DNI v Office of the Children's Guardian

[2019] NSWCATAD 102

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DNI v Office of the Children’s Guardian [2019] NSWCATAD 102

Hearing dates:

27 February 2019

Date of orders:

05 June 2019

Decision date:

05 June 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Leal (Senior Member)
A Limbury (General Member)

Decision:

1. The decision of the respondent dated 29 June 2018 to cancel the applicant’s working with children check clearance is set aside.
2. In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance.

Catchwords:

CHILD protection – Working with children – No real and appreciable risk – Sporting coach - Daughter and stepson removed from family home follow assault by applicant’s wife on stepson - Daughter later restored to the applicant and his wife - Relevance of unproven allegations of sexual assault made against the applicant.

Legislation Cited:

Child Protection (Working with Children) Act 2012

Cases Cited:

Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143
VQB v The Secretary to the Department of Justice [2013] VCAT 789

Category:

Principal judgment

Parties:

DNI (Applicant)

  Office of the Children’s Guardian (Respondent)

Representation:

Counsel:

 

P Boncardo (Applicant)

 

A Douglas-Baker (Respondent)

 

Solicitors:

 

Neil Jones Solicitor (Respondent) CHECK

  Crown Solicitor (Respondent)

File Number(s):

2018/234752

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in this proceedings is prohibited. (section 64(1)(a) of the Civil and Administrative Tribunal Act 2013)

REASONS FOR DECISION

Summary

1. The applicant, a 58-year-old man who has a nine-year-old daughter and fourteen-year-old stepson, has been a sports coach for both adults and children for over forty years. On 29 June 2018, his working with children check clearance was cancelled following an assault on his then eleven-year-old stepson by the boy’s mother.

2. In cancelling the clearance, the Children’s Guardian also had regard to the following:

1. complaints made to the police in 1995 in relation to inappropriate behaviour by the applicant in his capacity as a sporting coach;

2. allegations that the applicant had sexually assaulted a woman in 1998;

3. the applicant’s convictions for drink driving in 1995 and 2001; and

4. notifications made to the Department of Family and Community Services in relation to the applicant’s stepson.

3. The applicant is now seeking a review of the decision by the Children’s Guardian to cancel his working with children check clearance. In accordance with the non-publication order made by the tribunal, the applicant will be referred to as DNI.

Issues

4. The main issue for determination is whether the applicant poses a real and appreciable risk to the safety of children.

5. If we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children, we then need to consider:

1. whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children; and

2. whether it is in the public interest to grant the applicant a working with children check clearance.

Does the applicant pose a real and appreciable risk to the safety of children?

6. To engage in child-related work in NSW, a person must hold a working with children check clearance. The Office of the Children’s Guardian can grant a clearance unless the applicant is, by virtue of his or her criminal history, a prohibited person. The Children’s Guardian also has the power to conduct a risk assessment of an applicant. Where the applicant is neither a disqualified person nor the subject to a risk assessment, the Children’s Guardian must issue him or her with a working with children check clearance. An applicant who is subject to a risk assessment must also be granted a clearance unless the Children’s Guardian is satisfied that he or she poses a real and appreciable risk to the safety of children. (s5B and s18 of the Child Protection (Working with Children) Act 2012) In determining an application and considering whether the applicant poses a current risk to the safety of children, the Tribunal must explicitly consider the factors set out in section 30 (1) of the Child Protection (Working with Children) Act.

7. In October 2017, the Children’s Guardian placed an interim bar on the applicant before proceeding to cancel his working with children check clearance in June 2018. The Children’s Guardian had conducted a risk assessment of the applicant following information received from a care agency, which raised concerns regarding the applicant’s child-related employment as a sports coach and his daughter being placed in out-of-home care.

8. On completion of the risk assessment process, the Children’s Guardian found the applicant to pose a real and appreciable risk to the safety of children and cancelled his working with children check clearance.

9. In these current proceedings before the tribunal, the Children’s Guardian is not opposing the applicant’s request for a clearance.

10. In determining whether the applicant poses a real and appreciable risk to the safety of children, we have considered those issues raised by the Children’s Guardian in cancelling the applicant’s working with children check clearance, namely the 2016 assault on his stepson by the child’s mother and notifications made by the Department of Family and Community Services, historical allegations of inappropriate conduct and sexual assault made against the applicant and his two convictions for drink driving.

11. We have then considered these issues in the context of those matters we are obliged to take into consideration, as set out in s30(1) of the Child Protection (Working with Children) Act.

What was the applicant’s involvement in the altercation in 2016, which resulted in his wife being convicted of assaulting her son?

12. In early April 2016, the applicant’s then eleven-year-old stepson presented to police with bruises on his legs, stating that he had been beaten. That night, the applicant’s stepson and the applicant’s daughter were removed from the family home by officers from the Department of Family and Community Services. Notes contained in a COPS event record dated 3 April 2016 state that ‘Police do not believe that the youngest child should have been removed by [the Department of Family and Community Services.]’

13. The applicant’s wife pleaded guilty to having assaulted her son and in July 2016 was convicted and given a twelve-month good behaviour bond. No charges were laid against the applicant who had consented to an interim apprehended violence order on a without admissions basis. That order was withdrawn and dismissed in 2017. It is therefore surprising that almost two years after the applicant’s wife’s conviction and a year after the applicant’s interim apprehended violence order was withdrawn, the Children’s Guardian, in its decision to cancel the applicant’s working with children check clearance on 29 June 2018, wrote that ‘the matter that triggered the risk assessment is of a serious and violent nature whereby the complainant alleged [the applicant] physically assaulted him’ without clarifying that his wife had pleaded guilty to the charge and that the applicant himself had never been charged.

14. In oral evidence before the Tribunal, the applicant denied having assaulted his stepson on that evening in 2016. He confirmed that he had tried to separate his wife from his stepson and had then removed his wife and daughter from the house to calm the situation down. In hindsight, it is his view that he should have instead taken both children out of the house with him and left his wife at home. In his evidence, the applicant stated that he had apologised to his stepson for not having been a greater support to him and now understood how he could have managed the situation better.

15. In his affidavit dated 21 January 2019, the applicant explained his actions on the day in the following terms:

At the time of the assault, my instinctive reaction was to remove [my daughter] from the situation as she had not seen her [m]other like that before, and I did not want her to see her like that. I did so by taking [my daughter] and [my wife] in the car and driving away from the house, where [my stepson] remained. I now know that I should have similarly protected [my stepson]. I believe I failed [my stepson] by not protecting him and supporting him as a father should do. At the time, I knew I needed to separate [my wife] from [my stepson] due to her volatile state. With hindsight, I now recognise that I should have done this by taking [my stepson] with me in the car instead of [my wife]. I had little time in which to make a decision and, with hindsight, I realise I made the wrong decision on the day….I should have protected [my stepson] when he needed me the most. I should have also provided [my stepson] his need from a father which is to protect him to spend time with him and give him emotional support.’

16. The applicant’s wife confirmed that her husband had in fact tried to restrain her to keep her from striking her son. She described a difficult time in adjusting to life in Australia with two young children, having left behind a large and supportive extended family in her country of birth. Her behaviour towards her son in 2016 came in the context of her inability to cope and the long hours she and her husband were working to sustain their sport coaching business. She told the Tribunal that she has since benefitted from counselling to learn better coping and anger management strategies.

17. In April 2017, final orders were made in the Children’s Court allocating parental responsibility to the Minister for Community Services for the applicant’s stepson and daughter. In October 2018, the Department of Family and Community Services conceded that the daughter should be restored to the care of the applicant and his wife. Given his desire not to return to his stepfather and mother, the applicant’s stepson was not restored to their care.

18. In restoring the applicant’s daughter to the care of the applicant and his wife, the presiding magistrate, Hogg CM, made the following observations:

I have also got the advantage of being pointed in this direction in the Court room. I am able to observe the parents. I do so in every care proceedings. I make a particular effort to ensure that I assess the dynamic of the mother and the father. This is a dynamic of strength, it is a dynamic of ambition towards being the best parents they possibly can having learnt what they have learnt…To say that I was impressed by them in the evidence that they gave is an absolute understatement. They are two of the most impressive parents that have given evidence in any care case that I have presided over….Obviously the generic statement of concern is we have got to do what is best for the child. .The view that I take about that is a really overwhelming one. I think this child really needs to be restored to the care of her mother and father. It is not a matter in the case of balancing possibilities, it is a matter of necessity in my view.

19. In referring to the decision by the Children’s Guardian to cancel the applicant’s working with children check clearance, Hogg CM, described it as an extraordinarily unfair decision based on the evidence that was placed before the Office of the Children’s Guardian. In particularly, Hogg CM took issue with the Children’s Guardian for taking into consideration material received from the Department of Family and Community Services stating that the applicant’s stepson had presented to police ‘with bruising on his legs and a sore head and made disclosures that he had been hit with hands and implements, kicked, punched and pushed by his mother and [the applicant] due to having an untidy room.’ Hogg CM found this information to be false ‘because there is not one iota to suggest that…the father had anything to do at all with any physical injury, any physical disciplining of the child on that day. Not one iota of evidence. Certainly not before me.’

20. On the evidence before us, we are satisfied that at no time did the applicant assault his stepson in 2016. We accept that the applicant now has greater insight into how he might better have supported his stepson and protected him from his wife, namely by leaving the house with both the stepson and the applicant’s daughter rather than instead leaving with the applicant’s daughter and wife and leaving the stepson in the home by himself.

21. It has now been almost three years since the assault and in this time, we are satisfied that both the applicant and his wife have taken greater steps to improve their parenting skills, such that late last year, the applicant’s daughter was restored to their care. The applicant has since undertaken counselling (both individually and as a married couple) and completed parenting courses. He has also apologised to his stepson for not having better protected him on the day of his assault by his mother. We accept the applicant’s evidence that his relationship with his stepson is now a more open and understanding one.

Has the applicant behaved inappropriately towards children in his capacity as a sports coach?

22. In 1995, a complaint was made to police that while coaching students, the applicant had said to students ‘give us a smooch’ and that he had hit the children with a tennis racket. No charges were ever laid. The applicant denies hitting his students with a tennis racquet, and requesting a ‘smooch’ from his students. On the evidence before us, we accept this to be the case.

23. The applicant agrees that he threatened to smooch his students but stated that he had no intention of kissing them: it was simply his way of mucking around with them. In oral evidence before the Tribunal, the applicant acknowledged the inappropriateness of the remark and we accept his evidence that he has since changed his behaviour.

24. In light of the applicant’s oral evidence to us, we also accept that he has gained insight into his behaviour and is aware of the importance of maintaining appropriate boundaries when coaching children. We accept his oral evidence that whenever he has been coaching children the rules include that on court no-one – student or coach – is to touch anyone with a tennis racquet; students are not allowed to touch each other and coaches are not to touch the students except to assist them with their grip on the racquet.

25. We give weight to the fact that in a career spanning forty years, there is no evidence before us that there have been any other complaints about the applicant in relation to any inappropriate conduct towards his coaching students.

26. Given that the complaints were made over twenty years ago, the applicant has since modified his behaviour and has not had any further complaints made against him, we give little weight to those complaints made in 1995 in considering whether he currently poses a real and appreciable risk to the safety of children.

What weight should be given to allegations that the applicant sexually assaulted a woman in 1998?

27. In 1998, a woman made a complaint to police that the applicant had sexually assaulted her. Her statement is contained in the materials provided to the Tribunal. The applicant denied the allegation stating that the sexual activity between them had been consensual.

28. Also contained on file is a statement by the applicant’s female flatmate who had encountered the complainant after the alleged assault and whose evidence was not supportive of the allegations made by the complainant.

29. No charges were laid in relation to the allegations and we note the concession of the Children’s Guardian that these unproven allegations have no direct relevance to the issue of risk to the safety of children. We also note the disclaimer in the relevant COPS information report that ‘these are non factual/unconfirmed pieces of information and that caution should be taken using this type of information as a basis of a Risk Assessment.’

30. Documentation prepared in 1998 by the Chief Inspector for the Prosecuting Services South of the NSW Police Services in relation to the alleged sexual assault state, in part:

I have carefully considered the information contained in these papers…I further note that the investigating police have reached the conclusion that the complaint was false…These papers have been referred to this office for advice as to whether sufficient evidence is available to charge [the complainant] with public mischief. In my opinion, the more appropriate change to be considering is one of false accusation under the provisions of s314 of the Crimes Act…It would be incumbent on the prosecution in any charge of either public mischief or false accusation to prove beyond a reasonable doubt that the allegations by [the complainant] were false. Whilst there is certainly a strong inference disclosed in these papers I am on the opinion that at the present time there is insufficient evidence to justify [the] commencement of proceedings.

31. In an affidavit dated 23 May 2018, the applicant confirmed that he had been interviewed by police in respect of a sexual assault said to have occurred in 1998, that he fully assisted the police and participated in an electronically recorded interview. He confirmed that he was not charged with any offence and was cleared by police. He further stated that ‘at no time have I ever sexually assaulted any person.’

32. We agree with counsel for the Children’s Guardian that on the material before us, we can make no positive finding that the sexual assault occurred. Nor does the material before us give us a lingering doubt as to the incident. On this basis, we give no weight to the allegations.

What weight should be given to the applicant’s convictions for drink driving?

33. In 1995, the applicant was convicted of a mid-range PCA offence (exceeding the Prescribed Concentration of Alcohol in the blood) for which he was fined and disqualified from driving for nine months.

34. In 2001, the applicant was convicted of a high-range PCA offence (exceeding the Prescribed Concentration of Alcohol in the blood) for which he was placed on a bond for two years and disqualified from driving for two years.

35. In an affidavit sworn on 21 January 2019, the applicant stated that following the 2001 conviction, he stopped drinking alcohol and remains abstinent. We accept the applicant’s evidence in this regard.

36. Given that it has now been eighteen years since the applicant’s conviction for the high-range PCA offences, over twenty years since the mid-range PCA offence and given that the applicant has been abstinent for more than sixteen years, we give little weight to the applicant’s convictions for PCA offences in considering whether he currently poses a risk and appreciable risk to the safety of children.

What weight can been given to notifications made to the Department of Community Services in relation to the applicant’s stepson?

37. In 2010, a notification was made to the Department of Family and Community Services that the applicant’s wife had assaulted her son (the applicant’s step-son). It is accepted that at the time of the notification, the Department of Community Services considered the applicant to be a protective factor for the boy.

38. In 2011, a notification was made about the applicant’s parenting capacity at the time and his failure to be an appropriate protective ally to his son.

39. In the seven and a half years that have elapsed since this notification, the applicant has undertaken a series of parenting courses. In his decision to restore the care of the applicant’s daughter to the care of the applicant and his wife, the Children’s Magistrate, Hogg CM, described the applicant and his wife as having developed insight into the needs of their children, lauding them as being ‘two of the most impressive parents that have given evidence in any care case I have presided over.’

37. In her report dated 7 October 2017, the applicant’s psychologist Ms Smith noted that the applicant had displayed consistent motivation, insight and capacity to improve the quality and nature of the relationship with his family members and that he presented as a man with social and emotional intelligence who has reflected upon the patterns and dynamics that had developed in his family interactions and has actively and consistently engaged in modifying his behaviour.’

38. In light of the steps taken by the applicant to improve his parenting and gain insight into the needs of his daughter and stepson and the positive assessments of his parenting as provided both by Hogg CM and the applicant’s psychologist, we give little weight to the 2010 and 2011 notifications by the Department of Family and Community Services as an indicator of the applicant’s current risk to the safety of children.

What weight can be given to the interim apprehended violence order made against the applicant in 2016?

42. There is no dispute that an interim apprehended violence order was made against the applicant in 2016, continued with the applicant’s consent on a ‘without admission’ basis and subsequently withdrawn and dismissed in 2017. No charges were ever laid against the applicant in relation to the event that precipitated the making of the interim apprehended violence order against the applicant, namely the assault on the child not by the applicant, but by his wife.

43. An assessment by the forensic psychologist, Ms Lucas, did not reveal any violent predisposition in the applicant. In her report dated 7 October 2017, the psychologist, Ms Toni Smith, described the applicant as having no signs or symptoms indicative of a psychological or psychiatric disorder and as having ‘a high degree of resilience and calmness’.

44. Given that the interim apprehended violence order was continued by consent, was withdrawn in 2017 and that there is no evidence before us that the applicant has a propensity for violence, we give little weight to the making of the interim apprehended violence order in our assessment of the applicant’s current risk to the safety of children.

Consideration of the s30(1) matters

45. As set out above, in determining this application and considering the question of risk, we must explicitly consider the factors set out in section 30 (1) of the Child Protection (Working with Children) Act. The evidence will be considered under each of the following subheadings.

The seriousness of any matters that caused a refusal of a clearance or the imposition of an interim bar. (s30 (1)(a))

46. The matters that led to the imposition of the interim bar and the subsequent cancellation decision were the removal of the applicant’s daughter and stepson from the family home, the allegations of sexual assault on an adult female, allegations of impropriety in respect of the applicant’s students and two convictions for drink-driving. In light of the evidence before us, we agree with Counsel for the Children’s Guardian that we cannot make a positive finding in relation to the sexual assault allegations made against the applicant and that these unproven sexual assault allegations have no direct relevance to the issue of risk to the safety of children.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b))

47. It has been three years since the applicant’s wife assaulted her son in 2016, twenty-four years since the complaints made in relation to students; twenty-four years since the applicant was convicted of the mid-range PCA offence and eighteen years since he was convicted of the high-range PCA offence. We accept the applicant’s evidence that following the allegations of inappropriate behaviour towards his coaching students, the applicant modified his behaviour and has not been the subject of any further complaints. We also accept the applicant’s evidence that he has been sober since his 2001 high-range PCA offence. We are satisfied on the evidence before us that since 2016 the applicant and his wife have taken enormous steps to improve their parenting style and that their daughter has now been restored to their care.

The age of the person at the time the matters occurred (s30(1)(c))

48. The applicant was in his mid-fifties at the time of the 2016 events of 2 April 2016, and in his mid-thirties at the time of the matters in relation to the applicant’s students.

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 (s30(1)(d))

49. The applicant’s daughter was aged six and his stepson was aged eleven at the time of the events of April 2016. The children were under the applicant’s care at the time and dependant upon him for their physical, emotional and psychological needs.

50. The tennis students were aged nine and eleven and were under the applicant’s authority in 1995 when the complaint was made against him.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e))

51. The applicant is more than forty years older than his stepson and daughter and approximately twenty-five years older than the tennis students who alleged the applicant’s inappropriate behaviour towards them.

Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f))

52. The applicant knew that his stepson, daughter and the relevant tennis students were children.

The person's present age (s30(1)(g))

53. The applicant is currently 58 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s30(1)(h))

54. The applicant has two convictions for drink-driving, the first in 1995 and the second in 2001. We accept his evidence that he gave up alcohol after the second offence and has remained sober from this time.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30(1)(i))

55. In her report dated 21 June 2018, the forensic psychologist, Ms Anne Lucas, found that the applicant does not present a real and appreciable risk to children. In oral evidence before the Tribunal, Ms Lucas confirmed her assessment of the applicant that he presents no greater risk to children than any adult in the general population

56. Since the Children’s Court care proceedings were instigated in 2016, the applicant has undertaken parenting courses and individual and marriage counselling.

57. The applicant’s treating psychologist, Ms Smith, found that the applicant did not display any signs or symptoms of a psychological or psychiatric disorder and noted that the applicant ‘has displayed a high degree of resilience and calmness in response to the removal of his daughter and stepson.’ Ms Smith describes the applicant as ‘a man with social and emotional intelligence who has reflected upon the patterns and dynamics that had developed in his family interactions and has actively and consistently engaged in modifying his behaviour.’

58. According to Ms Smith:

Throughout our consultations, [DNI] has impressed as an insightful man with high social and emotional intelligence. He has displayed high and consistent motivation and capacity to address the issues of concern and to develop skills and strategies to improve his relationship with all members of his family. In the many hours that I have spent with [DNI] I have come to know him as a gentle, well intentioned man and saw nothing to indicate that he would intentionally cause harm to members of his family, or the community. I see no evidence to suggest that his entitlement to work with children should be revoked.

59. In relation to the applicant’s motivation to improve his parenting style, Ms Smith found that:

[DNI] has reported examples and instances of positive changes in the pattern of relating with all members of his family, an understanding of how unhelpful dynamics had developed, a resolution of difficulties in both his family of origin and nuclear family and a sophisticated insight and knowledge of how to engage in more functional behaviours now and upon family reunification. He reports an ongoing desire to participate in a therapeutic relationship to maintain and consolidate his gains over the longer term.

60. Having heard from the applicant by way of oral evidence and in the material contained in his affidavits, we are satisfied that since his wife’s assault of her son in 2016, the applicant has gained enormous insight into his stepson’s needs and has realised his former shortcomings in protecting the child from his mother’s then volatility. We are satisfied on the evidence that the applicant and his wife have undergone extensive counselling to improve their relationship and to enable them to parent as a unit.

Any order of a court or tribunal that is in force in relation to the person (s30(1)(il)

61. The applicant is currently subject to undertakings given to the Children’s Court last year following the restoration of their daughter to their care.

Information given by the applicant in, or in relation to, the application (s30(1)(j))

62. No further information has been provided by the applicant.

Any relevant information in relation to the person that was obtained in accordance with section 36A (s30(jl)

63. No further information has been provided to the Tribunal.

Any other matters that the Children's Guardian considers necessary (s30(1)(k))

64. The Children’s Guardian neither opposes nor supports the applicant’s application.

Conclusion on section 30(1) matters

65. The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, he must be granted a working with children check clearance.

66. For the reasons set out above, we accept the applicant has addressed deficiencies in his parenting and that he has gained insight into the needs of his children. He and his wife have worked hard to improve their parenting skills and have been successful in having their daughter restored to them.

67. Following a complaint over twenty years ago of inappropriate behaviour towards coaching students, we accept the applicant modified his behaviour and has not since been the subject of complaint as a sporting coach. Given that the applicant has remained sober since his second PCA offence we are satisfied that he is a man prepared to modify his behaviour and his alcohol consumption. For the reasons set out above, we give little weight to either of these matters in considering whether the applicant poses a current risk to the safety of children.

68. For the reasons set out above, we give no weight to the allegations of sexual assault made against the applicant in 1998.

69. We accept the assessment of the forensic psychologist, Ms Anne Lucas, that the applicant poses a low risk to the safety of children.

70. On the basis of the evidence before us, we find that the applicant does not pose a real and appreciable risk to the safety of children.

Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work? Is it in the public interest to make the orders sought by the applicant?

71. Section 30 (1A) of the Child Protection (Working with Children) Act 2012 applies to this application. It provides that the Tribunal may not make an order which has the effect of enabling the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that:

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

2. it is in the public interest to make such an order

72. The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires:

the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.

73. In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a “reasonable person” would need to know that:

1. following his wife’s assault on her son, both the son and their daughter were removed from the care of the applicant and his wife;

2. the daughter was restored to the care of the applicant and his wife late last year;

3. in response to his PCA convictions, the applicant modified his drinking;

4. in response to a complaint in 1995 regard his coaching, the applicant modified his behaviour and has not been subject to a subsequent complaint; and

5. the applicant has been assessed by the forensic psychologist, Ms Anne Lucas, as posing no more risk to the safety of children than a member of the general community.

74. Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work.

Public interest

75. In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143,at [24]-[26] the Victorian Court of Appeal considered the meaning of the term “public interest” in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said:

“[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]:

The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.

[25]  In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’. The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.

[26]   The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.”

76. For the reasons set out above, we are not satisfied that the applicant poses a risk to the safety of children. Indeed, rather than being responsible for the assault on his stepson that precipitated the cancellation of his working with children check clearance, we are satisfied that the applicant took action to try to separate his wife from the child to stop her assault on him. Having regard to the material before us, we are satisfied that it is in the public interest to make the orders sought by the applicant. This is particularly in regard to the contribution he has made, and has to make, in sport coaching using an expertise gained over his lengthy period as a coach. We agree that sport promotes a sense of community and also promotes health and wellbeing.

Decision

77. For the reasons set out above, we are satisfied that the applicant does not present a real and appreciable risk to children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make such an order.

Orders

1. The decision of the respondent dated 29 June 2018 to cancel the applicant’s working with children check clearance is set aside.

2. In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance.

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

Registrar

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

Registrar

Decision last updated: 05 June 2019