DGW v Children's Guardian - [2018] NSWCATAD 179

No judgment structure available for this case.

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DGW v Children’s Guardian [2018] NSWCATAD 179
Hearing dates: 23 April 2018
Date of orders: 08 August 2018
Decision date: 08 August 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: Hon G Mullane ADCJ - Principal Member
E Hayes – General Member
Decision:
1. The decision of the Children's Guardian of February 2017 refusing to grant the applicant a Working with Children Check Clearance is affirmed.

2. The applicant’s review application filed 18 December 2017 is refused and dismissed.
3. Publication or broadcast without the leave of the Tribunal of the name or other identifying information in these proceedings of DGW, any child or any alleged victim of alleged conduct of DGW is prohibited.
Catchwords: ADMINISTRATIVE LAW - Child Protection – Working with Children Clearance – History of abusive conduct – risk to children
Legislation Cited: Administrative Decisions Review Act 1997
Adoption Act, 2000;
Child Protection (Working with Children) Act 2012;
Crimes Act 1900;
Cases Cited: Commission For Children and Young People v V [2002] NSWSC 949
Category: Principal judgment
Parties: DGW (Applicant)
The Children's Guardian (Respondent)
Representation:
Counsel:
Ms Michelle Giacomo (Respondent)
Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s): 2017/00381945
Publication restriction: Publication or broadcast without the leave of the Tribunal of the name or other identifying information in these proceedings of DGW, any child or any alleged victim of alleged conduct of DGW is prohibited.

REASONS FOR DECISION

Introduction

On 24 October 2016 the applicant applied to the respondent for a Working with Children Check Clearance.
Because the applicant had been charged with an offence of sexual intercourse without consent in 2007, although he had been found “not guilty” by the jury at trial, the charge was one within Schedule 1 to the Child Protection (Working with Children) Act 2012 (“the Act”) and therefore pursuant to section 14 of the Act he was subject to a requirement that the Children's Guardian assess whether he poses a risk to the safety of children.
The respondent conducted the assessment and decided that the applicant posed a risk to the safety of children and therefore refused a Working with Children Check Clearance. The applicant was notified of the decision and of the reasons of the respondent.
The applicant filed an application with the Tribunal on 18 December 2007 for a review of the decision to refuse the Check Clearance.
The applicant did not have legal representation in the preparation of his application and supporting documents or in the conduct of the hearing on 23 April 2018.

Relevant Law and Legal Principles

The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances (s3 of the Act).
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 the 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.

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. Paragraph (e) of clause 1 of Schedule 1 applies to the applicant because his alleged offence was under section 61I of the Crimes Act (sexual intercourse without consent) and which act is specified in clause 1(e) of Schedule 2 and is therefore an offence within para 1(1)(b) of Schedule 1.
Under Section 16 the Children’s Guardian may request further information from an applicant for a clearance. It may terminate an application if the applicant without reasonable excuse fails to provide such further information within 6 months of the request.
By its letter of 6 December 2016 the Children’s Guardian requested the applicant DGW to provide further information described in the written request. The applicant sent material in response to that request. 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.

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.” The evidence discloses that the disclosures of the applicant were grossly inadequate. For example, he did not provide any adequate response to many allegations against him and many incidents recorded in records in evidence.
The jurisdiction of the Tribunal under s27of the Act is protective of children, and not punitive of the applicant.
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,
(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,
(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 was 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.

The Evidence

The evidence before the Tribunal on the hearing of this application comprised:-

Volume of documents filed by the respondent pursuant to Section 58 of the Administrative Decisions Review Act 1997 tabulated and indexed and comprising 223 pages.

Volume of further documents filed by the respondent on 16 April 2018 comprising five documents tabulated and indexed and being 417 pages.

Oral evidence of the applicant on 23 April 2018.

Section 30 Matters

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

The matter which triggered the assessment was that the applicant was charged with the offence of sexual intercourse without consent on 2 April 2007and at the hearing of the charge the jury made a finding of not guilty.
The proceedings were criminal proceedings so a “not guilty” verdict by a jury where the onus of proof on the prosecution is “proof beyond reasonable doubt” rather than proof on the balance of probabilities, means the finding of “not guilty” cannot be taken to be a finding that the accused did not commit the offence. It is certainly a finding the jury was not satisfied “that the offence was proved beyond reasonable doubt”.
The charge was serious because the allegation was that it was a forceable sexual assault. The complainant alleged she was in pain and told him multiple times to stop. She complained that she bled immediately after the incident and was “shaking and very distressed”. She underwent a sexual assault investigation at a hospital.
The evidence for the prosecution was that the applicant, and the complainant, his partner, were having consensual sexual intercourse when he initiated anal sex with the complainant. The complainant allegedly withdrew consent and requested him to stop what he was doing but he had not stopped until about one minute later. The complainant reported the matter to the Police the following day.
The alleged offence was an offence created by section 61I of the Crimes Act The legislature regarded it as a serious offence. The maximum penalty under the legislation at the time was 14 years imprisonment and under the Act it is a disqualifying offence.
It appears from the evidence of the alleged victim, Dr Rosemary Isaacs and the applicant, on the balance of probabilities the alleged offence did occur.

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

It is now 11 years since the trigger matter occurred. Since April 2007 the applicant has not been convicted or charged with any criminal offence. It appears that DGW for much of the time has lived in a rural area, rather than an urban area. He previously resided in urban locations. At the time of the alleged matter, he was residing in an inner city suburb of Sydney. It appears that prior to that he generally resided in metropolitan Sydney.
In the Downing Centre Local Court Interim Apprehended Violence Orders were made for the purpose of restricting his behaviour for the protection of the alleged victim in the criminal proceedings in April 2007. Those interim orders were made on various adjournments of the apprehended violence proceedings in April, May, July, August and December of 2007.
There were further interim apprehended violence orders made restricting the applicant’s behaviour for the protection of a person who is not identified by the evidence in December 2010, January 2011 and February 2011. The interim order in April 2007 was made in Balmain Local Court and the remaining interim orders were made in the Downing Centre Local Court.
The applicant in a statement provided to the respondent alleged that as at February 2017 he had been abstaining from alcohol for 15 years and had been attending meetings of Alcoholics Anonymous for 15 years.
On 28 December 2010 there was a complaint to the Police by a female adult. She said that there had been a romantic relationship between her and the applicant after they met on a dating site and they then entered into a “domestic relationship” for about a month. It is alleged that the woman told the applicant that she wanted to end the relationship and she did not want to see him any more. She alleged the applicant had continued to seek to have an ongoing relationship with her. She said that he was sending her messages and emails and she had sent a number of messages telling him she did not want to see him any more. She said he had a prior history of violence including stalking and intimidation.
The woman alleged that on 22 November 2010 she was returning home and saw the applicant in the foyer at her address. She alleged to the Police that he had approached her and tried to kiss her. She alleged she covered her face, told him to go away and told him that she did not want him near her. She alleged he then had cornered her and started to kiss her shoulders and she still had her hands over her face.
The Police attended. The applicant co-operated and left the scene. Then on 15 December 2010, the woman alleges she sent a text message to the applicant telling him that if he contacted her even once more in any form, she would take out an Apprehended Violence Order.
She alleged she continued to receive text messages and emails from him and she did not reply to any of them.
She alleged that on 28 December she received an email from him which contained a video of him masturbating. She contacted Police and complained of fears that he would continuously threaten and harass her with offensive emails and text messages. She was also concerned that he was going to come to her home and possibly assault her.
Police then attended on the applicant’s home.
In 2015 there was a complaint to railway staff by an unidentified woman that a man indecently exposed his penis to a her on a train and that he was masturbating. However, the Police did not take the matter further as they did not know the identity of the woman and the CCTV footage which showed the applicant from behind was unclear. Although from behind him it showed movements that could have involved masturbation, it was not clear enough for a prosecution.
In 2015 it was reported to Police that the applicant had run up behind a male (following a conversation they had about an Alcoholics Anonymous Meeting) and attempted to punch him to the right side of his head. The victim raised his arms, collecting the blow with his right forearm.

In relation to the other allegations that have not been found proved by a court of misbehaviour of the applicant, the evidence is not sufficient to enable the Tribunal to find that such allegations did or did not occur.

The age of the person at the time the matter occurred

The applicant was 36 years of age at the time the alleged victim alleged the sexual intercourse without consent occurred.

The age of each victim and any relevant alleged victim at the time of the alleged offence and any matters relating to vulnerability of the victim.

The alleged victim was 25 years of age. She was vulnerable as she was engaged in consensual sexual intercourse with the applicant in her home at the time. It was her partner and she had an expectation that she was safe. She alleged the applicant used his body weight to pin her down and complained that she was unable to stop the alleged sexual assault.

The difference in age between the alleged victim and the applicant

The applicant was 11 years older than the alleged victim.

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

The victim was not a child. He was her partner. The applicant’s present age
The applicant is now 47 years of age.

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

The applicant has a background prior to the alleged trigger offence of sexual intercourse without consent.
Those matters and the date or approximate date of the alleged conduct are as follows:-

DATE

EVENT

2 May 1991

Assault on a bus driver in the course of his duty by grabbing him around the throat area by his jumper and dragging him off the bus. The assault was found proven but the complaint was dismissed under the first offender provision at the time.

22 September 1992

The applicant was convicted of driving with the mid-range prescribed concentration of alcohol and driving whilst disqualified.

5 February 1994

The applicant was on a train seated across from some females in Sydney. He stood up and removed his erect penis from his pants and said to the females: “Black turns me on”. The victims ran from the carriage into another carriage. The applicant was convicted and fined $250.00

17 August 1996

The applicant struck a female victim with a closed right fist to her left eye. She fell to the ground. She sustained lacerations, swelling and redness to the area that was struck. Police observed the assault. When Police approached the applicant he head-butted a constable to the right side of the constable’s head causing swelling and pain in the area. He struck another constable with a closed right fist to the right side of the constable’s jaw causing swelling and redness to that area. The applicant was restrained by two officers and in the struggle three men fell to the ground. The applicant then punched one of the constables on the nose causing him to bleed. The applicant was handcuffed and placed in a Police vehicle. The female victim was a former partner of the applicant. The applicant was convicted of assault occasioning actual bodily harm, assault Police and resist Police. He was placed on a recognisance of $1,000.00, was required to complete 50 hours of community service and fined $400.00.

23 November 1997

The applicant had been arrested and conveyed to Mount Druitt Police Station at 2:30 am on 23 November 1997. At the Police Station he spat on the front counter. He was arrested and charged and placed in the charge room. While he was in the dock area, he continually spat on the glass door. Then he removed his clothing and masturbated and made sexually suggestive remarks to two female constables. He swore at the Police whilst in the charge room and continually played with his genitals. He was charged with behaving in an offensive manner in or near a public place. He was convicted for that and also for breaching his community service order. He was sentenced to periodic detention for nine months.

23 December 1997

The applicant was convicted of driving with the mid-range prescribed concentration of alcohol and possessing a prohibited drug.

22 January 1999

A woman complained to the police at Mt Druitt that while she was asleep the applicant had thrown a pot plant through the window of daughter’s bedroom. The applicant was outside her home shouting Police attended later. The woman said he was her ex-boyfriend and she would not lay a complaint because she wanted no trouble with him.

19 August 1999

He had been at a licensed venue in the poker machine area. He had head-butted an adult victim in the forehead and hit him with a closed fist to the left side of the head. The victim sustained redness to his forehead. The applicant He was convicted of common assault. He failed to attend court on the date fixed for sentencing. A warrant was issued to apprehend him and bring him to court for sentencing. He was then fined $856.003

27 September 1999

The applicant entered a hotel in Surry Hills and became abusive. When he was asked to leave the hotel by the female hotel manager he pulled out his penis and showed it to her. On arrest he was abusive to Police and also attempted to box arresting officers. He was forced to the ground and handcuffed. As he was conveyed to the Police Station he was abusive and aggressive towards the arresting officers and refused to answer any questions. On 18 October 1999 he was convicted of behaving in an offensive manner in or near a public place and resisting an officer in the execution of duty. He was convicted and placed on a recognisance of $1,500.00 for two years. He was required to accept the supervision of NSW Probation Service. On 5 February 2001 he was fined $856.00.

28May 2002

The applicant was at a hotel in Liverpool. He argued with a security guard about money he lost in the juke box. He threw a schooner glass at the juke box and it smashed. The security guard instructed him to leave the premises and grabbed the applicant by the shoulder and escorted him to the entrance to the hotel. The applicant said to the security guard “Fuck you, you fat cunt. I’m coming in”. The security guard responded “No. You’re not”. The applicant then struck the security guard with a closed clenched fist numerous times on the top of the head. There was a struggle between the men in which they locked arms. The applicant broke free and began striking the security guard to the head again on numerous occasions with closed fists. A bystander intervened and stopped the fight. Another person threw the applicant’s bag at him and he left the premises. Later in that evening the applicant spat in the eye of a Police Officer. On 4 March 2003 the applicant was convicted of assaulting an officer in the execution of duty, remaining on enclosed land without lawful excuse, assault occasioning actual bodily harm, destroy/damage property, and behaving in an offensive manner in or near a public place. He was fined for each of the offences, placed on a supervision bond, (particularly as to alcohol issues) and was required to undertake 100 hours of community service.

7 July 2011

At 10.30 am police were flagged down in Glebe by a male at 10:20 am who reported that the applicant had just assaulted him.

DATE	EVENT
2 May 1991	Assault on a bus driver in the course of his duty by grabbing him around the throat area by his jumper and dragging him off the bus. The assault was found proven but the complaint was dismissed under the first offender provision at the time.
22 September 1992	The applicant was convicted of driving with the mid-range prescribed concentration of alcohol and driving whilst disqualified.
5 February 1994	The applicant was on a train seated across from some females in Sydney. He stood up and removed his erect penis from his pants and said to the females: “Black turns me on”. The victims ran from the carriage into another carriage. The applicant was convicted and fined $250.00
17 August 1996	The applicant struck a female victim with a closed right fist to her left eye. She fell to the ground. She sustained lacerations, swelling and redness to the area that was struck. Police observed the assault. When Police approached the applicant he head-butted a constable to the right side of the constable’s head causing swelling and pain in the area. He struck another constable with a closed right fist to the right side of the constable’s jaw causing swelling and redness to that area. The applicant was restrained by two officers and in the struggle three men fell to the ground. The applicant then punched one of the constables on the nose causing him to bleed. The applicant was handcuffed and placed in a Police vehicle. The female victim was a former partner of the applicant. The applicant was convicted of assault occasioning actual bodily harm, assault Police and resist Police. He was placed on a recognisance of $1,000.00, was required to complete 50 hours of community service and fined $400.00.
23 November 1997	The applicant had been arrested and conveyed to Mount Druitt Police Station at 2:30 am on 23 November 1997. At the Police Station he spat on the front counter. He was arrested and charged and placed in the charge room. While he was in the dock area, he continually spat on the glass door. Then he removed his clothing and masturbated and made sexually suggestive remarks to two female constables. He swore at the Police whilst in the charge room and continually played with his genitals. He was charged with behaving in an offensive manner in or near a public place. He was convicted for that and also for breaching his community service order. He was sentenced to periodic detention for nine months.
23 December 1997	The applicant was convicted of driving with the mid-range prescribed concentration of alcohol and possessing a prohibited drug.
22 January 1999	A woman complained to the police at Mt Druitt that while she was asleep the applicant had thrown a pot plant through the window of daughter’s bedroom. The applicant was outside her home shouting Police attended later. The woman said he was her ex-boyfriend and she would not lay a complaint because she wanted no trouble with him.
19 August 1999	He had been at a licensed venue in the poker machine area. He had head-butted an adult victim in the forehead and hit him with a closed fist to the left side of the head. The victim sustained redness to his forehead. The applicant He was convicted of common assault. He failed to attend court on the date fixed for sentencing. A warrant was issued to apprehend him and bring him to court for sentencing. He was then fined $856.003
27 September 1999	The applicant entered a hotel in Surry Hills and became abusive. When he was asked to leave the hotel by the female hotel manager he pulled out his penis and showed it to her. On arrest he was abusive to Police and also attempted to box arresting officers. He was forced to the ground and handcuffed. As he was conveyed to the Police Station he was abusive and aggressive towards the arresting officers and refused to answer any questions. On 18 October 1999 he was convicted of behaving in an offensive manner in or near a public place and resisting an officer in the execution of duty. He was convicted and placed on a recognisance of $1,500.00 for two years. He was required to accept the supervision of NSW Probation Service. On 5 February 2001 he was fined $856.00.
28May 2002	The applicant was at a hotel in Liverpool. He argued with a security guard about money he lost in the juke box. He threw a schooner glass at the juke box and it smashed. The security guard instructed him to leave the premises and grabbed the applicant by the shoulder and escorted him to the entrance to the hotel. The applicant said to the security guard “Fuck you, you fat cunt. I’m coming in”. The security guard responded “No. You’re not”. The applicant then struck the security guard with a closed clenched fist numerous times on the top of the head. There was a struggle between the men in which they locked arms. The applicant broke free and began striking the security guard to the head again on numerous occasions with closed fists. A bystander intervened and stopped the fight. Another person threw the applicant’s bag at him and he left the premises. Later in that evening the applicant spat in the eye of a Police Officer. On 4 March 2003 the applicant was convicted of assaulting an officer in the execution of duty, remaining on enclosed land without lawful excuse, assault occasioning actual bodily harm, destroy/damage property, and behaving in an offensive manner in or near a public place. He was fined for each of the offences, placed on a supervision bond, (particularly as to alcohol issues) and was required to undertake 100 hours of community service.
7 July 2011	At 10.30 am police were flagged down in Glebe by a male at 10:20 am who reported that the applicant had just assaulted him.

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

The material provided by the applicant in support of his application is extremely limited. There are seven pages in the s 58 bundle which are material relied upon by the applicant. He has contended that his offending occurred at a time when he had significant alcohol problems. He contends that he has been sober for 15 years.
However, the Tribunal notes the complaints about his conduct in 2007, 2010, 2011 and 2015 relate to alleged conduct at a time when he was allegedly free of alcohol.
The applicant has not subjected himself to any risk assessment from a suitably qualified expert as to the risk of him re-offending by way of violence, sexual misconduct, intimidation or other abusive conduct towards others.
The applicant provided a single page letter from a psychologist, Ms Willmott. She says he has been “working with me for the last 4 ½ years in relation to his personal development”. She says that he has attended on her at weekly appointments and has on occasion not attended, with “good reason”.
The letter does not disclose what information the applicant has provided to Ms Willmott in terms of his criminal record and other bad behaviour. She is of an opinion that “he is committed to being the best that he can be and is constantly striving to maintain a high standard for himself and his life”. She says that he is “caring and reliable”.
The evidence does not disclose Ms Willmott’s qualifications for the specific nature of the work she has undertaken. The applicant has not undertaken any treatment, therapy or counselling to address his tendency to use abusive behaviour, violence and sexual behaviour towards others.

Any relevant information in relation to the person that was obtained under s 36A

Nil.

Any other matters that the Children's Guardian considers necessary.

Nil.

Conclusion re Section 30(1) Matters

In this matter the applicant is a person with an extensive history of using physical assaults, sexual assaults, verbal abuse, violence, threats and intimidation in his dealings with other people. The evidence establishes that he poses a real and appreciable risk to other people, including children.

Section 30(1A) of the Act

Sub section 30(1A) provides:-

The Tribunal may not make an order under this part which has the effect of enabling a person (the “affected person”) to work with children in accordance with this Act unless the Tribunal is satisfied:-
(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.

On the evidence before the Tribunal, the Tribunal is not satisfied as to either of the limbs of the sub section.

Conclusions

There should be an order affirming the decision of the Children's Guardian to refuse a Working with Children Check Clearance for the applicant.

Privacy

Any child or alleged victim of DGW should have their privacy protected. In addition, because the issue is about risk and some allegations against DGW have not been proved, but are relevant to the issue of risk, the applicant should have similar protection.

Orders

Accordingly the orders of the Tribunal are:-

The decision of the Children's Guardian of February 2017 refusing to grant the applicant a Working with Children Check Clearance is affirmed.

The applicant’s review application filed 18 December 2017 is refused and dismissed.

Publication or broadcast without the leave of the Tribunal of the name or other identifying information in these proceedings of DGW, any child or any alleged victim of alleged conduct of DGW is prohibited.

**********

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

Registrar

Decision last updated: 08 August 2018

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Citations

DGW v Children's Guardian [2018] NSWCATAD 179

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Commission for Young People v V [2002] NSWSC 949

Medium Neutral Citation:	DGW v Children’s Guardian [2018] NSWCATAD 179
Hearing dates:	23 April 2018
Date of orders:	08 August 2018
Decision date:	08 August 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hon G Mullane ADCJ - Principal Member E Hayes – General Member
Decision:	1. The decision of the Children's Guardian of February 2017 refusing to grant the applicant a Working with Children Check Clearance is affirmed. 2. The applicant’s review application filed 18 December 2017 is refused and dismissed. 3. Publication or broadcast without the leave of the Tribunal of the name or other identifying information in these proceedings of DGW, any child or any alleged victim of alleged conduct of DGW is prohibited.
Catchwords:	ADMINISTRATIVE LAW - Child Protection – Working with Children Clearance – History of abusive conduct – risk to children
Legislation Cited:	Administrative Decisions Review Act 1997 Adoption Act, 2000; Child Protection (Working with Children) Act 2012; Crimes Act 1900;
Cases Cited:	Commission For Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	DGW (Applicant) The Children's Guardian (Respondent)
Representation:	Counsel: Ms Michelle Giacomo (Respondent) Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00381945
Publication restriction:	Publication or broadcast without the leave of the Tribunal of the name or other identifying information in these proceedings of DGW, any child or any alleged victim of alleged conduct of DGW is prohibited.