DLL v Children's Guardian

[2019] NSWCATAD 232

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DLL v Children’s Guardian [2019] NSWCATAD 232
Hearing dates:	6 April 2019
Date of orders:	06 November 2019
Decision date:	06 November 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C A Mulvey, Senior Member R Royer, General Member
Decision:	(1)   Leave is granted to extend the time for the applicant to file his application seeking review of the decision of the Children’s Guardian dated 2 March 2018 cancelling the applicant’s working with children check clearance to 7 May 2018. (2)   The decision of the Children’s Guardian dated 2 March 2018 cancelling the applicant’s working with children check clearance is set aside. (3)   The Children’s Guardian shall forthwith reinstate a Working with Children Check Clearance to the applicant known in these proceedings as DLL.
Catchwords:	ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing) Procedure Act (NSW) 1999 Evidence Act 1995 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BKE v Office of the Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Children’s Guardian v CFW [2016] NSWSC 1406 Children’s Guardian v CKF [2017] NSWSC 893 Children’s Guardian v CXZ [2019] NSWSC 1083 CKF v Children’s Guardian [2017] NSWCATD 6 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 CTM v Children’s Guardian [2016] NSWCATAD 280 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 DAR v Children’s Guardian [2018] NSWSC 942 Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6 M v M [1988] HCA 68; 166 CLR 69 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 R v Commission for Children and Young People [2002] NSWIRComm 101 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Smith v Commissioner of Police [2014] NSWCATAD 184 ZZ v Secretary of the Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DLL (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: T Stevens (Respondent)   Solicitors: Applicant (Self Represented)
File Number(s):	2018/00143933
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. The applicant seeks administrative review of a decision of the respondent cancelling his Working with Children Check Clearance (WWCCC), in that the respondent (the Office of the Children’s Guardian) following a risk assessment, formed the view that the applicant poses a real and appreciable risk to the safety of children and young persons.

2. The applicant is referred to as "DLL". DLL is the applicant's pseudonym used in these proceedings in conformity an order made pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013.

3. On 25 March 2014, DLL had been granted a WWCCC under the Child Protection (Working with Children) Act 2012 (the Act). On 5 December 2015, the respondent was notified that DLL had been charged with criminal offences relating to his previous relationship. On 6 June 2017, the respondent informed DLL that he was subject to an interim bar and that a risk assessment was to take place concerning him being able to retain his WWCCC. Following a risk assessment being completed, the respondent on 2 March 2018 issued a Notice of cancellation of a WWCCC under s.23(1) of the Act.

4. In determining the risk assessment resulting in the cancellation of DLL’s WWCCC, the respondent relied on three allegations of domestic violence incidents which took place on 4 January 2015, 22 March – 28 March 2016 and 21 April 2017.

5. On 7 May 2018, DLL filed an application seeking administrative review of the decision of the respondent to refuse him a WWCCC. DLL relies on his evidence which explains the circumstances pertaining to each of the allegations raised by the respondent in coming to its determination to cancel his WWCCC.

6. The issue for us to determine is whether, as at the date of hearing, we can be satisfied DLL poses a real and appreciable risk to the safety of children if he were granted a clearance to work in child related-work.

7. After consideration of all the evidence, we decided to set aside the decision of the Children’s Guardian to refuse him a WWCCC. The reasons are set out below.

Jurisdiction of the Tribunal

8. There is no dispute that we have jurisdiction to review the decision of the respondent that is the subject of this application. In reviewing that decision we must determine the correct and preferable decision having regard to the material before us and the applicable law: see Administrative Decisions Review Act 1997 (NSW), s 63(1). Upon determining an application for review we may make orders that include an order to affirm the decision of the respondent, or an order to set aside the decision of the respondent and in substitution thereof making another decision (in this case an order to grant a clearance): see Administrative Decisions Review Act, s 63(3) and the Act, ss 18(2) and (3).

Relevant Law and Legal principals

9. The jurisdiction of the Tribunal under Part 4 of Act is protective and not punitive in nature as set out by the Court when considering s 28 of that Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]; R v Commission for Children and Young People [2002] NSWlRComm 101.

10. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

“3 Object of Act

The object of this Act is to protect children:

(a)   by not permitting certain persons to engage in child-related work, and

(b)   by requiring persons engaged in child-related work to have working with children check clearances.

4 Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”

11. The respondent will consider the matters set out in s 15(4) of the Act in making a risk assessment. The respondent must grant a clearance to a person who is subject to a risk assessment unless she is satisfied that the person poses a risk to the safety of children: s 18(2) of the Act. Section 5B of the Act defines risk to the safety of children as being “a real and appreciable risk to the safety of children”.

12. Section 23 of the Act requires the respondent to cancel a WWCCC if the respondent becomes aware that the person is a disqualified person, or (as in this administrative review) the respondent is satisfied that the person poses a risk to the safety of children.

13. A person who has been refused a clearance may apply to the Tribunal for administrative review of the decision: s 27 of the Act.

14. s 27 provides:

“27   Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

…

(2) A person whose clearance is cancelled by the Children’s Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person….”

15. The Notice of cancelling DLL’s WWCCC under s.23(1) was issued on 2 March 2018. DLL stated in his application that he was notified of the decision on the same date. DLL’s application for administrative review was filed on 7 May 2019 which means it was filed contrary to s27(2).

16. In circumstances where the review application is out of time as prescribed by s27, DLL can seek leave to extend the time for the filing of the review application. DLL details the following reasons in his review application as being: “My lawyer has been overseas and I haven’t been able to get the advice necessary before hand.” The respondent neither in written nor in oral submissions placed this in issue. In circumstances where the application was filed only 37 days late, we exercise our discretion pursuant to s41 NCAT Act. In doing so, the guiding principle found in s36 NCAT Act facilitating the just, quick and cheap resolution of the real issues pertaining to the review application is achieved.

17. DLL must fully disclose to the Tribunal any matters relevant to the application; s 27(4) of the Act.

18. In this administrative review, neither party bears the onus of proof. There is no presumption that DLL poses a risk to the safety of children as would be the case under s 28(7) of the Act if he was a disqualified person. See McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6. Woodward J there observed in relation to the Administrative Appeals Tribunal (at 356-357(FCR):

‘There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's.’

19. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 in which the High Court stated that: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove”.

20. An application under s.27 of the Act is a merits review and not a review in which DLL must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88.

21. The issue for us as required by s 18(2) of the Act is whether DLL, on the balance of probabilities, poses a risk to the safety of children. Young CJ in Commission for Children and Young People v V (2002) NSWSC 949 considered the test to be applied 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 word “risk” with the words that follow, namely, to the safety of children”.

22. As set out above, s 5B of the Act enshrines a definition of “risk to the safety of children” in similar terms to Young J in V.

23. The decision in BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take in assessing the question of ‘risk to the safety of children’.

24. At pars 29 - 33 of BKE the Court observed:

“29. In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

30. Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at p 70).

31.   In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

32.   The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

33. The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

25. The Supreme Court of NSW has on many occasions adopted the approach taken in M v M and BKE (see Children’s Guardian v CXZ [2019] NSWSC 1083; DAR v Children’s Guardian [2018] NSWSC 942; Children’s Guardian v CKF [2017] NSWSC 893 and Guardian v CFW [2016] NSWSC 1406).

26. We may not make an order on conditions, whether under s 27 or 28 of the Act: BJB v Children’s Guardian (No. 2) [2014] NSWCATAD 164.

27. In determining this review application, we must first have regard to the factors set out in s 30(1) of the Act.

28. In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered by the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267, where it was held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.

Evidence

Documents

29. DLL filed the following written material:

1. Application filed 7 May 2018 (A1)

2. Bundle of documents (including CCTV) (A2)

3. Provisional apprehended domestic violence order (A3) - see below

30. The respondent filed the following written material

• Bundle 58 documents 8 June 2018 (R1)

• Bundle 58 documents 11 July 2018 (R2)

• Bundle 58 documents 18 July 2018 (R3)

• Bundle 58 documents 4 September 2018 (R4)

• Bundle 58 documents 17 September 2018 (R5)

• Bundle 58 documents 17 October 2018 (R6)

• Bundle 58 documents 21 October 2018 (R7)

• Email Chain 17 July 2018 (R8)

31. DLL was not represented. The respondent was represented by Counsel.

32. During the hearing, DLL gave oral evidence and was cross-examined by the respondent’s counsel. No other witnesses were called by either party. Written submissions were relied upon and both DLL and the respondent’s counsel made final submissions.

31. On 17 May 2019, DLL filed further evidence which was a provisional apprehended domestic violence order in relation to QRS who is referred to in the discussion below Incident 3. He submitted that the document should form part of his evidence as it demonstrates the behaviour of QRS as being harassing treatment towards him. In a letter dated 23 May 2019, the respondent takes no objection to leave being granted for the late material being relied upon by DLL. The respondent submits minimal weight should be given to the document.

32. We decided to admit the document and note the submissions by the respondent. The bundle is marked (A3).

Three allegations of domestic violence incidents

35. The respondent refers to three alleged incidences of domestic violence which were taken into consideration in determining to cancel DLL’s WWCCC.

Incident 4 January 2015 involving DLL’s former wife XYZ

36. In 2015, DLL and XYZ were married and in a domestic relationship. On 4 January 2015 following a complaint made by XYZ, police attended the home of DLL and XYZ. The factual scenario includes allegations made by XYZ that she and DLL had been arguing for three months about DLL having an affair with another woman. On 4 January 2015, XYZ after viewing information on DLL’s computer discovered DLL was having affairs with other women. XYZ called a friend to come over and help her pack so she could leave the home. Shortly before 1.00 a.m. Upon DLL returning home they argued. XYZ alleged that DLL verbally abused her which caused her to be in fear and that he pushed her with two hands causing her to fall backwards. XYZ gave a statement to NSW Police on 4 January 2015 (R3, page 160). The statement refers to XYZ being ‘really scared because I had never seen him rage like this before.’ XYZ said DLL made comments to the effect ‘I’m going to make your life hell …’. DLL was charged with common assault and pleaded guilty to that charge on 27 February 2015. XYZ’s statement and the police facts include a version of events where DLL pushed XYZ with two hands causing her to fall backwards into a wardrobe.

37. At page 29 of R3, in the ERISP given to NSW Police, DLL provides the following version of events:

‘… like, clearly, obviously, she with all the jostling around, I mean, she’s going to be bouncing off me, she’s only, like, 40, 45 kilo for Christ’s sake. Like, clearly she’s jumping, jostling and trying to get at me. I’m like with this with bag. Clearly she is just gunna bounce off me. You know, and I don’t know if she lost her footing, I don’t know what the go is. I never ever raised my hand, never touched her, never pushed her, never shoved her. All I was doing was using my body to try and get the thing and get my friggin hard drive out. …’

38. An independent witness, a friend of both DLL and XYZ, in a statement to NSW Police said the following (page 162 - R3):

‘… they both went into the bedroom and I stood at the door. DLL started going through the suitcase and XYZ was trying to keep things in the suitcase. I then saw DLL turn towards XYZ and push her with both hands. As he did this he stepped towards XYZ using his whole bodyweight. As a result, XYZ has been pushed 2 metres away and fallen into the cupboard. …’

39. The mutual friend of both DLL and XYZ said that she recalled DLL saying ‘I’m gunna make your life a living hell. You will be sorry you did this …’.

40. DLL pleaded guilty to the offence was sentenced pursuant to s10(1)(b) of the Crimes (Sentencing) Procedure Act (NSW) 1999 without proceeding to a conviction and directed to enter into a good behaviour bond for 12 months.

41. In oral evidence in this hearing, DLL said there was an argument between himself and XYZ in relation to the hard drive of a lap top which was in a bag. DLL grabbed these items and attempted to leave the home. XYZ stood in the doorway of the bedroom and would not let him out. Using his forearm he pushed her aside and was later charged by the police with assault. He denies that he pushed her with any force and provided a history of himself being assaulted by XYZ immediately prior to this accident where she was hitting and scratching him in an attempt to get the hard drive out of a bag. DLL said he was not the aggressor.

42. When the matter went before the Local Court DLL was represented by a solicitor. He said he was advised to plead guilty to the offence and the likelihood of the sentence would be that he may be dealt with by way of a “s10” which he believed to be no conviction recorded. Based on this advice, DLL pleaded guilty to the police facts and achieved the result of a s10(1)(b) as set out above. It is uncertain as to whether any self-defence argument could have been raised, or indeed whether such a defence would have been successful.

43. In cross-examination DLL agreed that his two children resided with he and XYZ at the time of the altercation. He said each of his children have their own bedrooms. DLL denied he had been drinking that evening and that confirmed that he pleaded guilty to the police facts. DLL said he was angry that his wife had taken the hard drive of the computer and described his demeanour as being ‘flustered’. He denied abusing XYZ but agreed that he did use “profanity”. He said it was a “concern” that his two children were at home when this incident took place. He denied the allegations of pushing XYZ with two hands as being ‘all untrue’. He said that XYZ could not have travelled two metres as there was a doorframe between them and that if she had of travelled such a distance she would have suffered significant injury.

44. Counsel for the respondent put a version of events as set out by the independent witness, which included ‘I opened the door again and XYZ told me to call the police. I then started calling triple zero. DLL kept yelling at XYZ and I remember him saying ‘I’m gunna make your life a living hell. You will be sorry you did this. You’re a cunt, you’re a stupid bitch, you’re an arsehole, you’re a cunt.’’

45. In cross-examination DLL denied that he said these words. He agreed that it would be inappropriate to use those words in a home where children were present and said that this was not appropriate behaviour but denied that his children were in any danger because he swore. Following the incident, DLL and XYZ continued to live together until 26 May 2015 when she moved out. DLL and XYZ’s two children remained living with him.

46. DLL said that he worked as a male entertainer XYZ and was jealous of his work and this led to many arguments and disagreements between them.

47. In his written submissions DLL said that he only pleaded guilty to the facts on the basis of the advice from his solicitor. Had he known that these facts could be used against him in these or other proceedings he would have ‘vigorously defended myself as I initially intended.’

48. A Statutory Declaration made 8 April 2016 by XYZ to NSW Police, predominantly in relation to the second incident below, but relevant to their relationship contains the following:

‘After reflecting on the matter [the second incident] I know that I have sent similar nasty text messages to DLL. Our relationship has been troubled for quite a number of years now and we have both been hostile towards one another, it certainly hasn’t been one way. I don’t wish to have an AVO against him, I am not fearful of him and request that you withdraw it. On 28 March when I attended Toukley Police Station I did find evidence earlier that day that my husband was seeing another woman and it made me quite upset. I ask that you withdraw this matter as I don’t want charges laid against my husband, I am not feeling at all threatened by him.’ [our emphasis]

49. Whilst this declaration by XYZ predominantly relates to the second incident below, it does evidence an admission by XYZ that her relationship with DLL: “…has been troubled for some time years now and we have both been hostile towards one another, it certainly hasn’t been one way…”.

50. In circumstances where the Tribunal did not have a statement from an independent witness, we may have been unable to make positive findings concerning the allegations being made. However, as to this incident we have the corroborating statement of XYZ’s friend who witnessed the altercation between DLL and XYZ. We have placed greater weight on the statement of XYZ’s friend over the evidence of DLL. DLL in his ERISP denied pushing XYZ. He pleaded guilty to a set of facts for the reasons as set out above. His plea of guilty was made based on legal advice knowing that he may achieve the desired result if he did not challenge the facts. He made the decision to accept those facts and we must take them into account in making our determination. We do not accept the submission that we should not accept the facts relied upon in relation to the plea of guilty on the basis that DLL was in some way coerced or pressured into entering that plea by his solicitor. The facts include a version of events where DLL pushed XYZ with two hands. This is consistent with the version of events given by XYZ’s friend and XYZ. DLL said he was flustered at the time of the incident. It is evident based on his evidence and the documents before us that DLL’s main focus was on securing his hard drive. We find on the balance of probabilities, having placed greater weight on the independent statement of XYZ’s friend, that DLL pushed XYZ with two hands causing her to fall backwards.

51. We also find on the balance of probabilities, accepting the statement of XYZ that DLL used the words saying: ‘I’m gunna make your life a living hell. You will be sorry you did this. You’re a cunt, you’re a stupid bitch, you’re an arsehole, you’re a cunt.’ However, we also find that XYZ was equally involved in the altercation as DLL. We have taken into consideration the statement set out by XYZ in her statutory declaration where she states: “…we have both been hostile towards one another, it certainly hasn’t been one way…”. We accept DLL’s evidence that XYZ was jostling with him and that she was physically trying to take the bag and/or the hard-drive. We draw an inference that XYZ was as physically involved in this incident as much as DLL was. However, this finding does not at all excuse DLL’s response of pushing XYZ backwards with two hands, but, it does go some way to explain what was occurring in the room at the time and their relationship generally.

The Second Incident - used carriage service to menace or harass XYZ

52. It was alleged by XYZ that on 22 March 2016, at approximately 3.00 p.m. DLL was intoxicated and did not want to attend a school event. XYZ made allegations that in a car driving to DLL’s children’s school he yelled ‘Shut your fucking face you idiot’ and when XYZ pulled the car over he further said, ‘Shut your fucking face or I’ll knock your fucking teeth out.’ XYZ alleges that DLL grabbed her hair and pulled her head back and then yelled to her ‘Just drive’. He is said to have continued to verbally abuse and assault her. On return from the school, XYZ alleges that DLL again yelled abuse at her which was apparently witnessed by their 8 year old son.

53. In the days following this incident DLL is alleged to have sent a number of text messages to XYZ that are described as being insulting, sexually degrading and contemptuous of her as a mother. On 28 March 2016, XYZ reported the above incidents to the NSW Police Force. A provisional AVO was taken out against DLL. DLL was charged with the offences of common assault, stalk/intimidate and intend to cause fear of physical harm and use a carriage service to menace, harass or offend.

54. On 1 April 2016, XYZ provided a Statutory Declaration to the NSW Police Force stating [para 48 above] that she had: ‘withdrawn the matter as I don’t want charges laid against my husband’ and ‘I am not feeling at all threatened by him’.

55. DLL denies each of the allegations made by XYZ relating to the charges of common assault and stalk, intimidate and intend to cause fear of physical harm. DLL said that these complaints were made to police following XYZ becoming aware that DLL had a new girlfriend. However, DLL said referring to the charge to which he pleaded guilty: ‘I had to put my hand up for as I had sent her an abusive text message after she had abandoned our son with no food, contact and he was very scared when I called him.’

56. XYZ in her Statutory Declaration requests the police withdraw all charges in relation to the matter and in our minds it supports the evidence of DLL that the events in the car did not occur.

57. On 8 July 2016, the charges of common assault and stalk and intimidate were dismissed following XYZ not appearing as a witness at court. DLL pleaded guilty to the charge of ‘use carriage service to menace harass offend’. He was convicted and fined $800. A letter from a counsellor was tendered in the Local Court proceedings in mitigation by DLL which also included a letter from DLL himself stating: ‘I have let everybody down by responding to certain texts I have received in an offensive manner.’ He further stated: ‘This offence certainly is not in my nature, I very much regret that it has happened.’

58. The guilty plea by DLL to the offence of use carriage service to menace, harass and offend is one which enables the Tribunal to make a positive finding that his behaviour was such that it may have menaced or harassed XYZ. However, this is ameliorated by XYZ’s Statutory Declaration to the Police whereby she freely admits that she was not feeling at all threatened by him and wishes the charges laid against DLL to be withdrawn. Further, XYZ chose not to attend Court and give evidence in relation to all of the charges, presumably for the reasons which are set out in her Statutory Declaration of 1 April 2016.

59. A statement provided by DLL’s new girlfriend (BAS), made 27 June 2016, has been tendered in the bundle of documents marked A2. We do not intend to set out the contents of that statement in detail. Suffice to say the contents of that statement have been taken into consideration and support DLL’s submissions concerning the unreliability of XYZ’s statements to police, particularly concerning the second incident. The behaviour which has been witnessed and described by BAS supports the evidence and submissions made by DLL both in writing and at the hearing concerning the context surrounding Incidents 1 and 2 involving XYZ.

60. Having taken into consideration the contents of XYZ’s Statutory Declaration of 1 April 2016, we are not satisfied on the balance of probabilities the other allegations concerning DLL’s behaviour occurred. We prefer and accept DLL’s evidence over the initial allegations made to NSW Police by XYZ concerning 22 March 2016.

61. The respondent submits that the Tribunal is in a position to find that there was a real risk to the safety of children associated with these allegations. We reject that submission. We are also not satisfied that there is any lingering doubt or serious suspicion that the events occurred as originally alleged by XYZ given the contents of the Statutory Declaration and her failure to attend the Local Court proceedings as a witness for the NSW Police.

62. We are not satisfied that the text messages DLL sent to XYZ are such that would enable the Tribunal to come to the conclusion that DLL poses a risk to the safety of children. The text messages in our mind are a retaliatory approach taken by DLL to a matrimonial dispute. DLL’s use of language such as ‘ moron, fucking arsehole and fucking jerk off’ is poor, but does not amount to any threat or degree of intimidation that would mean he is a real and appreciable risk to the safety of children.

The Third Incident - assault against QRS

63. On 21 April 2017, it is alleged that DLL was at the home of his new girlfriend QRS, with whom he had been in a relationship for approximately 1 year. QRS alleged that DLL had been drinking and was upset with her and “rambling” that she was dishonest. QRS provided a version of events where she said that she did not want him making those statements to her and she started recording him with her mobile phone. It is alleged that DLL grabbed her mobile and put it in the toilet. Upon retrieving her phone QRS said that she ran down a set of stairs towards the garage, DLL followed her, pushed her against a mirror, and then attempted to get out of the home leaving through the garage door. QRS tried to stop DLL from leaving and she said DLL pushed her against a wall. The allegations and a statement of QRS was been captured on CCTV. The statement was used as evidence of domestic violence in relation to DLL being charged with larceny of a mobile phone, intentionally and recklessly destroying property, and assault causing actual bodily harm. The matters were listed for hearing but were dismissed for lack of evidence. QRS was subpoenaed to give evidence but failed to attend Court. At page 233 of Exhibit R3 a request was made by the respondent as to the reason QRS failed to attend and give evidence. The response from the Senior Constable investigating the matter was: ‘I have no reason why, she was subpoenaed in person and failed to attend. Within the days leading up to the hearing date she failed to answer any calls, then on the day and post she has still failed to return any calls or open her door.’ There was no explanation provided to the police as to why QRS failed to attend and give evidence at the hearing.

64. In relation to this incident, DLL said he was on the way to work in Sydney to MC a hens night show. QRS did not want him to attend that function and said to him if he worked that night ‘they were through’. DLL said to QRS “it is just a job”. He called QRS’ sister and said he did not know what to do but ultimately cancelled his shift for that night. He drove to the suburb where QRS lived and observed she had been drinking when he arrived at the property. DLL said he tried to pacify the situation. QRS calmed down and was okay sitting on his lap listening to him. Both DLL and QRS had two drinks each. DLL’s mother called him and was talking to her about his ex-wife. DLL said there had been a 3 year bitter Family Court hearing between himself and his ex-wife (XYZ). DLL said QRS believed that he was talking to his mother about her. A verbal argument ensued. He walked around the corner of the bedroom door and noticed that QRS was recording him. DLL said he attempted to grab the telephone and delete the video. Whilst he was doing this QRS was hitting him and as she lunged towards DLL the phone left his hand and dropped into the toilet. The toilet was across the hallway from the entry to QRS’ bedroom where the altercation had occurred. DLL said he went to get the phone out of the toilet and as he did so QRS hit him in the face. DLL said the phone dropped into the toilet accidentally. DLL said that following the phone dropping into the toilet he tried to get the keys to his house off a keyring of QRS. He did not get the keys off the keyring so he took the whole set of keys and tried to leave the house through the garage door. QRS followed DLL down some stairs and he asked her to let him out of the garage which request was refused. DLL said that QRS ‘barged past me towards the door and the mirror fell’. He said, ‘I did not push her she barged past me to get the remote for the garage from her car and bolted upstairs.’ DLL told us that he overrode the garage door and was able to open it. QRS again came down the stairs, running towards him, she ran and fell at DLL and bounced off him onto the concrete floor. DLL said he left in his car leaving QRS was standing in front of it. DLL said he understood the neighbours called the police. He denies that he pushed QRS causing her arm to be grazed.

65. Following the incident, DLL attended a medical centre and reported the injuries he sustained that night. The report of attending the medical centre and photographs are included in DLL’s bundle of documents marked A2. It records on 24 April 2017 at 4.52 p.m. DLL gave a history of being involved in a: ‘fight with his partner. Both with drinking. Police got involved due to a domestic violence charge.’ The progress note records DLL as having bruises on the left anterior shin 1cm, left forearm dorsal 3cm and palmar aspect 2cm. Bruise right upper arm triceps area 1cm. The reason for contact is described as a result of a haematoma. The photographs correspond with the injuries as described in the progress note.

63. The recorded interview provided by DLL to the police in relation to this incident is contained in Exhibit R3. DLL’s evidence in chief was overall consistent with the statement he gave immediately following the incident. The statement of QRS was contained in a video which was viewed during the hearing.

64. DLL was cross-examined on the statement given by QRS and her injuries. It was put by Counsel for the respondent that the injuries sustained by QRS in the accident occurred as a result of DLL picking QRS up and throwing her. DLL said he does not accept her version of events and that QRS’ evidence was inconsistent even in relation to the recorded statement itself. At one point QRS said that DLL had picked her up and thrown her across the garage floor and she has sustained injury. In another version of events she said that DLL was sitting in the car with one leg out and he pushed her causing injury. Overall he said QRS’s evidence was inconsistent and unreliable. DLL denied that the injuries sustained by QRS occurred in the garage but rather somewhere else. Having had the benefit of observing the recorded statement of QRS, we find that her version of events was inconsistent as identified by DLL in cross-examination.

65. We find that there was a domestic altercation between DLL and QRS. However, we accept DLL’s version of events. In making this finding we were satisfied on the balance of probabilities that the statement provided by QRS was inconsistent in that QRS contradicted her own version as to how she suffered the injuries on that night.

66. We have also taken into consideration that QRS failed to attend at the criminal proceedings to give evidence in support of the allegations amounting to the charges against DLL. Due to her non-attendance at court, the only evidence we can determine this matter on is the recorded statement which was put before us and the evidence of DLL. We find that QRS’s account is unreliable.

67. We have also considered the AVO (A3) that has been granted to protect DLL against ongoing intimidation and harassment from QRS. We attach little weight to this evidence as it relates to events post the incident under review.

Section 30 (1) considerations

71. Section 30 of the Act sets out the factors that the Tribunal must consider in determining a review application. We shall consider each in turn.

(a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.

72. The first incident in January 2015 is of course, serious as it relates to a domestic altercation. Whilst the actions of DLL and XYZ are not condoned in any regard, the level of seriousness when one examines potential outcomes of domestic violence leads us to conclude that this incident is at the lower end of the scale.

73. The second incident of harass and menace by text message is, of course, serious. However, as indicated above, we have taken into consideration the explanation by DLL and the withdrawal of the other allegations made by XYZ with regard to the complaints made to the NSW Police. In that regard, whilst the responses of DLL indicate the use of undesirable language, we accept XYZ’s evidence that she did not feel threatened by DLL in the circumstances.

74. The third incident again represents acrimonious discord which has become physical between the two participants. Such behaviour is serious and not acceptable in any domestic situation. For the reasons we have outlined above, we were not satisfied that the allegations made by QRS are as reliable as the evidence of DLL which we have preferred. We are not satisfied that DLL has intentionally caused any injury to QRS as she alleges. We accept that they did have an argument which at times was physical in nature as described by DLL, but it is at the lower end of the scale of incidents such as these.

75. The cumulation of incidents which have occurred between DLL and his various domestic partners is denounced. However, the level of seriousness of these incidences are not in our mind events that would lead to a finding that DLL is a real and appreciable risk to the safety of children.

(b) The period of time since those offences or matters occurred and the conduct of the person since they occurred.

76. The three incidents occurred between 2015 and 2017.

77. The respondent submits that the effect of the breakdown in the marriage between DLL and XYZ has had on their children is a material factor. The respondent refers to a report of harm made to the Department of Family and Community Services in relation to DLL’s children. That report of harm allegedly related to DLL’s child being distressed in him having access with his mother due to fears of getting in trouble with his father. There are also allegations that DLL pressured XYZ to revoke the Apprehended Domestic Violence Order. We have no evidence to make this finding or find there is any lingering doubt or suspicion that he did.

78. The reports of upset, anxiety and distress of any child in relation to the breakdown of any marriage are, of course, concerning and serious. Unfortunately, the actions of parents as they relate to the breakdown of a marriage are commonly reflected in the wellbeing of children. Whilst it is by no means acceptable that parents have this effect on their children, the explanation as to why this occurs becomes apparent when examining acrimonious marital discord.

79. In the respondent’s written submissions reference is made to complaints being made to the Department of Family and Community Services in March 2016 and 27 June 2017. DLL in his evidence referred the Tribunal to pages 24, 25, 27 and 28 of documents produced in Exhibit R6 by the school counsellor. One of DLL’s children about whom concern is raised in the submissions by the respondent makes comments to the counsellor such as ‘mum smashed my iPad and smashed dad’s iPad’, ‘mum gets angry and comes over to my dad’s house’, ‘my family is fighting they are fighting about my dad’s girlfriend’. In relation to being at both his parents’ houses, DLL’s youngest child refers to it being noisy with lots of people being at his mother’s home and him liking both his mum and dad’s houses the same. On 28 March 2017, DLL’s youngest son told the school counsellor that if it was his choice, he would choose to see both of his parents equally and spoke about missing his mum when he is at his dad’s house and missing his dad when he is at his mum’s house. On 9 May 2017, DLL’s youngest son said that he found his dad’s house more relaxing and calmer recently.

80. DLL submitted that this independent evidence of a counsellor interviewing his younger son should be considered and given greater weight than the allegations made by DLL’s ex-wife and other anonymous callers to the Department of Family and Community Services. In that regard the respondent has referred to a number of complaints made by the Department of Family and Community Services in its written submissions. We accept DLL’s submissions in this regard and find that the independent recording of a school counsellor concerning DLL’s youngest son should be given greater weight than the subjective view of his ex-wife’s complaints made to the Department of Family and Community Services.

(c) The age of the person at the time the offences or matters occurred.

81. DLL was in his late 30s at the time of the offences and the alleged offences

(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.

82. The ages of the alleged victims of the offences are not known.

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

83. The ages of the alleged victims of the offences are not known. DLL’s 8 year old son is alleged to have witnessed the second incident in 2016. However, for the reasons set out above we are not satisfied that that incident occurred.

(f) Whether the person knew or could reasonably have known, that the victim was a child.

84. This factor is not relevant to the circumstances of the application.

(g) The person's present age.

85. DLL is presently aged 41 years.

(h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred.

86. The totality of DLL’s criminal history relates to domestic violence offences and a drink driving offence.

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

87. The likelihood of any repetition of the offences or conduct of DLL is in our view low. Criticism is raised by the respondent in so far as DLL not having put before the Tribunal a risk assessment. However, we have taken into consideration the report of Mr Bradley Jones, Psychologist, dated 5 September 2016. Whilst that report has not been prepared specifically for this application, it does refer to some of the matters which are relevant for our determination. Mr Jones had reviewed the various offences which related to the incidents concerning DLL. We do note however that this report does not take into consideration the third incident which occurred in 2017. Mr Jones opines that based on a comprehensive assessment that DLL poses a low risk for committing future offences. Areas of specific attention with regard to risk for further offending including his symptoms of anxiety, alcohol use and poor emotion coping skills. At the time of his offending in 2016 (the second incident) DLL was found to be suffering an adjustment disorder with anxiety and an alcohol use disorder with moderate severity impacted by a number of factors, including a difficult relationship, the death of a stillborn child and financial matters. Mr Jones recommended an ongoing treatment plan to assist him in dealing with his anxiety. We recognise that the assessment does not specifically relate to DLL’s risk to children.

88. Whilst the third incident did involve matters of alleged domestic violence, for the reasons we have found as set out above, we were not satisfied on the balance of probabilities that the version of events provided by QRS were reliable and should be given significant weight.

(i1) Any order of a court or a tribunal that is in force in relation to the person.

89. There is none known.

(j) Any information given by the applicant in, or in relation to, the application.

90. We have taken into consideration the written submissions and bundle of documents tendered by DLL in these proceedings and referred to above.

(j1) Any relevant information in relation to the person that was obtained in accordance with section 36A.

91. This is not applicable criteria in this matter.

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

92. The Children’s Guardian has submitted no further matters.

Findings

93. We find that DLL gave his evidence in a frank manner. We did not discern anything deliberately untruthful in his evidence, despite us preferring the evidence of the independent witness in relation to the first incident. We accept that DLL was flustered at the time of the argument and his recollection may have therefore been affected. We are satisfied (for the purpose of s27 (4)) that he has complied with his duty to disclose fully to the Tribunal to the best of his ability at hearing.

94. To uphold the respondent’s decision cancelling the WWCCC, we must find that DLL today is a real and appreciable risk to the safety of children.

The Tribunal’s Consideration as to the Allegations

Incident 4 January 2015

95. We find that the incident in which DLL and XYZ were involved occurred as outlined by XYZ’s friend. In our view, the incident occurred in the context of acrimonious marital discord and we accept DLL’s evidence that he was not the instigator of the argument. DLL clearly was aware that he was using profanities in the context of children being within the home and he acknowledged that that conduct was not appropriate. However, there is no evidence before us that any child witnessed this incident or indeed heard the argument between DLL and XYZ. The concerning incident of DLL pushing XYZ with two hands cannot be discounted and is not at all condoned. However, on a scale of severity of offences such as this, the conduct of DLL is at the very low end. The circumstances which relate to this incident do not in our view amount to factors which enable a finding that DLL poses a real and appreciable risk to the safety of children.

The Second Incident

96. We have found that DLL did use a carriage service to menace offend or harass XYZ. We have also found that the conduct occurred again within the setting of acrimonious marital discord. XYZ withdrew all of her complaints against DLL including the more serious allegations. She went so far as to say that she was not in fear of him. In this regard we have particular concern about the validity and accuracy of the complaints initially made by XYZ given that she admits they were made at a time when she became aware that DLL had another girlfriend following their separation. We have found that on the balance of probabilities the alleged incidences (apart from the text messages) did not occur. We have also found that there is no lingering doubt or suspicion as to the more serious allegations occurring. We place little weight on the initial allegations made by XYZ. We have preferred the evidence of DLL and find that the transmission of the text messages do not enable us to make a finding that DLL is a real and appreciable risk to the safety of children.

The Third Incident

97. The evidence of QRS in relation to her version of events in our view is unreliable. Domestic violence is not acceptable by any community standard. However, in this matter, we must be satisfied, on the balance of probabilities, that the conduct of DLL amounts to a finding that he is a real and appreciable risk to the safety of children. We may also find that there remains a lingering doubt or suspicion as to the alleged conduct and consider what weight should be given to that finding in assessing the risk DLL may pose to the safety of children. We find no such lingering doubt or suspicion. We find that DLL does not fit within the category which one could conclude that he is a real and appreciable risk to the safety of children. DLL’s risk to children today and in the future is in our view no greater than the risk of any adult preying on a child.

98. Based on a consideration of all of the evidence, and the cumulation of the alleged incidences, we are satisfied that DLL does not currently pose a real and appreciable risk to the safety of children.

Section 30 (1A) consideration and findings

99. In our view, having regard to the background to the refusal and noting the terms of the decision under review, these provisions apply to this review.

100. The section provides:

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

(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.

101. We have considered the decision of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 which dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:

“73.   The case of CHB v Children’s Guardian[2016] NSWCATAD 214held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.”

102. We accept and have taken into consideration the evidence of DLL and four references from an owner and Director of a child care centre, a Cultural Development and Events Officer of a local Council, a Director of a child related business and a registered Psychologist all supporting his positive involvement with children. Whilst the referees themselves do not specifically say that they would have no issue leaving their children with DLL, such an inference can be drawn in our view given the contents of the references. However, little weight can be attached to the references given they do not acknowledge the nature of the allegations to which DLL was charged.

103. We have considered that the allegations of conduct complained of occurred between 2015 to 2017. Whilst the behaviour of DLL during acrimonious marital discord in terms of physical and verbal behaviour can never be condoned, we are not satisfied that such behaviour extends outside of an isolated marital or relationship breakdown environment. Apart from DLL’s children being at home when he and XYZ had the argument (Incident1), there is no evidence before us that any of the other proven allegations were witnessed by children. In some circumstances the culmination of domestic related violence incidences will amount to a finding that a person poses a real and appreciable risk to the safety of children. This matter does not fit within that category. In having all this information before them, we find a reasonable person would allow his or her child to have direct contact with DLL that was not directly supervised by another person while DLL was engaged in any child related work.

104. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

74.   The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations.

75.   The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police[2014] NSWCATAD 184.The Tribunal also refers to ZZ v Secretary of the Department of Justice[2013] VSC 267where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

105. We find nothing contrary to the notion of the public interest in granting a WWCCC to DLL. We find that DLL’s right to follow his ambition of conducting a child related mobile video game business, contrasted with the protection of children, are in this instance complementary and in the public interest. Such activity would not pose an unjustified risk to the safety of children.

Conclusion

106. For the reasons set out above, we reach the following conclusion.

107. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that DLL does not pose a risk to the safety and wellbeing of children.

108. It therefore follows that the application for review should be allowed and an order made that the decision of the respondent be set aside.

Orders

1. Leave is granted to extend the time for the applicant to file his application seeking review of the decision of the Children’s Guardian dated 2 March 2018 cancelling the applicant’s working with children check clearance to 7 May 2018.

1. The decision of the Children’s Guardian dated 2 March 2018 cancelling the applicant’s working with children check clearance is set aside.

2. The Children’s Guardian shall forthwith reinstate a Working with Children Check Clearance to the applicant known in these proceedings as DLL.

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

Registrar

Decision last updated: 07 November 2019