cautions, the interview commenced and was recorded. When the applicant was asked what had happened with PQ the applicant responded:

“I will kill her. She is dead.”

He then refused to answer any further questions. There was considerable conversation where police were attempting to have him informed about making a statement and to enable him to use that information in deciding whether or not to make a statement. In the course of that, an officer informed him that an apprehended violence order was being obtained for the protection of the victim PQ and the following exchange then occurred:

Applicant:   “Who [redacted] then? She lived in my place two (2) weeks and I don’t know who is.”
Officer:      “OK. Well she has been living at your place.”
Applicant:   “And I don’t know who is.”
Officer:      “OK. You, the defendant, must not assault, molest, harass, threaten or otherwise.”
Applicant:   “I don’t want to see her any more in my house.”
Officer:      “OK. Can you let me complete serving this paperwork on you? OK. You must not threaten or otherwise interfere with the protected person or a person with whom the protected has or have a domestic relationship with.”
Applicant:   “No ….”
Officer:      “OK.”
Officer:      “OK. Just tell him he can have his say once I have served the papers. Let him know he can have his say.”
Applicant:   “No, you asked me, I ask you, OK. You gunna listen?”
Interpreter:   “Let her come into my …. If she come … street ….”
Applicant:   “If I see her …. then. I gunna smash her if she come to my street. You understand now.”
Officer:      “What did he say?”
Interpreter:   “That was English. If she comes into my street - ”
Applicant:   “You understand question?”
Officer:      “What did he say?”
Applicant:   “If I see her in my street I gunna smash her.”
Officer:      “OK.”

Later in the conversation police attempted to calm the applicant down without much success. He made statements like “I gunna smash her man”.
The police records record that the applicant and PQ had been living for 2 to 3 weeks in the applicant’s unit. PQ was sleeping on the lounge room floor. They had been in an intimate relationship for about five (5) days in March 2009. PQ told police that he returned to the unit at about 6:00 pm on Tuesday 5 May 2009. The applicant opened the door to allow her to enter the unit and went into the kitchen to make a phone call. She sat in the lounge room on a mattress on the floor. The applicant returned to the lounge room and said to her: “Have you got a boyfriend now?”
She told him that it was: “Nothing to do with him.”
He said: “From now on you can no longer stay here, get out.”
PQ remained on the mattress on the lounge room floor. PQ alleges the applicant then grabbed her on the right shoulder using both hands, pulled her up off the mattress and then punched her with his right fist. She alleged that she blocked the blow with her forearm and he threw a further three (3) punches towards her upper body. She again tried to defend herself blocking the punches.
The applicant told PQ: “Go to the kitchen and call [R] to tell her I have kicked you out.” PQ walked into the kitchen and called 000 on the telephone. The applicant picked up a glass bowl and threw it towards PQ’s head. She blocked the bowl, causing it to shatter. A piece of glass scraped her lower lip causing it to bleed. The applicant snatched the phone from her and terminated the call. PQ called the applicant’s sister, collected her belongings and left.
When he was asked about this 2009 incident, he said it was a one day relationship. She said: “She slept in my room. I didn’t too”. He denied that he accused her of having a boyfriend and throwing her out. He said he had met her and she told him she needed somewhere secure to live. He said then he found her a job. She did not want it, “so I told her she had to go”. When it was put to him that the court convicted him of the offence, he avoided the question and said: “I gave her my phone. She rang the police with it”. And then he said: “She broke the vase”. He denied she had a cut on her lip which bled. He said: “She had no injuries”. He denied saying: “I will kill her” or “She is dead”. He denied making a threatening motion as alleged. And he denied threatening to “smash her” if she came back.
The applicant was convicted of a fourth common assault which was committed on 9 June 2009 on a 16 year old female person referred to in these reasons as “AB” and on 30 March 2000 he was found guilty by the Magistrate, convicted, fined $500.00 and and entered into a recognisance for a period of two years pursuant to s558 of the Crimes Act on the condition that he accept such treatment as prescribed regarding alcohol consumption.
In summary the police facts alleged that he approached AB, who was standing at the entrance to a tutoring school in Western Sydney. He “placed his open left hand against the base of her throat and pushed her up against a wall. He held up a small black diary in his right hand as if it was an identity wallet and said ‘Police, show me your I.D.’ ” She handed the applicant her Medicare card and Keycard. She believed he was a police officer. When he released his hold on her throat she called for the assistance of her sister who was a short distance away. Her sister offered the applicant money in return for the Keycard and Medicare card. He then returned the cards and left the area in a silver car driven by a female.
Later AB, her sister and a friend, saw the applicant walking in the street. AB was enraged and threw a can of soft drink towards the applicant. The three girls then summoned for help from friends at a nearby karate class who approached the applicant in a motor vehicle and spoke with him. The victim then attended Liverpool Police Station.
A police officer located the applicant at about 10:35 pm the same day. His speech was slurred and he appeared to be under the influence of alcohol. He was arrested and conveyed to the Liverpool Police Station, where he was interviewed with the assistance of a Bosnian interpreter. At that interview he admitted being at the location with the victim and two other girls and said he was protecting them from three unknown males, who, he said, were harassing them.
The applicant denied impersonating a police officer but said that he had told the girls to wait for the police. The police noted that when they saw him at 10:35 pm his speech was slurred and he appeared to be under the influence of alcohol.
In oral evidence in these proceedings he disputed the police version of what happened involving the sixteen (16) year old girl. He said: “A group of young kids asked for money. I had none and they bashed me – at Liverpool”. He said this was just after the separation from his wife, but it was in 1999 and they separated in 2000. He asked “Who is the person – name?”. He was asked whether he was convicted of the offence at Liverpool Court and he answered: “I didn’t touch anyone. The kids were fighting. I tried to separate them”. He denied putting his hand on her throat. He denied saying: “Police, show your I.D.”
He was asked whether he was convicted of the offence at Liverpool Court and he answered: “I didn’t touch anyone. The kids were fighting. I tried to separate them”. He denied putting his hand on her throat. He denied saying: “Police, show your I.D.” He denied when it was put to him that he had taken her Medicare card. He said: “No, I couldn’t talk at all”. When it was put to him he was arrested sitting in a car, he answered: “Waiting for them”.
When it was put to him that the police said he was intoxicated, he answered: “Yes”. But he said that he “was not drunk” and “he would have remembered what happened”. He denied that he pleaded guilty to that assault. That accords with the court record, which shows he pleaded “not guilty”. He said that his lawyer may have pleaded guilty. But the Court record shows that his appearance was “IP” (in person).
When it was then put to him that he had no lawyer present, he denied that he committed the assault.
When it was put to him that the police said he was intoxicated, he answered: “Yes”. He said that he “was not drunk” and “he would have remembered what happened”. He denied that he pleaded guilty to that assault and said that his lawyer may have pleaded guilty. When it was then put to him that he had no lawyer present, he denied that he committed the assault.
Those are the matters that triggered the assessment. There are other matters that led to the refusal for grant of clearance. One is his conduct in impersonating a police officer on the occasion of the incident on 9 June 1999. Another is his conviction for the custody of the knife in a public place on 30 June 2004 for which he was fined $300.00 with court costs of $63.00.
Another was his driving record which included the following offences:

23 May 1998 - Drive with the prescribed high concentration of alcohol – fined $750.00 plus court costs of $51.00 and disqualified from driving a motor vehicle for twelve (12) months.
10 June 1999 - Drive whilst disqualified. Fined $500.00 with court costs of $52.00 and disqualified for a further two (2) years and also state false name fined $200.00 and court costs of $52.00.
10 June 1999 - Driving with the high range prescribed concentration of alcohol: fined $800.00 and ordered to pay court costs of $52.00. Disqualification for two (2) years.

His first drink/drive offence was in 1998. He conceded that he was on a provisional licence at the time and was disqualified until October 2001. He was asked about a speeding offence in 2000 and he answered “If that’s what it says. I don’t remember.”
On 4 January 2006 he was convicted of disobeying a “left turn only” sign and driving whilst unlicensed. He was fined a total of $500.00 and ordered to pay court costs of $65.00.
He was subsequently convicted of driving whilst unlicensed on 18 November 2006 and at the same time refusing to undergo a breath test. For those two (2) offences he was fined a total of $400.00 with court costs of $67.00 and disqualified from driving for three (3) years. He was also ordered to perform one hundred (100) hours of community service.
In respect of a further charge of refusal to undergo a breath test on 18/19 November 2006 he was convicted, disqualified for a further three (3) years and ordered to perform a further one hundred (100) hours of community service.
There were matters that relate to the applicant’s health which were also matters that led to the refusal of his application. One was that he was diagnosed with Post Traumatic Stress Disorder, adjustment disorder with depressed mood, and Schizophrenia. He informed the officer of the Children’s Guardian in a conversation on 5 August 2013 that he had sought help from the NSW Health Services at a difficult time in his life. He said that he had been diagnosed in the past but there were no longer any issues. He said that he did not believe in tablets and was fine without medication.
When asked about being treated by St George Hospital for Schizophrenia and depression he said he could not remember that. He did not remember having an interpreter assist him at the Hospital or being treated there. He said he had recalled a psychiatrist prescribing medication, but he could not recall it being Dr Sokolovich.
The applicant did not rely on any medical evidence about his mental health.
There was also considerable evidence of the applicant abusing alcohol and having done so prior to occasions when he committed assaults or other abusive behaviour. He had told the officer of the Children’s Guardian that he had previously suffered from alcohol dependency. Corrective Service records showed that he used alcohol as a way of coping with difficulties in his life. He told the Office of the Children’s Guardian that he had ceased drinking alcohol on his own accord. His sister disputed that and there was no corroboration of his claim.
When he accessed Mental Health Services on 19 August 2009 for help with his mental health problems, he was classified as “over active, aggressive, disruptive or agitated” with problems with drinking or drug taking, hallucinations and delusions, and depressed mood. He continued to access those services until December 2009 and at the time of his last attendance on 21 December 2009, the Services considered that he had slight difficulty with conversation, had problems such as friction or avoidance living with others in his household, usually complied with the Health Service, usually was willing to take psychiatric medication when prescribed and was slightly unreliable in terms of caring for and taking his prescribed medications on time. From health records it appears the diagnosis of Schizophrenia and prescribing of medication (Zyprexa) for it was in 2003 and again in 2011.
There were other incidents with police involvement which did not result in criminal charges but which involved relevant conduct of the applicant.
Police recorded an incident on 10 August 1998. The applicant was arguing with his wife in their home at Roselands in a suburb of Sydney. He had returned home under the influence of alcohol. The police recorded there was a verbal argument and the applicant made threats of violence to his wife. He believed that he would be able to carry out the threats and feared for her safety. Police established that the assault had occurred. They noted that there was a serious verbal argument and threats of violence had been made by the applicant to his wife. They placed the applicant under arrest and took him to Burwood Police Station. There an interim apprehended violence order was applied for and granted by a magistrate at 2:45 am on 11 August 1998. The applicant was provided with a copy of the order and released from custody.
He said in his oral evidence he could not remember that incident. He said: “I was not violent towards my wife”. He said he could not remember the police being involved. He said, though, that he was aware of an interim apprehended violence order made in 1998 restricting his behaviour for protection of his wife. He said he did not recall why it was done. Later in his evidence he claimed to have no recollection of being drunk and violent and making violent threats in 1998 to his wife, and of the police being involved. When he was asked whether he was aware of an interim apprehended violence order made in 1998 he answered: “Probably, yes”. He said he could not recall why the order was made.
On 3 July 2004 there was an incident involving the applicant and an adult female, who told police that they were in a de facto marriage and she is also the carer for the applicant and he has schizophrenia. The applicant told police that he and the woman drank half a litre of red wine between them and then went home. When they arrived home the woman told him she wanted to go and attempted to take her car keys to go for a drive. The applicant did not want her to leave and did not want her to drive because she had been drinking. They had an argument and the woman left and went to the police station. She was later asked to leave the police station.
At about 11:00 pm that night the woman returned to the home and at about that time police received a report that a woman had a stab wound to her head caused by a male and attended at the address of the applicant. They could not raise anyone. They observed a pool of blood at the base of the brick walkway at the front door. Other drops of blood and a hand print in blood were also located on the ground and on a white stool outside the front door. There was a female’s handbag outside the front door.
Police recorded that the applicant was raised and answered the door. He had a large cut to his forehead along the hairline. He also had blood all over his face, shirt, hands and upper body. Droplets of blood were seen in the hallway entrance and leading into the lounge room. The police were permitted to enter the premises by the applicant and saw a woman lying on the lounge room floor. Police asked the applicant what had happened and he could not give an explanation. She was “mumbling, without being able to be heard”.
Ambulance officers entered the premises and woke the victim. Her legs were shaking constantly and uncontrollably. The applicant was again asked what had occurred and said that he and the victim had had an argument and the victim had pushed him. When she pushed him, he fell hitting his head on the bricks at the front entrance to the house, causing the cut to his head. He then said that when the victim pushed him, she also fell causing the cut to her head as well. Police noted that the applicant “continued to give versions of what occurred, however, these versions varied each time he spoke”.
Both the applicant and the woman were conveyed by ambulance to hospital. At the hospital the woman was interviewed. She said that they had had an argument and they were both pushing and shoving one another. She recalled the applicant falling onto the front entrance way into the house, but says she couldn’t remember anything else. She did not recall how she suffered the cut to her head. The applicant also said that after he fell, he could not remember what happened. He said he could not remember how the woman suffered the cut to her head or how she ended up inside the house on the lounge room floor.

The police reported that “Neither party seemed concerned about what had occurred or wished to provide police with further details”. The woman did not wish for any further police action to be taken. The police also observed that at the hospital that the parties “seemed calm and friendly towards one another whilst at the hospital”.
He was cross examined in relation to the incident in July 2004 with his de facto partner. He said he hit his head at home and there was a pool of blood on the walkway. He said he did not know whether his partner’s handbag was outside. The question he was asked whether she was lying face down in the lounge room and he said: “I don’t know”. He was asked whether he agreed with the description of what happened and he answered: “I don’t know what happened” (to her) and later, “I never touched her”.
He was asked about his de facto’s reported comment that “Next time I might get stabbed in the stomach”. He said: “I don’t know”. He denied he stabbed her. He said: “I was not charged. She was not”.
On 2 February 2008 police were called to the applicant’s home at Brighton. It was reported that at 11:00 pm the applicant was at home having drinks with other relatives in the unit. His niece EF arrived outside with several friends. The applicant saw EF from the balcony and watched her for at least thirty (30) minutes. He told the police later that EF was dealing in drugs and was doing so at that location. He yelled for her to leave. She yelled abuse back at him so he went downstairs and continued yelling at her to leave. He called the police. They attended and EF told them that the applicant had assaulted her friends, who had since left. The police recorded that no persons were at the scene to report any assault and the applicant would not supply police with the details of those persons. He denied assaulting anyone. They recorded:

“Other relatives were spoken to and they all stated EF is bad news and was not welcome at the unit. As a result the police asked EF to leave and informed her she was not welcome.’

On 26 January 2009 the applicant and a female adult were drinking at the applicant’s home celebrating Australia Day. The female adult was found on the ground by a neighbour after apparently falling 5.5 meters from the bedroom window. She was taken to a public hospital by ambulance. She had suffered broken ribs and cracked cervical vertebrae. She told ambulance officers that she had been pushed from the window. Police attended the property and spoke with the applicant. He said that the female adult had fallen, and had not been pushed. He said that before the fall they had been arguing about whether to have a BBQ at home or go to the beach. Police arrested the applicant and took him to a police station.
The police were unable to obtain a statement from the female adult because of her “incapacitation in hospital”. Detectives interviewed the female adult the next day after she was transferred to another hospital for further treatment.
The police recorded that in the process of her being questioned by the detectives about the previous day she began to remember more. She said that she had been with the applicant at the beach earlier that day and then returned to his unit where they consumed some alcohol. She said she then had a sleep in the bedroom and then drank some beer but then she said she could not remember anything further. Then in relation to after questions about falling or being thrown out of the window she said: “I’m not a fool, I didn’t fall” She told them that she had been pushed from the window. The detectives recorded that she “appeared ‘scattered’ and was asking police if she was in trouble”.
The female adult told police that the applicant had sent her numerous threatening text messages and the police could check her phone. She told the police that her phone was at the home in a particular bag. Police obtained a search warrant, returned to the home and searched for the phone, but could not find it.
On inspection of the applicant’s phone, police located some messages to the female adult, but none of them were threatening. The applicant declined to give a statement and told police; “Leave it for court, there was no assault”.
The female adult had told police that the applicant had locked her in the room from which she fell. Police inspected the door to the room and there was no locking device. Police noted that both parties appeared on the night to be affected by alcohol. They noted a bottle of vodka in the handbag of the female adult and a six (6) pack of beer with two (2) remaining beers beside the bed. While searching for the phones, police located a plastic bag with about ten (10) syringes and sterile swabs inside. They did not ascertain to whom the syringes belonged.
She also said that she had argued with the applicant because he wanted both of her mobile phones and then he had locked her in the bedroom. (Police had confirmed that there are no locks on the bedroom doors of the unit). She stated that she went and sat in the shower for a while and then returned to the bedroom where the applicant approached her with a large knife. She did not believe he was going to stab her. She said he grabbed her by the shoulder and threw her out of the window.
When the Police attempted to clarify her version of events, she became “very abrasive towards police and refused to answer any more questions”. The police recorded “She was agitated and informed Police she had already said everything she was going to say and her answer to any question was ‘Is that relevant?’”.
Eventually the female adult shouted at the Police to leave and said that she would not assist in the investigation in any way. She told them: “Yeah, just get out”.
The female adult had a damaged C7 vertebrae, three broken ribs, two on the left and one on the right), a broken left hand and a suspected broken right hand. The only surgery required was in respect of the broken left hand.
The applicant later took the Police through the unit and showed them his version of events. They recorded:

“He stated he was drinking beer and she was drinking vodka. He said she had been asleep in the bedroom, but woke up and stayed in the bedroom for a while. She was dancing around on a bed in the room and was heavily intoxicated. He stated he bought some food for her and that he could on the BBQ and put the plate down near the television next to the bed. He said [female adult] was still dancing around on the bed waving her arms in the air, drunk and laughing. As he walked out of the bedroom he went to shut the door behind him and looked back at her to see her falling in slow motion backwards towards the window which she then fell out of and landed on the ground”.

The Police recorded:

“The layout of the bed is placed across ways almost directly under the window. The bed is about thirty (30) centimetres from the wall and the window. [The applicant] stated the window was open at the time, the same as it was when police attended the location. The gap the window (sic) was open, is large enough for someone to fall straight through. The gap was about one (1) metre wide by 1.5 metres high.”

The police explained to him on that occasion the apprehended violence order which had been served upon him in respect of the female adult.
At the Tribunal hearing the applicant was asked about the occasion where his girlfriend fell from the balcony. He denied he pushed her off the balcony and said there had been no charge against him.
There was another incident recorded by the police, but not the subject of prosecution proceedings, which occurred on or about 3 May 2010.
The applicant and an adult female (“MN”) had been at the applicant’s residence since about 6:00 pm on 3 May 2010 They had consumed alcoholic drinks. At about 3:30 pm that day the applicant and MN argued in relation to MN using the applicant’s cigarette lighter after having been told not to do so. The police record is as follows:

“MN went into the bathroom with a beer and locked the bathroom door. She placed the beer bottle on the vanity and then exited the bathroom through the window. As she exited the bathroom through the window, she stood on the vanity and knocked the bottle of beer off the vanity causing it to smash on the bathroom floor. Not long after the applicant needed to use the toilet and attempted to enter the bathroom. He knocked and called for the victim to open the door for about five (5) minutes. There was no response. He exited the unit and entered the bathroom through the window. When he stepped off the vanity, he stood on a broken piece of beer bottle causing an injury to his right foot. He immediately contacted MN by mobile. She was at a railway station. He asked her to return to help him clean up the bathroom and aid him with his injury. She agreed and returned. She cleaned the bathroom and then called the police to attend. Police arrived at about 1:10 am on 4 May. MN then informed the police that she did not wish to provide a statement in relation to the incident and did not wish to apply for an apprehended violence order on her behalf. Subsequently, an ambulance was called for the applicant and at about 1:30 am it arrived. The ambulance staff examined the applicant and asked him to attend the hospital for treatment but he refused. He also refused to have them clean and dress the wound. He said he would attend the hospital in the morning. The ambulance staff also spoke with XY and she told them that she wanted to stay with the applicant and help him with his injury.”

There was a further incident involving the applicant and recorded by the police, which occurred on about 19 July 2010. The applicant had been staying at the home of XY a female adult for about a week. They had both been consuming beer at home. They went to the hotel and drank more beer. When the hotel closed at 10:00 pm they left and became separated. The applicant was unable to locate XY and went to her house. She was not there. On his way to return to the hotel he found her. They had an argument and he swore at her. She punched him several times. After he arrived home, she confronted him in the bedroom and punched him further times to the head and body. He raised his arms to protect his head and XY hit him several times to the testes. He fell off the bed and attempted to push her off him. She continued to punch him to the head causing him to again raise his arms to protect himself. She again punched him to the testes while causing him to fall to the ground. She punched him further times while he was on the ground.
The applicant called the police. XY took the phone from him and told the operator that the applicant had assaulted her and asked for the police. The applicant told her he was calling the police. She let go of him. He took his mobile telephone and dialled 000. She let go of him. Before he was connected, XY took the mobile phone from him and told the operator that she wanted the police because the applicant had assaulted her. He alleged that XY later hit the applicant on the head with the mobile phone. He left the home. He waited outside for the police to attend. Police arrived and spoke separately to each of the applicant XY. Each made accusations against the other. XY claimed that the applicant had punched her in the eye but the police could see no injury marks on her face. The applicant had swelling and a cut arm and hand. The applicant’s visible injuries were consistent with his version. He was reluctant for the police to take action against her. He told police that there had not been any previous violence between them. However, he made a statement and allowed police to photograph his injuries. The police arrested XY and cautioned her.
On 22 July 2010 the applicant had obtained an apprehended violence order against XY. He has told the court that they had been in a domestic relationship. An apprehended violence order was made restricting the behaviour of XY for the protection of the applicant. Later the same day the applicant called police and requested that they attend and take XY to gaol as she was in breach of her apprehended violence order. When the police attended, the applicant told them he did not want XY to be charged and she had been residing with him for the past month. Police arrested and cautioned XY. They noted that she was well affected by alcohol and admitted to having consumed half a cask of wine.

The Period of Time Since Those Matters Occurred and the Conduct of the Person Since They Occurred

The evidence is that the applicant’s suffering from Post Traumatic Stress Disorder is the result of events he experienced in Serbian forces during the Yugoslavian Wars. It is likely that this was aggravated by the relationship breakdown and separation of him and his wife.
He and his wife came to Australia as refugees in 1997 with their son. They separated in 2000 and the acrimonious separation aggravated his mental health problems in 2001. After the separation the applicant suffered from PTSD, depression, Schizophrenia, loneliness and also used alcohol as a coping mechanism. He was abusing alcohol.
He worked as a welder when he first arrived in Australia. But in 2001 he was assaulted in an altercation and suffered injuries to his left eye resulting in blindness in the eye. After that eye injury he received a disability pension for 4.5 years and some compensation regarding the injury. In 2006 to 2009 he worked as a cleaning supervisor for two (2) different employers. From March to September of 2009 he was unemployed and received Social Welfare Payments.
After the offence of assaulting a sixteen (16) year old girl on 9 June 1999 he entered a recognisance to be of good behaviour for a period of two (2) years on the condition that he accept such treatment as is required by the Probation and Parole service regarding alcohol consumption. There is a history of serious problems of the applicant by way of alcohol abuse and diagnosed Schizophrenia.
In 2001 he was diagnosed with Schizophrenia and medication (Zyprexa) was prescribed for him. But as at May 2009 he had seen his psychiatrist twice only (in 2004 and 2007). The psychiatrist had difficulty obtaining information from the applicant and making a diagnosis. The psychiatrist reported to the Corrective Services Department that the psychiatrist had prescribed medication and the applicant did not follow up for further appointments.
In a Pre-Sentence Report of 29 September 2009 it was noted that at times the applicant had ceased taking the prescribed medication after complaining of side effects. The report noted that the applicant was at that time being treated by the Mental Health Program at St George Hospital and had been prescribed anti-psychotic medication. Arrangements had been made for him to be seen by a psychiatrist with whom he could converse in his native tongue.
At that time, the applicant told the author of the report that alcohol is no longer a problem and was not a factor in the offence that resulted in him being subjected to the supervision of the Probation and Parole Service which commenced in March 2000.
As at the Probation and Parole Report of 29 September 2009 it was noted that although the offender had been diagnosed as Schizophrenia and was receiving appropriate treatment, he “has a tendency to not always follow directions with respect to his medication”. He was also at that time being treated for depression. He denied any involvement in the offence that resulted in the Pre-Sentence Report.
After the offence against his niece, the applicant was subject to an order that he perform two hundred (200) hours of community service and be subject to supervision by the Probation and Parole Service. He told the staff member of the Service who dealt with his intake and completed his intake data form that he was drinking ten (10) beers a week and this was problematical because he was bashed a year previously. He also said that he was on Zyprexa for 3 to 4 years due to the fact that he lost his eye and was very depressed.
At that time he said that he had not had a psychiatric assessment and needed another psychiatric consultation. At that stage, he had also failed to attend his community service initial induction and work hours. He had been ordered to perform two hundred (200) hours of community service, but he had done only 30 to 40 hours.
The Probation and Parole Service applied for revocation of the order for community service made on 12 August 2008. He did not provide a reasonable excuse for failure to attend as directed on 27 August 2008 for a Community Service Induction Session. He said he could not attend because he had a paid work commitment. He was directed to attend the next session, but failed to do so on 17 September 2008. When he did so, his obligations and responsibilities under the Act were explained to him. He signed a work instruction for him to commence work at a school on 25 September 2008 and thereafter every Thursday from 8:00 am to 3:00 pm. He failed to attend that appointment and subsequently attended only two (2) appointments for community service of the nine (9) appointments he was directed to attend, despite reminder letters.
On 13 January 2009 the officer in charge of the Probation and Parole Service made an application for revocation of the Community Service Order because of the applicant’s failure to attend such appointments.
The Community Service Order was revoked by the Kogarah Local Court on 16 April 2009 and the matter was adjourned to 14 May 2009 for sentence. On that occasion the applicant was described as co-operative, but declined to sign the undertaking to comply with an order for periodic detention. On July 8 2009 Judge Solomon of the District Court revoked the Community Service Order and sentenced the applicant to eight (8) months imprisonment, the sentence to be suspended on the applicant entering into a bond to be of good behaviour for a term of eight (8) months and to present himself to the court for sentence in the interim, if so required.
When he was cross-examined about his failure to attend to all the occasions to perform community service he said: “I finished all my hours”. On the balance of probabilities he knew that was untrue. When it was put to him that the community service order was revoked because he had failed to attend all the occasions he was required to attend he then said: “I did otherwise”.
In about April 2009 an interview with an officer of the Probation and Parole Service in anticipation of the decision by the District Court as to an outcome from the revocation of his Community Service Orders, the applicant told the officer that up till two years ago he was a heavy drinker and when he was assaulted and his eye was injured. He said that drinking was not a problem for the last two (2) years. It was also recorded that: “He said that he now drinks on occasions”.
It was also recorded “Schizophrenia since the assault, was taking Zyprexa until 1 to 2 years previously”. It was reported: “He said he stopped because it was difficult to work on medication”
On 9 October 2009 a General Practitioner, Dr EL certified in a medical certificate for Centrelink supporting an application by the applicant for Social Welfare payments. In that certificate she certified a diagnosis of the applicant of “Adjustment Disorder with Depressed Mood. Possible Psychotic Symptoms”. She noted that the applicant had been her patient since 25 September (for two weeks).
In his oral evidence the applicant testified in relation to his health problems. He made light of these and there was no evidence offered by him by any medical practitioner in relation to the diagnosis of Schizophrenia and depression or his mental health generally. There is no evidence of any psychiatric assessment in recent years.
When asked about his health, he said: “It’s ok. Sometimes I have stomach problems but otherwise it’s ok.”

He said that his health problems happened at a time when “everything happened”. He said he lost his wife, he lost child and he lost his eye in a fight. He said that “for a few years” he wasn’t well and then when he recovered and got a job, he lost it “just before I went to the farm in 2013.”
He said he is not taking any medication. He said that the diagnosis of Schizophrenia came about at the time he lost his eye. But things have improved since them. He was supervisor of cleaning when he was working. He was asked about the medication for Schizophrenia and said he did not take it or go to further rehabilitation treatment. He said: “It got better. I felt good”. He said that: “The medication that had been prescribed for me made me feel sleepy. I stopped because I felt good”. He said with the schizophrenia: “I started feeling better. I didn’t want the pension if it wasn’t needed. There was no need for medication.”
It was put to him that it wasn’t mentioned in his letter and he answered: “I don’t remember”. Of the fact that he was treated in 2009 at St George Hospital for Schizophrenia and depression, he answered: “I don’t remember that”. It was put to him that he had the services of an interpreter to help him at the hospital and he answered: “I don’t remember going to St George Hospital or being treated there”. He was shown a letter from Dr Sokolovich, a psychiatrist who saw him. He conceded that he saw him, but he did not recall the letter. He conceded that the letter was addressed to his then home address.
He was asked about anger management and whether he had attended any counselling or course for anger management. He said: “I went to a place at Hurstville and they said I was fine”. He volunteered then that the only incident regarding violence was the mother (his niece EF) of the children and after school care. They rang and said the children were not being collected. They came home and saw the children’s mother (EF) smoking (marijuana) with a friend. There was nothing physical.
The applicant told The Tribunal that: “The lady who delivered the anger management course was very helpful and she gave details of who I could contact if I had a problem” and “at that time in my life everything was a problem”. He did not testify that at any time he contacted any such person or that he obtained any assistance from any such person. He said she also gave him details on how to cope and how to deal with problems. He was not able to give an explanation as to why he did not provide such information when the Crown Solicitor had requested him to do so. He was shown a letter of 1 June 2017 where the Crown Solicitor requested details of any counselling or therapy he had undertaken. He said his sister filled out the reply because he could not write English.
There was also considerable oral evidence by the applicant in relation to what was a serious problem of use of abusive behaviour (including violence) towards other people. He provided no medical or other expert evidence in relation to his present state regarding the use of abusive behaviour against others and his tendency to anger. There is no independent evidence of him attending any anger management course although he seems to have attended a course at Hurstville, but frequently he tended to minimise aggressive or violent conduct or generally abusive conduct.
He claimed he had used a counselling service at Hurstville “many times” but there was no evidence from any psychologist or other person who might corroborate that evidence of “many times” and he had no document or evidence from any expert other person that he did so attend. It is of concern in this regard that he tended to minimise aggressive violent or abusive behaviour that has occurred between him and others or that is alleged to have occurred between him and others.
He conceded that there was probably an interim apprehended violence order made against him in 1998 restricting his behaviour for the purpose of protecting his wife, but he said he could not recall why the order was made. He said the anger management that he attended at Hurstville on two (2) occasions was organised through the Parole Office. But that there was no record in the documents from the Parole Office of such course or his attendance. When he was asked what year he attended he said it was after an offence of driving with more than the prescribed concentration of alcohol in his blood. It would seem that was not an offence whereby a court would have ordered him to attend an anger management course.
There may have been circumstances, which he did not disclose to The Tribunal, as to why that coincided.
He then later said that he thought that he was referred by the anger management course to the counselling at Rockdale. He was asked why he was referred to the counselling course and he answered: “being nervous”. He said there were group therapy sessions.
He was asked if he had any documentary evidence of him having attended any anger management course or counselling regarding violent behaviour. He did not. He said he went to Hurstville for anger management counselling “many times”. He said he went there through the Probation and Parole Service. He conceded that he had not made mention of any group therapy at Rockdale in his documents for the Tribunal even though it could have been provided after his letter of 20 June 2017. There was no documentary or other evidence corroborating his alleged attendance at an anger management program and his uncorroborated evidence in the context of his poor credit generally ,did not persuade the Tribunal that he did.
From the applicant’s oral evidence it appears that much of the time in the last few years he has been residing in rural areas in the Hunter Valley where there are very limited hotel or bar facilities, and somewhat remote from any shopping centre, and he has not had a car or a driver’s licence. The public transport in such areas is also extremely limited. He said he has no driver’s licence now. He said he had learner plates for a few months ago but decided not to attempt the test or have a licence.
In about May of 2009 in an interview with a Probation and Parole Officer in preparation for the hearing of the proceedings to revoke his Community Service Order, the applicant said that alcohol was a problem for him before he was bashed, but subsequently his consumption is ten (10) beers per week.
In oral evidence he was asked questions about his alcohol consumption and what therapeutic steps he had taken to overcome that problem. On 28 August 2017 he said that now he maybe has two (2) beers at a time only but only if his son is visiting. He conceded that he has provided no medical evidence regarding his use or abuse of alcohol. His own evidence as to his drinking was not corroborated and was only offered in cross examination. It appears he did not recognise its significance to his application. He said that he went to alcohol rehabilitation classes at Rockdale on only two (2) occasions. He said: “After that they said I had no problem and did not need to attend any more”. He did not produce any witness or documentary evidence to support this claim. It seems highly unlikely that he could have recovered so easily and so quickly, from the serious problem of alcohol abuse.
He seemed to be aware of the number of occasions when he had been drink/driving. Those occasions were mostly high range alcohol readings suggesting he had a serious alcohol addiction.
In his evidence he did not acknowledge one of the conditions of the good behaviour bond that he received was that he obey the directions of Probation and Parole Service regarding attendance for alcohol rehabilitation. Indeed, he did not offer evidence of what directions were made and what he did in response to them.
In relation to what he did regarding alcohol, when asked he said that he attended two (2) sessions of an alcohol course. It seems extremely unlikely that if there had been a serious problem with alcohol abuse it would be overcome by only two (2) sessions trying to rehabilitate him. It is concerning too that notwithstanding the serious problem he had with alcohol abuse, he still uses alcohol. If he did have such rehabilitation and such results, one would have thought that he would have provided some response to the letters from the Children’s Guardian and the Crown Solicitor asking for him to provide details of any therapeutic or other courses or treatment he had attended.
The applicant told The Tribunal that he does not drink any more, but this is not consistent with his other evidence that he does. He provided no medical evidence in support of the claim. He acknowledged that a lot of the incidents of violence or aggression with other people have involved his use of alcohol. But he said: “I have changed completely”. “I am not a person to get drunk and make a fool of myself”. When asked what he thought caused this change he said: “I just don’t know. I just changed. I don’t drink anymore and I don’t have trouble any more”.
He said the counselling he went to at Rockdale was not proposed by a Probation and Parole Officer but “I think I was referred by the anger management course”. But when asked what it was for, he said “being nervous”. He said there were group sessions and people were saying what their problems were. He said he did not find it helpful and he went to only two (2) sessions. Then he said that he went on many occasions to the anger management course and only twice to the alcohol course.
He continues to use alcohol and does not offer evidence that at any time since the assault convictions he has ceased to do so. Nor is there any medical evidence that his use of alcohol is controlled or that he is not abusing alcohol. The Tribunal is not persuaded by his uncorroborated evidence that he does not have a continuing problem with alcohol.
The applicant had incorporated a cleaning company to provide employment for him and others in the cleaning industry. The company subsequently failed and was liquidated. The applicant was prosecuted for offences of failing to help the liquidator and failing to report the company’s affairs to the liquidator. On 11 February 2014 he was convicted and fined $1,000.00 on each of those charges.
Another issue of considerable concern was that at a time after the applicant had been refused a Working With Children Clearance and his sister, who has the foster care of two (2) of her grandchildren, being a boy, who will be referred to as “X”, born on 15 November 2004 and a girl, referred to as “Y”, born on 21 September 2011, His sister had been directed by the Department of Family and Community Services that the applicant was not to reside in the home with the children and was not to be with the children without being supervised by a responsible adult. He was aware of that.
Notwithstanding the direction, in June 2016 it was discovered that the applicant and his sister had breached the direction and the applicant was living in the home and had unsupervised contact with the children.
As a result the children and the sister moved from the home to temporary accommodation. The applicant testified that he resided in the garage until he found other accommodation. It was some weeks until the applicant moved to other accommodation. At the time X was eleven (11) and Y was four (4). The Department placed the children in the care of another daughter of the applicant’s sister. The major concern about these events was the dishonesty of the applicant and his sister in misrepresenting that he was not living in the home.
He conceded that Settlement Services International (“SSI”) told his sister that he could not stay in the house. He said: “But [she] needed my help”. He conceded that in June 2016 SSI and the Department found out that he had been living there for six (6) months when he and his sister should not have.
He recalled that at an interview in June 2016 when he was asked for proof of his address, he said his wallet was in the car and when he produced his pension card, it showed his address as his sister’s address.
He said that his sister had had to move out and the owners had sold the house, but he was being allowed at the time to stay in the garage.
It was put to him that SSI said that he had told them that he was living at his sister’s house in Sydney. He said that he stayed at three (3) addresses one of which was in Sydney. He said he denied that he was not being honest. He said: “The only thing I said untrue is I did not tell them I lived in the house”. He conceded that he did tell them that he was not living in the house. When it was put to him that he gave two (2) other addresses, both of which were untrue, he answered: “Well they should have checked them”.
It was put to him that the children were removed and placed with other people because he had been dishonest. He answered: “I don’t think me being dishonest was sufficient reason for them taking the children away”.
He relies upon a reference from his present landlord. She has known him for about thirteen (13) months. She has been present when he has been visited by his sister and her daughter on many occasions and has observed their long relationship and the implicit trust his great-niece has for him. He often joins the landlord’s children playing in the garden when they are visiting. He does not participate unless invited. He has a good relationship with the landlord’s ten (10) year old grandson and they go to the local park to play soccer. The landlord has “complete confidence” of him during those times. She says she has never known him to show any anger or violence in front of the children. She has never heard him swear and describes him as: “A complete gentleman and friend to myself and all of my family”. She says she would have no hesitation trusting him with her grandchildren nor recommending others to trust him with their children.
The principal of the public school where his great-niece and great-nephew attend has known him for more than six (6) years as part of a family group and has been in his company many times. He testifies as to the applicant’s friendly and respectful behaviour. He says: “At all times [DAJ] has been courteous and polite in his dealings with teachers and students”.
At present he is not doing any work on the farm property of his sister.
In his oral evidence the applicant had limited insight into the reasons for the refusal of his application. He testified that he does not see a reason why he cannot be with the children. He said: “I haven’t done anything wrong with them. They have never seen me angry. They have never seen me raise my voice. I am very close to the children and they are close to me. Every time I have to leave them they are tearful and ….” He said “Life is hard for my sister without my assistance” and it is hard for the children without him helping.
He said that he “feels the refugee because I have to stay away from the children” and also he does not see any reason why he has to stay away and wants to move back into the home.
In answer to a question from one of the panel he said that if he gets a clearance he intends to go back to live in his sister’s house. He said that he had accommodation provided by the Department of Housing in 2011 for 18 months. There were problems with fights with the other tenants and he wanted to leave. He said he was assaulted on a few occasions but he did not assault anyone. He said he left of his own accord and proposed to go to other accommodation of theirs. He said this accommodation was too long becoming available and he moved to his sister’s farm in 2013. His cleaning company at that time had lost the contract, but that was not the reason he moved.
When asked why he delayed in filing the review application, he said that he had had discussions with others at the time about reviewing the refusal decision and someone told him that he would be sent an appeal form, so he waited for the form. He said he did not receive the letter detailing what should be done in relation to any review. But he conceded that SSI told him what should be done if he wished to review the refusal.
The tribunal found the applicant to be sometimes dishonest and generally unreliable. On many occasions of which he has given evidence, he was affected by alcohol. On issues where there was no corroboration of his evidence the Tribunal generally preferred the version in records of police or given by others.
In answer to a question from one of the panel, that how he manages children he said: “It’s easy – talk to them. They are beautiful kids and they listen. If they don’t, I talk to them more”. He was asked about what other strategies he has if they don’t do what he asks them to do and he answered: “Help them, talk about what is good to do or not good to do”.

The Period of Time Since Those Offences or Matters Occurred and the Conduct of the Person Since They Occurred

It is now eight years since the most recent of the assaults of which he has been convicted. It is about 10 years since he was convicted of a driving offence.
There are others of the problematic incidents involving the applicant that occurred less than 8 years ago.

The Age of the Person at the Time the Offences or Matters Occurred

At the time of the assault the subject of most recent assault conviction, the applicant was forty-one (41). At the time of the first assault of which he was convicted, he was thirty-one (31) years of age. Others of the adverse matters have been more recent.

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

The victim of the assault that occurred on 30 June 2004 was sixteen (16) years of age.
She was vulnerable because of her immaturity and inexperience and furthermore because of his impersonation of a police officer. He made demands on her purporting to be a police officer and causing her to hand over her Medicare card and her Keycard.
All the applicant’s other victims of his assaults have been adults and apart from the security guard, have been women. The niece that he assaulted was twenty-six (26) years of age and pregnant. The ages of the other adult victims are unknown.
The female who had been in a brief relationship with the applicant and was staying in his home on a mattress in the lounge room was otherwise homeless and vulnerable in that regard.

The Difference In Age Between The Victim And The Person And The Relationship (If Any) Between The Victim And The Person

The difference of age between the applicant and the sixteen (16) year old girl was 25 years. The difference between this age and the age of his niece was about 25 years. The differences between his age and the ages of the other victims are not known.
He was not related to the victims other than his niece.

Whether The Person Knew, or Could Reasonably Have Known, That the Victim Was A Child

The Act in Section 5 defines “children” as “persons under the age of eighteen (18) years. It appears from the circumstances of the assault that the applicant chose the sixteen (16) year old victim because of her young age to impersonate a police officer and to make the demands of her that he did. On the balance of probabilities he knew that she was a child.
The other victims were not children.

The Person’s Present Age

The applicant is now fifty (50) years of age.

The Seriousness of the Person’s Total Criminal Record and the Conduct of the Person Since the Offences Occurred

The applicant’s background before he came to Australia involve serious trauma damage in a war. His total criminal record since his arrival in Australia is a history of about 20 years of breaches of legislation and orders and directions by courts and other authorities., His time in Australia has been a chaotic lifestyle marred by Post-Traumatic Stress Disorder, depression, schizophrenia, alcohol abuse, abusive behaviour by him (including violence), breaches of legislation, court orders and directions of other authorities, disregard of medical advice, diagnosis and prescriptions and extensive irresponsible conduct.

There is no evidence offered by the applicant by any forensic psychiatrist or forensic psychologist as to the likelihood of him continuing such conduct in the future.
The Tribunal is not satisfied on the evidence that the applicant has overcome his problem of alcohol abuse. There is no evidence before The Tribunal assessing his mental health and the likely effects of depression or schizophrenia or his alcohol use or abuse on his future behaviour. Given too the diagnosis of Schizophrenia, the Tribunal finds there is a real risk that his future conduct will be involve drunkenness, arguments, physical confrontations, abusive behaviour towards others(including assaults) and problem behaviour from his Schizophrenia. There is a real possibility on the evidence, such as it is, that under the influence of alcohol the applicant could be violent to a child or be violent to someone in the presence of children.
His disobedience of orders disqualifying him from driving, to attend anger management rehabilitation, and to undertake alcohol rehabilitation and directions given by SSI/FACS not to have unsupervised contact with his sister’s children and not reside in his sister’s home, his failure to comply with a medication regime prescribed by a medical practitioner for his Schizophrenia, and his history of alcohol abuse, abusive behaviour and his unresolved mental health problems, together establish that he poses a real and appreciable risk to the safety of children.

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

The applicant’s sister told The Tribunal in her oral evidence that her two grandchildren have been in her care for seven years and 3.5 years respectively. She said her brother had lived with her in 2013 and in 2016 while her two grandchildren were in her care. She said that because of that her brother made an application for a Working With Children Check Clearance. Similarly the sister’s daughter applied and obtained a Clearance. The Clearance application of her brother was refused on 5 June 2014. Meanwhile, he had been there without a Clearance. The applicant and his sister were prohibited from allowing the applicant to have unsupervised care of either of the children.
She said that he moved out in June 2014 and lived elsewhere. She said she had not understood how serious it was, or the legal requirements were until “a couple of years later”. She was then told by Settlement Services International that he could not sleep over in her home and he had to be supervised when he was with the children. She told the applicant that and after June 2014 he moved. But after June 2014 he returned to live in the home. She said she allowed him back because it was: “Easier for us. He was giving a hand. I live on a farm. I required help with the animals, the firewood and the gardens.”
She also said that at the time she had had three (3) “bad injuries” on her legs which did not heal for seven (7) months.
She said that in June 2016 SSI found out that her brother was living with her and told her that he could not stay. Initially she moved out of the home with the children and stayed temporarily in a hotel. The children were then removed from her care while she was overseas for five (5) weeks. She said that while she was away the children were placed in the care of her younger daughter, who was a child care worker.
After she returned, the children were returned to her care.
When asked why she lied to SSL by telling them he was not living there she said: “It was working out and I needed the help”. She said that the applicant is still attending some of the children’s activities and the children see him sometimes once in two months and sometimes once per month.
In his oral evidence he said that he does not have a car so he does not drive to his sister’s place. He does not have a driver’s licence. He is living some considerable distance from her place and it is not walking distance. He said in his evidence: “I do not see a reason why I can’t be with the children. I have done nothing wrong with them. They have never seen me angry. They have never seen me raise my voice”. He said he is “very close” to the children and they are close to him. He said “every time I have to leave them, they are tearful”. He said life is hard for his sister without his assistance and it is hard for the children without him helping. He said he doesn’t see any reason why he has to stay away and he wants to move back into the home.
It was put to him that when he applied for the Clearance he did not disclose his sister’s address as his residential address. He answered: “I don’t know”.
Closing his submissions he said: “I hope you will resolve this in my favour – not just for me. But also for my sister and the kids”.
It is noted that the Act requires that where a clearance is given, it cannot be subject to conditions. It cannot be restricted to particular children or children of a particular age. It applies to all persons under 18, even 17 year olds, difficult children and children with serious behaviour problems.

Any Other Matters That the Children’s Guardian Considers Necessary

There are no such further matters.

Conclusion as to Risk

The Tribunal has concluded that the applicant poses a real and appreciable risk to the safety of children for the following reasons:

He appears to be suffering from mental illness, namely Schizophrenia and is not managing that illness in that he is not taking medication that has been prescribed for him and for some considerable time has not consulted any psychiatrist or general practitioner in relation to that;

He has a history of suffering from Post Traumatic Stress Disorder and depressive mood and there is no medical evidence as to whether that is continuing, how that compromises his health and behaviour, and as to the likely consequences in terms of his health and behaviour;

He has a history of alcohol abuse and does not appear to have undertaken any real rehabilitation in respect of that. There is no medical evidence or other expert evidence that he has overcome that problem. The Tribunal does not accept his uncorroborated evidence that he has. The Tribunal therefore finds that on the balance of probabilities his problem with alcohol abuse is continuing;

The applicant has a history of abusive behaviour, including violence. He relies on his own evidence that he has overcome this problem. But his evidence is not corroborated and;

The Tribunal does not accept that the steps he alleges he has taken in relation to overcome such a problem have been effective and done so. His evidence is uncorroborated and there is no evidence from any psychiatrist or other person with expertise in that area to say that his problem with abusive behaviour has been overcome; and

For nearly twenty (20) years the applicant’s lifestyle has been chaotic. That includes his failure to manage his application for a Working With Children Check Clearance where he failed to notify the Children’s Guardian when he changed address and failed to organise mail sent to his old address to be forwarded to him, thereby not receiving notice of the refusal of his application and the period of twenty-eight (28) days within which to file an application for a review of the decision. Generally the evidence suggests his lifestyle will continue to be so troubled.

The tribunal has concluded that the applicant poses a real and appreciable risk to the safety of children.

Sub Section 30(1A) Requirements

The Tribunal has concluded that a reasonable person with knowledge of the matters referred to above as the reasons for a finding that the applicant poses a risk to the safety of children would not allow his or her child to have direct contact with the applicant that was not supervised by another person while the applicant was engaged in any child-related work.
The Tribunal has also concluded that for that reason it would not be in the public interest to make an order granting the applicant a Working With Children Clearance.

Conclusion

The Tribunal has decided that the correct and preferable decision, having regard to the material before it, is that the decision of the Children’s Guardian to refuse a Working With Children Check Clearance for the applicant should be affirmed.

Privacy

For the purposes of privacy of the children and adults referred to in the reasons, there should be an order prohibiting the publication or broadcast of the name or details identifying the applicant, any child referred to in these reasons or any relative of the applicant.

ORDERS

Accordingly the orders of the Tribunal are:

The decision of the Children’s Guardian of 5 June 2014 refusing the applicant a Working With Children Check Clearance is affirmed.
Publication or broadcast without the leave of The Tribunal of any name or other identifying information of the applicant, any victim, any child referred to in these reasons or any relative of the applicant referred to in these reasons is prohibited.

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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

Amendments

01 February 2018 - It is noted that a document of the respondent in evidence erroneously stated the date of the assault as 9 June 2009 that error resulted in errors in various paragraphs of the reasons.

Amended paragraph 3, 31, 37, 43, 55, 60, 110, 166, 171, 81, 87, 88, 102, 103, 106, 108

Decision last updated: 01 February 2018

Medium Neutral Citation:	DAJ v Children’s Guardian [2017] NSWCATAD 299
Hearing dates:	28 August 2017
Date of orders:	13 October 2017
Decision date:	13 October 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Mullane ADCJ, Principal Member R Royer, General Member
Decision:	(1) The decision of the Children’s Guardian of 5 June 2014 refusing the applicant a Working With Children Check Clearance is affirmed. (2) Publication or broadcast without the leave of the Tribunal of any name or other identifying information of the applicant, any victim, any child referred to in these reasons or any relative of the applicant referred to in these reasons is prohibited.
Catchwords:	Child Protection - Working with Children Clearance-issues of mental health, alcohol abuse, abusive behaviour.
Legislation Cited:	Child Protection (Working With Children) Act 2012; Adoption Act, 2000; Child Protection (Prohibited Employment) Act, 1998; Administrative Decisions Review Act 1997
Cases Cited:	Commission For Children and Young People -v- V [2002] NSWSC 949;
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DAJ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Douglas-Baker (Respondent) DAJ (Applicant in person) Solicitors: NSW Crown Solicitors Office (Respondent)
File Number(s):	2017/00101008
Publication restriction:	See above orders.