DDE v Children's Guardian

[2019] NSWCATAD 123

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	DDE v Children’s Guardian [2019] NSWCATAD 123
Hearing dates:	25 February 2019, 13 May 2019
Date of orders:	18 June 2019
Decision date:	18 June 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member L Houlahan, Senior Member
Decision:	The decision of the respondent to cancel the applicant’s working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Child Protection – Working with children – Where Children’s Guardian cancelled the applicant’s working with children check clearance – Where applicant had a lengthy criminal history – Where there was no evidence that applicant had ever harmed a child - Whether applicant had overcome alcohol use disorder – Whether the applicant poses a real and appreciable risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Crimes Act 1900 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Children’s Guardian v BRL [2016] NSWSC 1206 DFL v Children’s Guardian [2018] NSWCATAD 121 DMF v Children’s Guardian [2019] NSWCATAD 2
Category:	Principal judgment
Parties:	DDE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: J Peluso (Applicant, for first day of hearing), Applicant thereafter self-represented A Douglas-Baker (Respondent)   Solicitors: Crown Solicitor (Respondent)
File Number(s):	2017/00188151
Publication restriction:	Pursuant to subsection 64(1) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of the any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the Tribunal.

REASONS FOR DECISION

1. The Children’s Guardian cancelled the applicant’s working with children check clearance after he was charged with using an offensive weapon to commit an indictable offence and with wounding with intent to cause grievous bodily harm. The Children’s Guardian was satisfied that he was a risk to the safety of children, primarily due to his long history of violent behaviour.

2. The applicant was a heroin addict from the age of about fourteen until the age of about twenty-one then episodically binged on alcohol for many years. Between 1996 (when the applicant was about fifteen) and 2012 (when he was 31), the applicant committed a number of offences, including stealing cars, break and enter, common assault, affray, drink driving and drug possession. He was also charged with a significant number of other offences. Many of his offences were drug or alcohol-related.

3. The applicant’s case was that he did not pose a risk to children’s safety, because none of his offences had involved children and because he had not drunk to excess since 2014. He gave sworn evidence that his narcotics addiction and alcohol dependency were “the cause of all [his] previous offending.” He said that he had addressed his drug and alcohol abuse and the underlying mental health issues which led to the substance abuse. The applicant said that, through counselling and medication, he had successfully dealt with his depression and anxiety and he was no longer violent.

4. The applicant’s evidence was inconsistent with some of the documentary material before the Tribunal. He was charged with assaulting his brother a week before the final day of the hearing. There was also documentary evidence indicating that he was intoxicated on several occasions in 2016, and again at the end of 2018. We found this evidence persuasive, and rejected his evidence that he has not drunk to excess since 2014, and that he did not behave violently in May of this year.

5. We are satisfied that the applicant poses a real and appreciable risk to the safety of children. This is because there is a real risk that he will become intoxicated and behave violently again, and a real risk that children may be exposed to such violence. Accordingly, we have decided to affirm the decision of the Children’s Guardian to cancel his working with children check clearance.

Incident leading to cancellation of applicant’s clearance

6. The Children’s Guardian conducted a risk assessment of the applicant after becoming aware that he had been charged with using an offensive weapon to commit an indictable offence and with wounding with intent to cause grievous bodily harm. The incident giving rise to the charges occurred in September 2016.

7. The updated police facts sheet provides the following account of the incident.

8. The applicant’s neighbour, who lived across the road from the applicant (“the Neighbour”), was renovating his home. On the night of 24 September 2016, he and his friend (“the Neighbour’s Friend”), arrived at the Neighbour’s home in the Neighbour’s Friend’s car with music playing loudly. They left the music playing in the car.

9. At about 10.30pm, the applicant came out of his house and yelled at the Neighbour and his friend to turn down the music. The Neighbour’s Friend turned down the volume a little and the applicant went back inside his house.

10. Shortly after this, the applicant exited his premises again and approached the Neighbour and his friend yelling at them to turn the music off. The Neighbour replied, “Why would I turn it off? It’s 10:15 at night.”

11. The applicant went back inside then came out again and again yelled at the Neighbour and his friend to turn the music off. The Neighbour replied, “Why would I turn it off?”

12. The applicant walked up to the Neighbour and pushed him to his chest. The Neighbour then pushed the applicant to his chest. The applicant unsuccessfully attempted to punch the Neighbour, who then punched the applicant to the right side of his head.

13. The Neighbour’s Friend pushed the applicant away from the Neighbour, causing him to stumble backwards. The applicant then punched the Neighbour.

14. The applicant’s de facto wife (who we will refer to throughout these reasons as his wife) was standing at the door. The applicant called out to her, “Bring me my sword!” When she did not comply, the applicant ran back into his house. The Neighbour and his friend began to leave.

15. The applicant came out carrying a sword about 60cm to 70cm in length. He held it at a 45 degree angle.

16. The Neighbour was carrying a bucket containing dirty water and cement which he intended to throw at the applicant.

17. The applicant approached the Neighbour and attempted to strike him with the blade of his sword. The Neighbour raised the bucket in an attempt to throw the dirty water and cement at the applicant’s face. The blade bounced off the bucket and struck the Neighbour’s right cheek causing a laceration which ran from his right ear to his right nostril. The Neighbour fell to the ground.

18. The applicant then approached the Neighbour’s Friend who grabbed hold of a hammer from the car. The applicant continued to approach the Neighbour’s Friend, whilst waving his sword blade from left to right. The Neighbour’s Friend struck at the sword blade with the hammer. Eventually, the applicant returned to his residence.

19. The Neighbour was later taken to hospital and received twelve stitches.

20. The Neighbour and his friend provided signed statements which were consistent with the police facts.

21. The applicant denied that the events transpired in the way described by the police and by the Neighbour and his friend. He said he had only gone inside to get the sword after the Neighbour’s Friend had threatened him with a hammer. He told the Tribunal that he got the sword to scare off the Neighbour and his friend and never intended to strike either of them with it. He maintained that his use of the sword was in self-defence and in defence of his wife. His wife was 36 weeks pregnant at the time.

22. The applicant pleaded not guilty to the charges of wound with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 and using an offensive weapon with intent to commit an indictable offence under s 33B(1)(a) of the Crimes Act.

23. On 20 June 2017, the Children’s Guardian cancelled the applicant’s working with children check clearance pursuant to s 23(1) of the Child Protection (Working with Children) Act 2012. The Children’s Guardian was satisfied that the applicant posed a risk to the safety of children, commenting that his engagement in acts of violence was persistent and that he was unable to manage his aggressive and dangerous behaviour in public places.

24. The applicant applied to the Tribunal for an administrative review of that decision under the Administrative Decisions Review Act 1997, pursuant to s 27(2) of the Child Protection (Working with Children) Act.

25. At the applicant’s trial in July 2018, the Neighbour was called as a witness for the prosecution. He repeatedly said “I can’t remember” in response to questions about what happened on the relevant night. The Crown Prosecutor accepted that the Neighbour’s Friend would not be able to give better evidence. After a short adjournment, the Crown Prosecutor informed the Court that the Director of Public Prosecutions had directed that there be no further proceedings in relation to the counts in the indictment.

Evidence and hearing

26. The Children’s Guardian placed thousands of pages of documentary material before the Tribunal, much of it obtained through use of the Children’s Guardian’s statutory powers to require the production of information.

27. The material relied upon by the Children’s Guardian included the Children’s Guardian’s file notes and decision notices, material provided to the Children’s Guardian by the applicant, police and court records relating to the applicant’s criminal history, apprehended violence order history reports, the applicant’s medical records, transcripts of court proceedings involving the applicant including sentencing proceedings, transcripts of the applicant’s mobile telephone text messages from 2015 and 2016 (generated after his mobile telephone was confiscated by police), the applicant’s criminal history report, Family and Community Services documents about the applicant, information about the applicant provided by Corrective Services and information obtained from the applicant’s psychologist.

28. The applicant’s evidence included statutory declarations made by him in January 2017 and January 2019, a witness statement made by his wife in October 2016, reports by Mr Tim Watson-Munro, consultant forensic psychologist, a report by Mr Carlos Camacho, his treating psychologist, some character references, confirmation of his attendance for psychological services on a number of occasions, a letter from Dr Rajneesh Singh, consultant psychiatrist, to the applicant’s general practitioner, some emails concerning volunteering opportunities, the applicant’s Medicare claims history, records of donations made to a charity supporting children in Cambodia and emails with that charity, a receipt for the “Drug and Alcohol Guide for Youth” and photographs of an orphanage he visited in Cambodia.

29. The Tribunal held a hearing in February this year at which the applicant and his wife, Mr Camacho and Mr Watson-Munro all gave oral evidence and were all cross-examined. Mr Peluso of counsel appeared for the applicant and Ms Douglas-Baker of counsel appeared for the Children’s Guardian.

30. At the commencement of his oral evidence, the applicant informed the Tribunal that, on 18 December 2018, he had suffered an injury when cleaning the gutters for his mother. He said he had fallen through the Colorbond roof, landed on his head and suffered a brain injury and a shattered collarbone.

31. The applicant gave evidence at the hearing that he had stopped drinking to excess in 2014, but that he still had the occasional glass of wine. This was slightly different from the evidence given in his statutory declaration of January 2017, where the applicant stated that “since 2013 I rarely drink and never binge.” However, it was consistent with Mr Watson-Munro’s report that the applicant had told him that alcohol had not been problematic for him since 2014.

32. The applicant told the Tribunal that he did not have anger issues any more, as his earlier anger issues were part of his alcohol problem. He said that now the alcohol issue was under control, there was no longer a problem.

33. The applicant’s counsel, Mr Peluso, submitted at the end of the hearing that the applicant’s current level of drinking was very modest indeed, that he was able to overcome difficulties of addiction and that he had rehabilitated himself.

34. Following the hearing, the Tribunal reviewed the transcripts of the applicant’s mobile telephone messages in 2015 and 2016, created by police after his arrest, and formed the view that it could be inferred from these records that he had been drinking to excess at that time. The applicant had not been asked any questions about his mobile telephone messages at the hearing. At the Tribunal’s request, the Registrar wrote to the parties, setting the matter down for another day of hearing to give the applicant an opportunity to address the Tribunal’s concerns about the text messages. The applicant was invited to provide further evidence in relation to the text messages, but did not provide any further documentary material prior to the second day of hearing.

35. A further hearing was held on 13 May 2019. Mr Peluso appeared at the beginning of the hearing as a courtesy to inform the Tribunal that the applicant had withdrawn instructions for him to act in the matter.

36. Both parties informed the Tribunal of events which had occurred since the first day of hearing.

37. Ms Douglas-Baker, for the Children’s Guardian, informed the Tribunal that the applicant had been charged with common assault in relation to an alleged assault upon his brother on 6 May 2019. She tendered the police narrative regarding the alleged assault and the applicant’s updated apprehended violence order history and updated criminal history report. These were admitted into evidence.

38. The applicant told the Tribunal that he had put his arm through a glass door about three weeks beforehand, cutting nerves and veins. He said that his right hand was left 90% paralysed. He said he could not carry much weight because the bones were not yet joined.

39. The applicant tendered some medical evidence, some more police documents in respect of the alleged assault on 6 May 2019, a print-out of undated text messages which he said was a recent exchange between him and his brother and a statement by the applicant’s brother about the events of 6 May 2019, confusingly dated “10/06/2019” (a date in the future). It seems likely that the applicant’s brother inadvertently substituted a “6” for a “5” and the statement should have been dated 10 May 2019.

40. The applicant gave some further oral evidence and was again cross examined.

41. The Children’s Guardian provided the Tribunal with a letter from the Crown Solicitor to Mr Peluso, asking that the applicant make his wife available for cross examination at the further hearing. The applicant claimed not to know about this letter and did not make his wife available for questioning on the second day of the hearing.

Tribunal’s task

42. The Tribunal’s task is to determine whether the applicant poses a risk to the safety of children and whether the decision of the Children’s Guardian to cancel his clearance is the correct and preferable decision (see Child Protection (Working with Children) Act, s 23(1); Administrative Decisions Review Act, s 63). A “risk to the safety of children” means “a real and appreciable risk to the safety of children” (Child Protection (Working with Children) Act, s 5B).

43. In determining whether the applicant poses a risk to the safety of children, the Tribunal is required to have regard to the factors set out in s 30(1) of the Child Protection (Working with Children) Act. If, having considered these factors, the Tribunal is not satisfied that he poses a risk to the safety of children, it must be satisfied of the matters in s 30(1A) before making an order enabling the applicant to work with children.

Factors relevant to risk

44. In determining whether the applicant poses a risk to the safety of children, we have considered each of the matters in s 30(1) of the Child Protection (Working with Children) Act, and have had regard to the circumstance that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of that Act (see s 4).

Matters which are not applicable

45. Certain considerations which are set out in s 30(1) of the Child Protection (Working with Children) Act are not applicable.

46. As far as the material before the Tribunal indicates, no relevant information in relation to the applicant was obtained in accordance with s 36A of the Child Protection (Working with Children) Act (see s 30(1)(j1)). There is no order of a court or tribunal that is in force in relation to the applicant (s 30(1)(i1)) and none of the applicant’s victims were children (see s 30(1)(f)).

The seriousness of the applicant’s offences and criminal history and any matters that caused a refusal of a clearance (s 30(1)(a) and (h)), his age at the time (s 30(1)(c)), his present age (s 30(1)(g)) and the period of time since those offences or matters occurred (s 30(1)(b))

47. The applicant is now aged 38. His criminal history is serious and commences when he was fifteen. A person’s criminal history includes convictions and charges, even if those charges have been withdrawn or dismissed (Child Protection (Working with Children) Act, s 5C).

48. About 23 years have passed since the applicant’s first conviction, and nearly seven years since the commission of the last offence of which he has been convicted. His most recent charge relates to events in May this year.

49. The applicant’s criminal history is as follows.

50. In 1996, when the applicant was about fifteen, he stole a motor vehicle and was given a good behaviour bond of six months. That was about twenty-three years ago.

51. In 1998, when the applicant was seventeen, he was convicted of possession of unlawful drugs (heroin) and possession of a prohibited weapon (a flick knife) and fined $100 in respect of each offence.

52. In 1999, when the applicant was eighteen, he was convicted of break and enter a building with intent to commit a felony, possession of car breaking implements and steal a motor vehicle. He received twelve months’ periodic detention and was ordered to complete 200 hours of community service.

53. Later the same year, he was convicted of possessing a prohibited drug and fined $400. He was also charged with bringing cannabis into a detention centre, but it appears this charge was either withdrawn or dismissed.

54. In September 2000, when the applicant was twenty, he was convicted of bringing 1.1 grams of heroin into a detention centre and received a two-year good behaviour bond. In December 2000, the applicant was fined $100 for unlawfully possessing a prescribed restricted substance (two tablets of Serapax).

55. In May 2001, at the age of 21, the applicant was convicted of driving with high range prescribed concentration of alcohol and driving whilst licence suspended. He was fined $500 and $350 respectively.

56. In October 2005, when the applicant was 24, he was charged with destroy or damage property, common assault and assault occasioning actual bodily harm. The charges related to the applicant allegedly spitting in the victim’s face and punching him at a pub in the early hours of the morning. The charges were withdrawn and dismissed.

57. In October 2007, at age 26, the applicant was charged with one count of affray. The circumstances related to his alleged involvement in an affray in front of a nightclub. The charge was dismissed.

58. In December 2007, whilst on bail for the affray charge, the applicant was charged with assaulting a police officer while in the execution of duty; affray; behaving in an offensive manner in a public place; and resist/hinder police. He was 26 at the time.

47. The charges related to an altercation involving a group of men outside a nightclub. The applicant pleaded guilty to the last of these two charges and the first two were withdrawn. He was given a bond of 12 months in respect of the charge of behaving in an offensive manner and a fine of $1,000 in respect of the resist/hinder police charge.

48. In May 2010, when aged 29, the applicant was charged with destroy/damage property, but the charges were withdrawn. The circumstances involved the applicant and two other persons eating McDonalds food in a taxi, then leaving it strewn across the back when they exited the taxi. The taxi driver found that, after the applicant and his companions left, the front passenger and driver’s headrests were missing and there was spit on the dashboard where the applicant had been sitting.

49. In October 2011, when aged 30, the applicant was charged with assault occasioning actual bodily harm and common assault. He pleaded guilty to common assault and was convicted of that offence. He was fined $800 and an 18-month good behaviour bond was imposed on him.

50. The circumstances of the offence were that the applicant was at a casino, gambling, with some friends. A security officer asked him and his friends to leave because they were intoxicated. The applicant picked up his gambling chips and a bottle of water, then threw the gambling chips on the floor and swung the plastic bottle towards the security officer’s face. Further security officers arrived, including the security supervisor. As the applicant was being escorted out of the casino with his male companions, the applicant turned and swung a punch towards the security supervisor, which connected with his face. A wrist lock was then applied to the applicant’s hands. The applicant then head-butted the first security officer twice. This caused a three centimetre laceration to the security officer’s right eyebrow, which bled profusely.

51. In December 2011, the applicant committed an offence of driving whilst intoxicated (mid-range prescribed concentration of alcohol). The applicant was ordered to undertake 150 hours of community service, he was disqualified from driving for a period of three years and an alcohol interlock program was imposed.

52. In 2012, when aged 31, the applicant was charged with affray; possession of a pistol without a licence or permit; possession of ammunition without a licence or permit; possession of a prohibited drug; and two counts of not keep a firearm safely.

53. The circumstances of the affray charge were that the applicant was at a hotel in the early hours of a morning, having consumed a number of bourbons. He was intoxicated. A man (unknown to the applicant) touched his upper leg or buttock. The applicant then smashed a glass across the side of a victim’s face. The victim was conveyed to hospital. He sustained multiple lacerations on the right cheek and nose and an injury to a nerve. It was thought that the victim might have permanent numbness to part of his right cheek. The pre-sentence report states that the applicant remembered becoming very angry when the man touched him.

54. The police arrested the applicant at his home and, later that night, executed a search warrant at his home. They found two semi-automatic pistols and ammunition and heroin in a wardrobe.

55. The materials before the Tribunal include a statement by a police officer in which the officer stated that one of the pistols had two 9mm rounds in the magazine. The police officer also stated that there were also a few shotgun rounds on the bed and on the bedside table.

56. The applicant gave evidence that he was minding the pistols and ammunition for a friend and that a friend had placed the drugs in a jacket the applicant had lent him. He did not name the friend.

57. The applicant pleaded guilty to the charges of affray and possession of one of the unauthorised firearms, and each of the other firearms offences was taken into account on a Form 1. The applicant was sentenced to two years’ imprisonment with a non-parole period of 12 months in respect of the charge of possession of an unauthorised firearm and to two years, three months’ imprisonment with a non-parole period of 14 months for the charge of affray.

58. As indicated above, the applicant was charged with using an offensive weapon with intent to commit an indictable offence and wounding with intent to cause grievous bodily harm in relation to the incident in September 2016 involving the sword (Crimes Act, ss 33B(1)(a) and 33(1)(a)). The applicant was 35 at the time. The first of these offences is punishable by up to 12 years’ imprisonment and the second is punishable by up to 25 years’ imprisonment.

59. The charges were dismissed.

60. In May 2019, the applicant was charged with common assault under s 61 of the Crimes Act. The offence carries a maximum penalty of two years’ imprisonment.

61. At the time of the offence, the applicant, the applicant’s brother and his wife all lived with the applicant’s mother. The applicant’s brother and his wife were in the process of moving into new premises. The police facts state that, at about 4.45pm on 6 May 2016, the police attended the applicant’s mother’s house, after receiving a call from a third party. The applicant’s brother told police that he was packing his belongings inside the house when his wife and the applicant engaged in a heated verbal argument. The applicant’s brother stepped in between the two. The applicant threw several punches aimed at his brother’s wife, but they connected with his brother’s head. The applicant’s brother and his wife left the house through the back door and ran to a nearby neighbour where they contacted the police.

62. Following the incident, according to the police, the police arrived at the applicant’s mother’s house and found the applicant’s brother and his wife outside. The police observed the applicant’s brother to have two cuts to his right hand and red markings to his forehead. The police also observed damage to the windshield of the applicant’s brother’s car, consisting of shattered glass over the dashboard and on the front passenger seat. The applicant’s brother stated to police that the damage was not present prior to the incident, but neither he nor his wife knew how it occurred.

63. The applicant gave evidence that he did not know how the damage occurred. The applicant also denied that he had assaulted his brother.

64. The police successfully applied for a provisional apprehended domestic violence order against the applicant.

65. We consider that the applicant’s criminal history is serious, both in respect of a number of the individual offences, but also taken cumulatively. It includes a number of convictions for offences punishable by a maximum imprisonment of a number of years, such as affray (10 years, Crimes Act, s 93C), drug possession (2 years, Drug Misuse and Trafficking Act 1985, ss 10 and 21) and break and enter and commit serious indictable offence (currently 12 years, Crimes Act, s 112(1)). These are all serious offences. The applicant’s criminal history also includes charges for serious offences such as wounding with intent to cause grievous bodily harm.

66. Some of the offences occurred whilst the applicant was a child and so are less relevant to the assessment of any risk he poses to the safety of children today. However, the offence of affray in 2012 demonstrates that he was behaving violently in the relatively recent past, at the age of 31. The 2016 charges also indicate that he behaved violently at that time, although the circumstances of that incident, which we consider later in these reasons, are relevant to the question of the risk he poses to children’s safety. For reasons given below, we consider that the account of the 2019 incident, given by the applicant’s brother to the police, is most likely to be accurate. That charge indicates (at least) that there is a possibility that the applicant was behaving violently only a week before the last day of hearing.

67. The applicant’s criminal conduct commenced as a teenager and, whilst his last conviction was seven years ago, the subsequent charges provide some evidence that his violent conduct has continued to the present day.

68. The seriousness of the applicant’s offences and his lengthy criminal history are significant indicators that he may pose a risk to the safety of children.

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 (s 30(1)(d)); the difference in age between the victim and the applicant and the relationship (if any) between the victim and the applicant (s 30(1)(e))

81. The victims of the applicant’s offences were adults, most of whom were unknown to him. None of his victims were children and none appear to have any particular vulnerability. The difference in the applicant’s age and those of the victims is not significant.

Any information given by the applicant in, or in relation to, the application (s 30(1)(j))

82. The applicant gave a significant amount of information in relation to his application, both in documentary form and in the form of his oral evidence and his counsel’s oral submissions. We have dealt with this below, under headings relating to particular topics.

References and experience with children

83. The applicant has provided a number of references to the Tribunal given by people who have seen him work with children or in a child-related area.

84. The applicant worked as a casual assistant childcare worker and administrator in a child care centre from 1996 to 2016 (although not continuously). His employer (who is also his mother) stated that, during that time, he gained trust and respect from parents and staff members.

85. The applicant worked in a fitness academy in 2016 assisting the head Thai/kickboxing trainer with training children between the ages of four and twelve. His employer stated that the applicant had great patience with the children and was loved by everyone at the gym including both the children and their parents. A parent of a child attending the Thai/ kickboxing described him as being “wonderful with the kids”; and another parent said that “at no time did I feel that anyone under his tuition was in danger and he has never acted inappropriately towards children.”

86. The applicant also volunteered at a gym from 2007 to 2016 assisting in Thai kickboxing training with youths.

87. The applicant has provided a reference from a family friend, who managed and operated four early childhood services, and stated that she had full and absolute confidence in the applicant’s “ability and conviction in providing my own children and grandchildren with safety in his care.”

88. The applicant’s unchallenged evidence, which we accept, is that he was never subject to any complaint, disciplinary proceedings or risk assessments in his employment or volunteering activities.

89. The applicant’s wife (from whom he has been separated since September 2018) described the applicant as a great father, who was very loving towards his two children. She also said he was great with his nieces and nephews (aged between five and ten) who stayed over regularly.

90. The applicant’s wife gave evidence that she and the applicant sponsored a child at a Cambodian orphanage and had visited the orphanage together.

91. There is no evidence that the applicant has ever harmed a child. There is, on the contrary, evidence that he relates well to his own children, to children in his broader family and to the children he has worked or volunteered with. This tends to suggest that he does not pose a risk to the safety of children.

2016 charges

92. The applicant and his wife both gave evidence about the circumstances of the 2016 charges.

93. Their account of the incident was different from that in the police facts, but it was not seriously challenged in cross examination.

94. The account given by the applicant and his wife differs from the police facts in the following ways.

95. Both the applicant and his wife gave evidence that the applicant decided to ask the men to turn the music down after his six-year-old son called out that he was unable to sleep because of the noise.

96. Both depict the Neighbour as aggressive and the applicant as (initially at least) polite. The applicant’s wife gave evidence that the Neighbour pushed the applicant first, then she saw both men punching and kicking the applicant.

97. Another key difference in the account given by the applicant and his wife is that they both say that the applicant went inside to get the sword after the Neighbour’s Friend had obtained a hammer from his car and was swinging it in the applicant’s direction and that of his wife. The sword was part of a collection of ornamental samurai swords which was close to the front door. They both report that, at this time, the applicant’s wife (who was 36 weeks pregnant) had picked up a small wooden chair which was on the front porch and was trying to hit the Neighbour and his friend with it. The applicant’s evidence is that he went inside to get the sword to protect himself and his wife from the Neighbour’s Friend’s attack.

98. The applicant stated that he swung the sword to deflect the bucket which was thrown at him and did not realize that the sword had hit the Neighbour. He had not intended to strike the Neighbour. He was acting in self-defence and defence of his wife.

99. The applicant was asked about the event in cross examination. He denied that he had the choice to go inside and avoid the conflict, because he said that the Neighbour’s Friend was swinging a hammer at his head and he had yelled at his wife to go inside but she did not. When asked in re-examination whether he could have handled the incident in a different way, the applicant said he did not think so. When his counsel then asked him how he would deal with it now, he said he would not go back out. We understood him to mean that he would not have gone out a second time to tell the Neighbour and his friend to turn down the music.

100. The Children’s Guardian did not attempt to call the Neighbour or the Neighbour’s Friend to give evidence. As already indicated, the Neighbour gave evidence at the trial that he could not recall the relevant events, and the Neighbour’s Friend was not called at the trial to give evidence. This is similar to the situation described by Fagan J in Children’s Guardian v BRL [2016] NSWSC 1206, where the Children’s Guardian sought to rely upon records of interviews with persons in relation to the charges that constituted the risk assessment triggers, but did not seek to call those persons. The Tribunal admitted the statements, but not as evidence of the truth of the allegations contained therein.

101. Fagan J commented (at [24]) that it would have been open to the Tribunal to take the statements as evidence of the facts asserted in them but this would be subject to consideration of how much weight should be attached in circumstances where they were not tested.  His Honour also observed (at [30]):

“If the Tribunal were to limit itself to determining no more than whether there was a real risk that the offences had occurred, as opposed to making a finding whether in fact they did occur the four statements, treated as evidence only of the fact that the allegations were made, would be of some relevance. Received on that basis the statements could be looked at for internal consistency, consistency between the respective makers of the statements, inherent probability or otherwise, agreement with objectively proved surrounding facts and so on. Examination of the evidence of allegations on that basis would be a foundation for the Tribunal to decide whether there was a risk that the allegations were true. It would be a weak basis for an affirmative conclusion without explanation of the complainant’s refusal to testify in 1999 and of the Children’s Guardian’s failure to call her in 2015 or 2016.”

102. We have decided that the statements of the Neighbour and his friend, which form the basis of the updated police facts, would be a “weak basis” on which to find that the applicant had conducted himself as alleged by the police, without any explanation of the Neighbour’s claimed memory loss at the hearing or of the Children’s Guardian’s failure to call them as witnesses in these proceedings. We have accordingly accepted that the events transpired in the way described by the applicant and his wife.

103. We accept the submission of the Children’s Guardian that the applicant’s response to the loud music, and to the conduct of the Neighbour and his friend, was excessive and disproportionate. We also accept the Ms Douglas-Baker’s submission that the applicant had opportunities to avoid the matter escalating of which he did not avail himself. He could have gone inside and remained inside after asking the Neighbour and his friend to turn the music down. Once his wife was outside, going back inside to get the weapon was both risky and inflammatory. It involved leaving his wife unaided whilst being attacked by two men, one of whom was wielding a hammer. It also risked escalating the violence. Persisting in his attempts to get his wife into the house would have been a better strategy to limit any further violence and to protect her.

104. Despite Mr Camacho’s evidence that he had talked over the incident with the applicant and that the applicant had insight into it, the applicant displayed little insight when asked about it at the hearing. He twice denied that he could have gone inside and only at the very end of his evidence indicated that he could have acted differently by not going back outside when the Neighbour and his friend failed to turn the music down. This showed a lack of understanding of the multiple opportunities he had to avoid or to minimise the conflict, including by retreating before the Neighbour first punched him or immediately afterwards.

Treatment for psychological issues

105. One of the factors the applicant relied upon as diminishing his risk to children was that he was now effectively treating his anxiety and depression, which had previously contributed to his offending.

106. The applicant’s evidence was that his alcohol abuse, up until 2013 or 2014, was related to untreated conditions of anxiety and depression. He said he got help for those mental health issues in 2012. He got his medication correct about five years ago and started to see counsellors. The applicant told the psychologist, Mr Watson-Munro, that there was a direct nexus between his prior substance misuse issues and his criminal history.

107. Mr Watson-Munro expressed the opinion that the combination of medication which the applicant commenced taking in 2014 was “highly successful in terms of stabilizing his mood.” His testing of the applicant in August or September 2017 failed to reveal any evidence of a depressive disorder or anxiety disorder. Mr Watson-Munro’s view was that the applicant had been successfully treated in the community. Mr Watson-Munro also observed that the applicant and his wife were in “a loving and well-bonded relationship” and that his wife’s support was a “major stabilising influence in his life.”

108. In a supplementary report, dated 7 November 2018, Mr Watson-Munro confirmed his earlier opinion and expressed the view that the applicant’s mood state, if anything, had significantly improved.

109. When cross-examined on the first day of the hearing, Mr Watson-Munro agreed that the police facts, in relation to the September 2016 incident, raised the question of the applicant’s capacity to control his anger. However, he did not consider the applicant to pose a threat to children.

110. The opinion of the applicant’s treating psychologist, Mr Camacho, expressed in his report of February 2017, is that the applicant did not presently display symptoms of anxiety or depression and did not require ongoing psychological treatment.

111. At the hearing in February this year, Mr Camacho expressed the view that, having treated the applicant for some time, he had progressed well and that he continued to be stable. Mr Camacho considered that the applicant’s medication was working well. He was also of the view that the applicant showed insight into his actions of September 2016.

105. Some time before the hearing, the applicant had told Mr Camacho that he and his wife were separated for a trial period (which commenced in September 2018). When asked by Ms Douglas-Baker whether the period of separation from his wife could undermine the applicant’s stability, Mr Camacho responded by saying that this was something which would need to be revisited if the separation became permanent. He also said that, if the separation was out of the applicant’s hands and affected his happiness, it probably would undermine his stability.

106. We find that the applicant has sought treatment for his depression and anxiety and that this has been largely successful. We note that the applicant remained separated from his wife at the hearing in May and there was no indication that they had any plans to reunite. The applicant has the support of his mother. However, we still consider that the applicant’s separation from his wife is something which may affect his stability going forward.

Cessation of excessive drinking

114. The applicant’s case was that he was no longer drinking excessively, thus significantly diminishing any risk he posed to the safety of children. As indicated above, the applicant made a statutory declaration stating that he had not drunk alcohol to excess since 2013, a date which he changed in his sworn oral evidence to 2014.

115. It is helpful to review the evidence about his alcohol abuse and the steps he has taken to manage it.

116. On 22 January 2013, Ann-Marie De Santa Brigida, psychologist, provided a report about the applicant for the purposes of the applicant’s trial in relation to the 2012 offences (including “glassing” a man in a pub, drug possession and possessing firearms without a licence). The applicant told Ms De Santa Brigida that he started consuming alcohol regularly around the age of twenty. He stated that he might only drink once per week, but that this entailed an alcohol binge which might continue for three to four days and he drank to the point of amnesia. She scored him in the High Risk Category of the World Health Organisations’ Alcohol Use Disorders Identification Test. Ms De Santa Brigida reported that the applicant had admitted that he resorted to substance and alcohol abuse as a way of self-medicating for his depression.

117. Ms De Santa Brigida proposed a treatment plan which included an in-patient rehabilitation program to address the applicant’s long-standing alcohol and drug issues. She recommended a 10-month in-patient program to result in lasting change. She also recommended that, after discharge from rehabilitation, the applicant required a period of psychological intervention.

118. The applicant’s probation and parole service pre-sentence report, dated 11 February 2013, states that the applicant had advised that he began consuming alcohol when 18 years of age, with his use escalating to the stage where, before entering custody, he was drinking excessively, two to three times per week until intoxicated.

119. The sentencing judge stated, when sentencing the applicant on 11 February 2013, that the applicant had said that the seven and a half months he had just spent in custody was the longest period during which he had abstained from drugs and alcohol.

120. In May 2014, the applicant told his psychiatrist, Dr Anthony D’Souza, that he started daily use of alcohol after giving up heroin and methodone. He said that he had peaked from half a bottle of vodka per day to a binge pattern of 20-30 standards of alcohol on each occasion. The applicant also told Dr D’Souza that he had relapse of alcohol after one month of release from prison and had used alcohol one month ago.

121. The applicant said he had not completed an in-patient rehabilitation program to address his alcohol addiction, but “took the idea on board.” He gave evidence that he had engaged in counselling and seen a psychiatrist to get his medication for depression correct, and that this put him in a totally different position than he was in when he was abusing drugs and alcohol. As a result, he did not feel that he needed to take on an in-house program. He said that he took a different path to get to the same place.

122. The applicant’s evidence about his ability to control his drinking was of significance, because it supported his claim that he was no longer likely to commit violent offences. Most of his offences were associated with excessive consumption of alcohol, and his evidence was that this had stopped four to five years ago.

123. The applicant’s wife’s oral evidence, when asked on the first day of the hearing whether the applicant had a drinking problem, was that he did “more so at the beginning.” She said his drinking was now a lot better.

124. Following the first day of hearing, the Tribunal reviewed a transcript of text messages from 2015 and 2016 sent and received on the applicant’s mobile telephone. The transcript often included text messages from his wife but not his replies. The transcript included the following messages:

1. 30 May 2016 (from his wife): “you took off last night, drank and ignored my calls”;

2. 30 May 2016 (from his wife): “I cannot stand when you drink to that point when you slur your speech and you have this look about you. I love spending time with you when you don’t drink, that’s the person I want to be with. When you drink I honestly can’t stand you”;

3. 30 May 2016 (from his wife): “After years and years of seeing you drunk it’s scarred me… So use your brains and work it out that it’s your drinking that’s the issue and not ME! I don’t care what you do now, cause you do as you please anyways. Your old habits are slowing [sic] coming back”

4. 31 May 2016 (from his wife): “Can’t you see your drinking is the cause of most of our problems? It all stems from your drinking.”

5. 29 June 2016 (from his wife): “Please don’t drink too much ok. It stuffs you up the next day”;

6. 29 June 2016 (from his wife): “You promised me last night you wouldn’t drink too much”;

7. 29 June 2016 (from his wife): “Once you drink you forget I exist”;

8. 4 July 2016 at 3:18am (from the applicant to his wife): “Answer the phone”;

9. 4 July 2016 (from his wife): “When you are sober and ready to talk, we will then”;

10. 4 July 2016 (from his wife): “you need to stop drinking and going down this destructive path”;

11. 8 July 2016 (from a friend): “Hey there’s no shame in rehab. … if I could I’d go tomorrow to get all the past crap of my system! If it’s too much for you to battle alone it might just be your saviour so it’s dealt with and put to rest for good”;

12. 11 July 2016 at 12:45am (from his wife): “I’m serious ok. I don’t need you to abuse me when you get home. You scare me and [our child]!!”

13. 11 July 2016 (from his wife): “You really need to stop drinking babe. It worries me”;

14. 17 July 2016 (from his wife): “If you want to keep going out and drinking and doing god knows what go for it.”

15. 17 July 2016 (from his wife): “It’s only like this because you have been doing your own thing for the past 3 weeks and all you do is drink and gamble and who knows what”;

16. 5 August 2016 (from his wife): “You need to get your act together and stop drinking”;

17. 1 September 2016 (from his wife): “I don’t get why you drink to the point where you sleep for hours and half the next day”;

18. 12 September 2016 (from his wife): “I’m pregnant and need you with me. I hope you don’t go drinking and gambling. Come home soon ok.”

19. 13 September 2016 (from his wife): “[our child], the baby and I need you babe. We love you. Stop drinking please.”

125. After initially denying that his binge drinking continued after 2014, the applicant conceded on the second day of hearing that he may have got drunk “once or twice” in 2016 and referred to going to friends’ parties at which this might have occurred. He said that the text messages from his wife reflected her assumption that he was going to drink if he left the house, but that he may not in fact have been drinking. The applicant said that the friend’s reference to “rehab” was to a mental health retreat type place he had driven past, and did not relate to alcohol.

126. The Tribunal infers from the text messages that the applicant was drinking heavily on occasions, in 2016. The Tribunal considers that the applicant’s wife is unlikely to have sent him as many text messages as she did referring to his drinking if excessive drinking was not a problem for him in 2016. We also consider that the applicant’s friend’s reference to “rehab” was most likely to a centre providing rehabilitation services for people with addiction problems. The applicant’s alternative explanation was unconvincing. The use of the word “rehab” and the friend’s reference to him “battling alone” strongly suggest that the applicant’s friend is recommending that he seeks help to deal with his alcohol addiction (and not recommending that he attend a mental health retreat). The applicant’s explanation of what his friend meant by “rehab” is also unlikely given his evidence that he was effectively managing his anxiety and depression by 2016.

127. The applicant’s evidence about his drinking was inconsistent and not credible. It is likely that he was intoxicated in 2014 (contrary to his statutory declaration) as he told Dr D’Souza that he had a relapse in relation to alcohol one month after he had been released from prison. His admission on the second day of hearing that he got drunk once or twice in 2016 was inconsistent with both the statutory declaration and with his sworn oral evidence, given on the first day of hearing, that he had not drunk to excess since 2014.

128. The applicant provided the Tribunal with a hospital report which confirms that he had a fall on 16 December 2018 and was admitted to hospital. However, it provides a different account of what happened from that given by the applicant to the Tribunal. The hospital records state in the patient history that the roof collapsed whilst the applicant was trying to jump off the roof into the pool. The notes record: “Consumed large amount of EtOH today – unsure how much.” The Tribunal understands “EtOH” to mean Ethyl Alcohol.

129. When asked at the hearing to explain the inconsistency between the hospital records and his own account of what occurred, the applicant denied having drunk to excess before falling off the roof and said he could not remember what he told the staff at the hospital about the fall. He said he had been unconscious. He also said that his mother was with him and she might have given information to the hospital staff.

130. The hospital records indicate that the applicant lost consciousness for less than two minutes. We infer from the hospital records that the hospital staff member obtained the information in the report directly from the applicant. For example, the hospital report states “denies prev abdominal surg,” “denies drug use” and “currently complaining of pain to Left shoulder.” The words “unsure how much” in relation to the applicant’s alcohol consumption also indicate that the applicant was unsure how much alcohol he had consumed.

131. The Tribunal prefers the contemporaneous documentary account of what the applicant said about the circumstances of his accident in December 2018, to his present account of it. He had no reason to lie about consuming a large amount of alcohol when he spoke to hospital staff. Either his present memory of events is less reliable than his memory was at the time, or he is providing the Tribunal with a false account which he considers will assist him in these proceedings.

132. Contrary to the applicant’s evidence that he stopped drinking to excess in 2013 or 2014, we find that he had episodes of excessive alcohol consumption in 2016 and was intoxicated on one occasion at the end of 2018.

2019 assault charge

133. The applicant’s evidence is that he did not assault his brother on 6 May 2019. He acknowledged that he was having an argument with his brother’s wife in his brother’s presence on that day. The applicant said that he and his brother bumped into each other as they both tried to get out the back door at the same time. The applicant also says that he would have been incapable of throwing any punches, given the injuries to his arm and shoulder.

134. The applicant has provided a print-out of an exchange of text messages, said to be between himself and his brother. The text messages are undated and there is no information as to the mobile telephone numbers from which they were sent and received. The applicant said at the hearing that they were exchanged on 11 May 2019 (that is, five days after the alleged assault on 5 May 2019).

135. In the text messages, the applicant’s brother wrote: “I love you from the bottom of my heart I just hope you get better and live your life to the full.” The applicant replied: “thank you and I hope you are happy I’m still here for you.” In a subsequent text message, the applicant wrote: “it’s a shame I’ll get probably 1 year so we can talk after that.”

136. The text messages do not establish that the applicant did not assault his brother. The applicant’s expectation that he will be sentenced to imprisonment for one year (even though his brother appears to bear no malice against him) suggests, if anything, some degree of acceptance that the conduct occurred, or that it could be proven.

137. The applicant told the Tribunal that he and his brother had reconciled. He provided to the Tribunal a typed letter apparently signed by his brother in which his brother stated as follows:

“I would like to state that I may have not been struck by my brother [that is, the applicant] but any injuries while where [sic] minor may have been caused by us both trying to get through the same door at the same time while he was arguing with my wife.

It was a little heated and I may have got some facts wrong due to the stress and confusion.

…

My wife and I have spoken about this and believe [the applicant] should not be charged with a criminal offence as this was a domestic matter and not a criminal matter.”

138. The statement of the applicant’s brother as to what occurred on 6 May 2019 does not persuade us that the alleged assault did not occur. The applicant’s brother fails to explain why he told police that he the applicant threw several punches aimed at the applicant’s brother’s wife, which connected with the applicant’s brother’s head. It is improbable that stress and confusion would have caused him to get the “facts wrong” in this way. The use of the words “may have not been struck by my brother” leave open the possibility that the applicant’s brother was struck by the applicant, as he told the police. The expression of a belief that the applicant should not be charged because this was a domestic matter indicates that the reason the applicant’s brother opposes the charges is not because the applicant did not punch him, but because it was a domestic matter.

139. The applicant did not make his brother available at the Tribunal to give oral evidence. Nor did he provide the statement to the Tribunal or the Children’s Guardian in advance of the hearing. This diminishes the weight which we give to his brother’s statement insofar as it tends to prove that the assault did not occur.

140. The medical evidence filed by the applicant does not establish that he was incapable of throwing a punch. It consists of hospital records of his admissions. The police officers’ observation that his brother had red markings to his forehead is consistent with a punch being thrown. We consider that it is more likely than not that this occurred.

141. The police brief contains photographs of objects strewn all over the floor in the applicant’s mother’s house following the argument between the applicant and the applicant’s brother’s wife. When asked about how the objects came to be there in cross examination, the applicant said that, when he and his brother ran towards the back door, they knocked over things which his brother and his wife were moving. We do not find this to be a convincing explanation for the state of the room as shown in the photographs.

142. We find that it is more likely than not that the applicant’s brother gave an accurate account of the incident to the police on the day of the incident. In this account, the applicant punched his brother and the applicant’s brother and his wife exited the house together and ran to a nearby neighbour’s house where they contacted the police. The applicant exited the house after the police arrived, before being arrested.

143. We consider that the applicant’s account of the incident at the hearing is improbable and we reject it.

The conduct of the applicant since the offences or matters occurred (s 30(1)(b) and (h))

144. There are some aspects of the applicant’s conduct since the incident giving rise to the 2016 charges which are detrimental to his application.

145. We have found that he fell off his mother’s roof at the end of last year after consuming a large amount of alcohol.

146. We have also found that he punched his brother in May this year after becoming involved in a heated argument with his brother’s wife.

147. These are significant matters as they demonstrate a continuation of his earlier entrenched patterns of behaviour involving intoxication and violence.

148. There is also evidence of positive conduct which has occurred since the September 2016 incident.

149. The applicant has provided evidence of donations he made to charity. Some of these pre-date the 2016 incident, but he continued to sponsor a student in Cambodia following that incident. He continued to volunteer as a Thai/kickboxing trainer of children until an interim bar was imposed upon him under the Child Protection (Working with Children) Act in November 2016. He did not harm children in any way whilst in this role and, on the contrary, was the subject of positive references from parents. His history of volunteering with children without incident is a factor which weighs in his favour.

150. His wife testified to him being a great father and being good at looking after his nieces and nephews. Again, this is conduct which weighs in his favour.

151. The applicant continued to attend psychological counselling and to take medication for depression and anxiety. This is positive conduct which would tend to diminish the risk he poses to the safety of children.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s 30(1)(i))

152. The applicant relies upon the expert report of Tim Watson-Munro dated 25 October 2017. In that report, Mr Watson-Munro expresses the opinion that the risk of the applicant offending referable to violence is low and that he presented no risk to minors. He expressed this opinion “advisedly in the context of [the applicant’s] prior forensic history occurring essentially as a consequence of a longstanding Substance Misuse Disorder involving illicit drug use and primarily heroin, which ceased in 2001 and alcohol which has not been problematic for him since 2014.” Mr Watson-Munro expressed the further opinion that his “addiction is now in a state of Full Remission and in the absence of alcohol use, his prior poor impulse control and anger management has been dealt with.”

153. Mr Camacho’s report of February 2017 states that the applicant “appeared reliable as an informant” and also that he “has alcohols [sic] consumption managed”. Mr Camacho supported the applicant’s application to have his working with children check clearance reinstated.

154. When giving oral evidence, Mr Camacho said that the applicant had been regularly attending upon the applicant since 2016 and had progressed with mental health issues. He also said that there was “no real behaviour exhibited” to suggest he was taking alcohol.

155. The two expert reports on which the applicant relies support the applicant’s contention that he is not a risk to the safety of children. However, both reports were premised on the basis that he had not consumed alcohol to excess since 2014 and had his alcohol consumption well-managed. We have found this premise to be partly false. Whilst it is probable, consistently with his wife’s testimony, that the applicant generally manages his alcohol consumption much better than he did until about 2014, he has had significant relapses into alcohol abuse which he has not acknowledged to either psychologist or to the Tribunal.

152. We also note that Mr Watson-Munro’s report assumed that the applicant had “a loving and well-bonded relationship” with his wife, which is no longer the case, and may not have been the case in 2017, given their interactions in the 2016 text messages. The applicant described his past relationship with his wife on the second day of hearing as having been “rocky.” Mr Camacho envisaged that the applicant’s stability might be affected if his separation from his wife became permanent. Whilst the Tribunal cannot know whether the separation will be permanent, it has become prolonged (being about eight months).

153. The applicant considered that it was not necessary to undertake a ten-month in-patient rehabilitation program to address his alcohol and drug issues, as recommended by Ms De Santa Brigida in 2013. He gave evidence that the in-patient program was unnecessary because he had got his medication right and sought counselling.

154. In December 2016, the applicant told a staff member at the Office of the Children’s Guardian that, whilst he had seen psychologists and psychiatrists for three years, he had not done so in the last twelve months. In the twelve-month period in 2016 where he had no professional help, he reverted to binge drinking. This suggests that the applicant’s own assessment of his treatment needs is not always correct. We acknowledge that Mr Watson-Munro’s opinion in 2017 was that Ms De Santa Brigida’s treatment recommendation was no longer relevant. However, this opinion was premised upon the applicant’s self-reporting that alcohol had not been problematic for him since 2014.

155. We find that the applicant has not taken the necessary or recommended steps to overcome or control his alcohol use disorder. This makes the likelihood that he will repeat the conduct (in a broad sense) which led to the charges relating to the September 2016 incident. In other words, there is a real risk that the applicant will consume alcohol to excess and behave violently in the future.

156. There is no evidence that the applicant’s alcohol consumption or violent behaviour has caused harm to children in the past. The only evidence that it has affected his own children is his wife’s text message stating, “I don’t need you to abuse me when you get home. You scare me and [our child]!!” When asked about this, the applicant said that his wife’s use of the word “abuse” referred to an argument which was not physical and that he and his wife may have woken their son up. He acknowledged that their arguments could sometimes reach shouting point.

157. This provides some indication that the applicant’s alcohol consumption poses a risk to his child’s psychological safety, in that it has led to loud arguments which could frighten and upset a child.

158. We accept the submission of Ms Douglas-Baker that when adults are victims of violent offending, children can be indirect victims. We consider that, if the applicant were to re-offend by assaulting an adult in some way, the impact upon a child witnessing the assault could be significant in terms of psychological distress.

Any other matters that the Children’s Guardian considers necessary (s 30(1)(k))

163. The Children’s Guardian’s submissions are dealt with in the body of these reasons.

Does the applicant pose a risk to the safety of children?

164. We acknowledge that there are some factors which weigh in favour of a finding that the applicant does not pose a risk to children. These include his history of working and volunteering with children with no adverse incidents; the steps he has taken to manage his anxiety and depression, including by regularly attending counselling and by taking medication; the positive testimony from his wife and from a number of referees about his interactions with children; and the circumstance that he has made efforts to control his drinking. However, there are also some significant factors which indicate that he does pose a risk to children.

165. There are some aspects of the applicant’s behaviour which indicate that he has placed children’s psychological and physical safety at risk in the past.

166. The applicant kept a semi-automatic weapon unsecured in his home (albeit out of a child’s reach) when he had a two-year-old child living there. The police statement is that it was loaded. The applicant denied this. The police officer was not made available for cross examination. Nevertheless, it seems unlikely that the police officer would have given incorrect contemporaneous evidence about the gun being loaded. Further, the agreed facts in relation to this incident state that the gun was loaded. We find that there is at least a possibility that the gun was loaded and that the applicant’s present account of events is incorrect.

167. The presence of the semi-automatic weapon in the home created a risk to the safety of the applicant’s young son. On his own evidence, which is that he was storing the firearm for a friend who was going through a divorce, he placed his desire to help a friend both above his legal obligations and above any concern for the safety of his child. If the gun was in fact loaded, his conduct was even more reckless with regards to his son’s safety.

168. The applicant’s evidence was that his (by then) six-year-old son was awake in September 2016 when he first went outside to tell the Neighbour and his friend to turn the noise down. In allowing himself to become involved in a fight outside the house, the applicant potentially exposed his son to hearing or seeing the fight, had his son come out of his bedroom. It is also concerning that the sword was kept in easy reach, just inside the front door. This was not a secure place to keep a sword and shows a disregard for his son’s safety.

169. The applicant’s evidence, under cross examination, was that he did not have a choice to go inside and avoid the situation. He said this was because his wife would not go inside and the Neighbour’s Friend was threatening them with a hammer. When asked whether, in hindsight, he could have handled the matter differently, he said he could not and there was probably no better course of action.

170. Mr Camacho’s evidence, when cross examined, was that he had talked about the September 2016 incident with the applicant and that they looked at making that incident the final one where he lost control of his anger and made a bad decision. Mr Camacho said that the applicant made the wrong decision going back out and that they had talked about that. The applicant, however, did not appear to have gained the insight into the event which Mr Camacho’s report suggested.

171. The 2016 incident occurred notwithstanding that the applicant had received psychological counselling and was not affected by alcohol at the time. This indicates that he has difficulty controlling his anger or appropriately managing situations of conflict. Such a conclusion is reinforced by his conduct on earlier occasions, such as when he assaulted a security officers at a casino in 2011 and when he smashed a glass against a man’s face at a pub in 2012.

172. We consider that the circumstances referred to above, together with the applicant’s long history of violent and unlawful conduct, indicate that he poses a real and appreciable risk to the safety of children. We do not accept that this pattern of behaviour ended in 2012. Rather, we find that it has continued up to May 2019. We also find that the applicant has not fully recovered from his problems of alcohol abuse and that this increases the risk that he will act violently or will be verbally abusive in the future. We are satisfied that he poses a risk to children’s safety, notwithstanding his previous positive interactions with children, the effective management of his mental health conditions and the fact that his crimes did not involve children.

Further considerations

173. Having found that the applicant poses a risk to the safety of children, the Tribunal is not required to consider the matters set out in s 30(1A) of the Child Protection (Working with Children) Act. However, if we are wrong in finding that the applicant poses a risk to the safety of children, we do not consider that a reasonable person, informed about all the matters before the Tribunal, would allow his or her child to have direct unsupervised contact with the applicant whilst the applicant was engaged in child-related work (s 30(1A)(a); see also DMF v Children’s Guardian [2019] NSWCATAD 2 at [52]-[54] and DFL v Children’s Guardian [2018] NSWCATAD 121 at [57]-[61]). This is because a reasonable person would have concerns about the applicant’s long history of offending, about his ability to manage his anger and about the consistency and predictability of his behaviour, given that there is a real risk that he has not fully overcome his alcohol abuse problems.

174. In the circumstances, we do not need to consider whether it is in the public interest to make an order enabling the applicant to work with children.

Orders

175. We make the following order:

1. The decision of the respondent to cancel the applicant’s working with children check clearance is affirmed.

**********

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

Registrar

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

Registrar

Amendments

26 June 2019 - names redacted

11 July 2019 - names redacted at para [96]

Decision last updated: 11 July 2019