DQL v Children's Guardian

[2020] NSWCATAD 204

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DQL v Children’s Guardian [2020] NSWCATAD 204

Hearing dates:

17 April 2019, 25 November 2019 and 8 April 2020

Date of orders:

18 August 2020

Decision date:

18 August 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C A Mulvey, Senior Member
P Foreman, General Member

Decision:

The decision of the Children’s Guardian made 19 February 2016 refusing to grant the applicant a working with children check clearance is affirmed.

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)

Children (Criminal Proceedings) Act 1987

Children and Young Persons (Care and Protection) Act 1998

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Crimes (Personal and Domestic Violence) Act NSW 2007

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 [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 DirDQLor 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:

DQL (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
E Graham (Respondent)

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2018/00355055

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 refusing to grant a Working with Children Check Clearance (WWCCC) made on 19 February 2016, 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 "DQL". DQL is the applicant's pseudonym used in these proceedings in conformity to an order made pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013.

3. On 4 September 2014, DQL applied for a WWCCC under the Child Protection (Working with Children) Act 2012 (the Act). The WWCCC application was refused by letter dated 19 February 2016.

4. The respondent conducted a risk assessment, pursuant to s15(1) of the Act as clause 1(2)(f) of Schedule 1 of the Act applied to DQL necessitating a mandatory assessment requirement to be commenced. DQL was charged with offences pursuant to section 13 Crimes (Personal and Domestic Violence) Act NSW 2007 (two counts) – ‘stalk/intimidate intending to cause fear of physical/mental harm’ (the ‘trigger offence’) - and one count of breaching an Apprehended Violence Order (AVO), committed on 28 November 2012. DQL’s criminal history also indicates a pattern of charges and convictions for offences including violence which would have triggered the respondent’s risk assessment pursuant to clause 1(6) of Schedule 1 of the Act.

5. On 14 January 2016, DQL was invited by the respondent to provide further information in response to the respondent serving a Notice of Proposed Refusal of Application of his WWCCC. DQL did not provide any further submission to the respondent.

6. On 19 February 2016, the respondent issued DQL a notice refusing to issue him with a WWCCC pursuant to s20 of the Act. The following reasons were provided in support of the refusal of the WWCCC application:

• Over a period of 2008 to 2013 DQL committed violent and threatening offences in a domestic setting against his father, a pregnant woman, his siblings, sibling’s partner and a colleague. DQL’s criminal history indicates a charge with child related offence in 2012, namely stalk/intimidate with intent to cause physical/mental harm, against a 17 year old female and her child whereby threats were made to harm both parties by DQL.

• Further offences of common assault in 2013, stalk/intimidate intend fear of physical/mental harm in 2013, stalk/intimidate intend fear of physical/mental harm in 2011, stalk/intimidate intend fear of physical/mental harm in 2011 and assault occasioning actual bodily harm in 2008.

• The culmination of these unprovoked and pattern of violent offending led the respondent to determine that DQL posed a risk to the safety and wellbeing of children.

7. On 16 November 2018, DQL filed an application seeking administrative review of the decision of the respondent to cancel his WWCCC. DQL relies on his evidence which explains the allegations raised by the respondent forming information used to cancel his WWCCC.

8. The issue for us to determine is whether, as at the date of hearing, we can be satisfied DQL does not pose a real and appreciable risk to the safety of children and whether he should be granted a WWCCC to work in child related-work.

9. After consideration of all the evidence, we decided to affirm the decision of the Children’s Guardian to refuse DQL’s application for a WWCCC. The reasons are set out below.

Jurisdiction of the Tribunal

10. 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 s 63(1) Administrative Decisions Review Act 1997 (NSW) (ADR Act). 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 s 63(3) ADR Act and ss 18(2) and (3) of the Act.

Relevant Law and Legal principals

11. The jurisdiction of the Tribunal under Part 4 of Act is protective and not punitive in nature as set out by the Court in: 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.

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

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

(2) A person who has been refused a working with children check clearance by the Children's Guardian 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.

13. The Notice refusing DQL’s WWCCC under s20 of the Act was issued on 19 February 2016. DQL’s application for administrative review was filed on 16 November 2018 which means it was not filed in accordance with s27(1) of the Act. However, the Tribunal granted leave for DQL to file his application out of time on 25 January 2019.

14. DQL must fully disclose to the Tribunal any matters relevant to the application; s27(4) of the Act.

15. In this administrative review, neither party bears the onus of proof. There is no presumption that DQL 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.’

16. 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 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”.

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

18. The issue for us as required by s 18(2) of the Act is whether DQL, on the balance of probabilities, poses a risk to the safety of children. Young CJ in Commission for Children and Young People 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”.

19. 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.

20. 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’.

21. 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.”

22. 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).

23. For clarity the Court in M v M 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 regard to the factors mentioned in Briginshaw’ (M v M at page 76).

24. It is well established that a three step approach to assessing a risk under the Act has been endorsed by the High Court in M v M requiring the Tribunal to first decide whether or not it is satisfied on the balance of probabilities that an allegation is true (and, if it is so satisfied, then it proceeds to determine the case on the basis that it is true) or, if not, whether or not it has ‘no hesitation in rejecting the allegation is groundless’ (in which case it proceeds to determine the case on the basis that the allegation is untrue), Children’s Guardian v CFW (2016) NSWSC 1406 (at [14]).

25. The third step requires the Tribunal in reaching neither of the satisfactions set out above with respect to an allegation, is still obliged to consider questions of risk that may be indicated by all the facts, CFW at [15]. All the facts include the fact that an allegation has been made and facts relevant to assessing the weight of the allegation. Even if an allegation, or set of allegations, is not proven on the balance of probabilities, if ‘a lingering doubt or suspicion remains’ then this should count against DQL, CFW at [16]. This has been taken to mean that if it is proven to an extent sufficient to give rise to a sufficiently large concern about the consequences if the allegation or set of allegations is true then a risk within the meaning of the Act will exist and the application for a clearance should be refused.

26. In Children’s Guardian v CKF (2017) NSWSC 893, Justice Davies agreed that the correct approach to risk is outlined by the High Court in M v M and the discussion referred to by Justice Beech-Jones extracted above.

27. In Office of the Children’s Guardian v CFW (2016) NSWSC 1406, Justice Harrison discussed how the Tribunal could consider events when the Tribunal had a lingering doubt or where suspicion remained. Justice Davies accepted there was a three step process and the only point of departure was whether doubt ‘counts against the defendant or is … simply a matter to be considered’.

28. The New South Wales Court of Appeal in Tilley v Children’s Guardian (2017) NSWCA 174 considered that a number of similar allegations, in different locations, and from apparently entirely independent complainants is material upon which the Children’s Guardian and the Tribunal are entitled to act, or more practically, may lend some weight to other risk factors.

22. 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.

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

24. 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

32. DQL filed the following written material:

• Application filed 16 November 2018 and attached bundle of documents (A1)

• Letter of applicant filed 4 March 2019 (A2)

• Letter of applicant filed 17 April 2019 (A3)

• Statement of applicant, 27 September 2019 (A4)

• Report of Jenny Howell, 27 September 2019 (A5)

33. The respondent filed the following written material:

• S58 documents filed 8 February 2019 (including a replaced bundle 17 July 2019) (R1)

• S31 documents from Family and Community Services (FACS) filed 2 April 2019 (R2)

• S58 documents filed 31 January 2020 (R3)

34. DQL appeared in person. The respondent was represented by Counsel.

35. During the hearing, DQL gave oral evidence and was cross-examined by the respondent’s counsel. Written submissions were relied upon by Counsel for the respondent. Each party also made oral submissions at the conclusion of the hearing.

Procedural background

36. The matter was initially listed for hearing on 17 April 2019. It became apparent that DQL had not filed any expert evidence in terms of a risk assessment having been conducted. The Tribunal adjourned the matter for further hearing on 27 September 2019 and made directions for the filing of further evidence.

37. On 2 September 2019 the Tribunal made further directions for the filing of evidence and vacated the hearing date listed for 27 September 2019. A new hearing date was set for 22 November 2019.

38. It appears from the Registry file that the hearing date of 22 November 2019 was vacated and re-listed for hearing on 25 November 2019. DQL gave evidence and was cross-examined. Ms Jenny Howell was called to give evidence. Following Ms Howell taking the oath she indicated that she was in a difficult position as she had a conflict of interest. She said she has treated an alleged victim of DQL. When Ms Howell completed the risk assessment report for DQL she said she was not aware of this but she could no longer hold to her opinion. She was excused. No cross-examination of Ms Howell took place. We adjourned the hearing to allow DQL to reassess his application before the Tribunal. As set out below, the Tribunal attached no weight to the report of Ms Howell.

39. The hearing recommenced on 8 April 2020 where the parties made oral submissions.

DQL’s background

40. At the time of hearing DQL was 34 years of age. He is an Aboriginal man who is close to completing a TAFE course, being a Certificate IV in Alcohol and Other Drugs. As part of that course DQL requires a WWCCC to complete a placement. DQL has no children of his own.

41. As a young child DQL was cared for by his grandparents. From about the ages 2 to 10 and after his biological parents separated, DQL went to live with his father in Queensland. He started using cannabis from 10 years of age. DQL returned to Sydney where he attended school in the local area where he lived and continued to use cannabis on a daily basis from about 11 years of age. In addition to using cannabis, DQL consumed alcohol and would regularly be involved in family fights where police became involved. He began drinking heavily at the age of 16. When he 18 years old he continued to use alcohol and cannabis regularly, as well as ecstasy and amphetamines.

42. At around the age of 21 years, DQL moved between his parents’ homes and the home of his grandparents. His days were taken up with drug and alcohol use. DQL witnessed and was involved in domestic and physical violence over a long period of time through his teenage and early adult years. From 2016 DQL made attempts to turn his life around, he ceased using drugs and alcohol and enrolled in the Certificate IV in Alcohol and other Drugs course at TAFE which has prompted this application.

DQL’s criminal history

43. DQL’s criminal history involves multiple charges and convictions for violent and stalking/intimidation offences, including in the presence of children, dating back to 2008.

Trigger offence - two counts stalk/intimidate intend fear of physical/mental harm (2012).

44. DQL was charged with two counts of stalk/intimidate intend fear of physical/mental harm and one count of contravening an Apprehended Violence Order concerning an incident on 28 August 2012. Two of these charges were withdrawn, but he was convicted of one count of stalk/intimidate intend fear of physical/mental harm, and was sentenced with an 18 month s9 bond pursuant to the Crime Sentencing (Procedure) Act 1999 on 23 April 2013.

45. A summary of the facts relating to the incident on 28 August 2012 involves DQL attending the Parramatta Local Court. He was served with an Apprehended Domestic Violence Order (ADVO). On that day, DQL approached the daughter of the protected person in relation to the ADVO outside of the Court. DQL is alleged to have made verbal threats to the protected person and her daughter, pointing his finger at the protected person’s daughter and said words to the effect ‘I’m going to blow up your mum’s car with you and your daughter and your little sister in it. I’m going to blow up your house. I’m going to find out where you live.’ Later that day, as the protected person’s daughter was leaving the Court, DQL is alleged to have approached her and kicked the wheel of the stroller she was pushing which contained her 6 month year old daughter.

46. The protected person’s daughter was 17 years of age at the time and as set out above she had her 6 month year old daughter in her pram. DQL was charged with breach of an ADVO and was referred into the Magistrates Early Referral Into Treatment (MERIT) programme on 21 November 2012.

47. DQL pleaded guilty to this offence at Hornsby Local Court on 23 April 2013. He was sentenced to a s9 good behaviour bond pursuant to the Crimes (Sentencing Procedure) Act 1999 for 18 months. This incident is an assessment requiring trigger pursuant to clause 1(2)(f) of Schedule 1 of the Act.

Other offences

48. DQL was charged with assault occasioning actual bodily harm pursuant to s59(1) of the Crimes Act 1900 relating to an assault which occurred on 13 June 2008. The victim of that assault had an argument with DQL at a railway station in Sydney. DQL punched the victim in the mouth with a closed fist. DQL was heavily intoxicated at the time of the assault and was sentenced to a good behaviour bond for 18 months pursuant to s9(1) of the Crimes (Sentencing Procedure) Act 1999 on 7 November 2008.

49. On 24 September 2009, DQL was charged with using offensive language, carrying a knife in a public place and remaining on a restricted area of a station. He was fined $100 for each of the two offences and committed a breach of the bond imposed in relation to the 2008 offence.

50. On 14 April 2011, DQL was charged with stalk/intimidate and custody of an offensive weapon. He had gone into the residence of a lady to insist on speaking with his brother. He had a small bat and a silver metal object in his hands and said he wanted to see his brother he was going to ‘smash him’. He was found guilty of the offence and placed on a 2 year good behaviour bond pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 on condition of supervision by Probation and Parole to attend alcohol and drug counselling and anger management.

51. On 24 April 2013, DQL was called before the Hornsby Local Court on breach of the bond for this offence. He was sentenced to a 7 month suspended sentence requiring supervision for that period by Probation and Parole.

52. Following further offending and breach of the same bond DQL was imprisoned for 7 months commencing 13 July 2013 and concluding 12 February 2014 with a non-parole period of 3 months.

53. On 26 July 2011, DQL pleaded guilty to the offence of stalk/intimidate and was placed on a 12 month good behaviour bond in relation to an incident involving his brother on 16 April 2011 where he was heard by police multiple times saying, ‘I’m going to kill my brother’.

54. On 13 July 2013, DQL’s father and his partner attended a bowling centre. DQL entered the bowling centre and verbally abused his father challenging him to a fight. DQL punched his father to the left cheek with a closed fist. DQL’s father applied for and was granted an ADVO. DQL was convicted of common assault on 26 July 2013 at the Blacktown Local Court. He was sentenced to 12 months imprisonment commencing 13 July 2013 with a 3 month non-parole period.

55. On 28 January 2017, DQL was charged with bring/introduce prescribed poison into a place of detention relating to an incident on 29 November 2016. It is alleged DQL attended a prison to visit his brother and attempted to pass a balloon containing Buprenorphine. DQL made full admissions to the police about his conduct and pleaded guilty where he was sentenced to a s9 12 month good behaviour bond pursuant to the Crimes (Sentencing Procedure) Act 1999 on condition of supervision by New South Wales Probation and Parole Service.

The evidence of DQL

56. As set out above, DQL was not legally represented during the hearing. We, as much as possible, assisted DQL through the hearing process and granted him additional liberties in terms of his evidence.

57. DQL admitted that he has a long history of violence and offending which he said was caused by excessive alcohol and substance abuse from a very early age. He set out a detailed history of a dysfunctional family life moving from home to home and having parents who were not great role models which also contributed to his offending. DQL did not deny any of the offences referred to above, but at times during his oral evidence and throughout the cross-examination he was unable to recall some of the offences. Particularly, the offences which related to DQL kicking the stroller and intimidating those victims outside of Court, DQL had no specific recollection of these events due to his alcohol and drug use. However, to DQL’s credit, he said the events could have happened as recorded in the documents before the Tribunal.

58. DQL said that he has been sober for 20 months and he has learned to control his anger and avoid confrontation. He contrasted the difficulty he had in his past in controlling his anger where he would seek out confrontation and engage in violent and threatening behaviour in an attempt to deal with his problems. DQL said he is supported through Alcoholics Anonymous and his sponsor, an Aboriginal Corporation and a rehabilitation centre where he participates in various drug and alcohol programmes.

59. DQL said he wishes to work in the alcohol and drug addiction sector to ‘support other people going through what I went through’. He said that the counselling and support he has received has ‘taught me about positive and negative responses to situations. I have learnt about trauma and grief, and learnt the connection between trauma, grief and alcohol and other drugs. I have been healing past traumas. As I was taught respect from my grandparents, I choose to follow that path now. I have been taught how to love and walk away from the negativity of alcohol and drugs’.

60. DQL went on in his evidence to explain that as a child he was rejected by his father and felt unloved. He sought his father’s attention and became involved in family disputes and went about things that were wrong. He says now with the assistance of counsellors and training he has ‘learnt from these mistakes’.

61. DQL was thoroughly cross-examined by Counsel for the respondent. He presented as an honest and reliable witness who freely admitted mistakes of his past and listed the improvements he has made in his life.

62. There was no aspect of DQL’s evidence which in our view affected his credibility in so far as he gave evidence in an honest and forthright manner.

63. We accept the facts surrounding each of the criminal offences which are set out above involving DQL as being true.

The report of Ms Jenny Howell

64. DQL relied upon a report of Ms Jenny Howell, Forensic Psychologist, dated 25 September 2019. For the reasons which are set out above, Ms Howell could not maintain her opinion in relation to the risk assessment she undertook concerning DQL. In that regard we have attached no weight to the report of Ms Howell and do not intend to set out its contents given the position she took during her evidence.

65. DQL did not adduce any other expert evidence.

Character references relied upon by DQL

66. DQL relies upon a number of references attesting to his good character. It is commendable that DQL has shown significant insight into his troubled past, alcohol and drug misuse and violent criminal offences. We note that the references are positive in terms of DQL’s current circumstances. However, we note in one of the references, which has been provided by the CEO of a recovery centre DQL was involved with, states ‘DQL is a very likeable young man who is still in the very early stages of recovery.’

67. We have considered the references provided by DQL in determining this application. The references confirm the steps DQL has taken in recent years to address his substance abuse issues and his interest in commencing further studies and training at TAFE. The references are positive for DQL, however they demonstrate that DQL is in the early stages of his recovery.

Section 30 (1) considerations

68. 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.

69. Whilst the offence on 28 August 2012 against a 17 year old the ‘trigger offence’ was ultimately dismissed, the culmination of DQL’s criminal history reflects a pattern of violent offending, including at times in the presence of children. The events on 28 August 2012, which were not denied by DQL given his faulty memory in relation to drug and alcohol use, are of a serious nature. Particularly, the threats of violence were not just made against adults but also members of their families, including children. We accept that DQL kicked the pram containing a 6 month old child. His inability to control his anger in lashing out and physically kicking a stroller containing a child makes his offending more serious than just verbal threats.

70. We accept the respondent’s submissions that the seriousness of these offences occurring within the premises of a Court is an aggravating factor which heightens the seriousness of DQL’s offending.

71. We have taken into consideration that DQL’s history includes a serious violent attacks on a former co-worker and his father. His history also includes offences of stalk/intimidate involving violent threats made in person or via text message. DQL’s offending occurred in both public places and in people’s private homes where children either were, or, could have been present.

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

72. The ‘trigger offence’ occurred just under 7 years ago. Further offences of violence, common assault on DQL’s father was committed under 6 years ago. DQL has not reoffended since pleading guilty to a non-violent offence in 2016.

73. DQL has taken steps to rehabilitation himself after being released from prison in October 2013. However, his further offending in 2016 reflects a relapse in his rehabilitation. DQL has participated in rehabilitation since actively seeking drug and alcohol services in 2017. He completed a nine and a half month rehabilitation programme in May 2018 and has not been charged with criminal offences since the 2016 offence. The result of this appears to indicate a significant change in DQL’s conduct in respect of his substance use and violent offending through the years 2008 to 2013.

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

74. DQL was 23 when he committed his first offence in 2008. He was 28 when he committed the ‘trigger offence’ in August 2012. DQL was 32 when he committed the November 2016 offence.

(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.

75. The victim involved in the ‘trigger offence’ on 28 August 2012 was 17 years old. It is noted that present at the time of the offence was her 6 month old baby in a stroller. DQL made threats of violence to the victim and her child and kicked the stroller in which the child was contained.

76. In relation to other offences it was not in contest that children were present either in public or in private homes during periods of DQL’s offending.

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

77. The victim of the ‘trigger offence’ was 8 years younger than DQL at the time of the offence. Otherwise, DQL’s victims have either been other adults, which include family members.

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

78. It is unclear whether DQL knew the victim of the ‘trigger offence’ was under the age of 18. However, it would have been clearly obvious that her baby in the stroller was a child.

(g) The person's present age.

79. DQL is currently aged 34 years of age.

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

80. The offences for which DQL has been charged and convicted are set out above. Despite the offences being dealt with in the Local Court, the charges which DQL has been found guilty of are serious and indeed led to terms of imprisonment.

81. DQL’s offending is related to issues of alcohol and substance abuse, his inability to manage anger and situational factors such as family dysfunction or grief.

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

82. It is acknowledged that DQL has taken significant steps to address his own rehabilitation in terms of alcohol and drug abuse and anger management. DQL clearly identifies a combination of all of these as contributing to his violent past. DQL has demonstrated some insight into his conduct through counselling and formal rehabilitation, including his family history being a catalyst for substance abuse and violent past behaviour.

83. However, as we have set out below, we are not satisfied that DQL has demonstrated he is at a point in his recovery where his past failings in terms of serious violent offending have been fully addressed. We are not satisfied the evidence demonstrates that DQL is not a real and appreciable risk to the safety of children.

84. We have taken into consideration DQL’s recent history of having breached good behaviour bonds and having had relapses in substance abuse. We acknowledge DQL has demonstrated a commitment to his rehabilitation from mid-2017 to date. This in our minds is an extremely positive factor in terms of DQL’s rehabilitation. However, we are not satisfied sufficient years have passed to enable a finding that DQL is not a risk to the safety of children. This is also noted by one of his referees mentioning that DQL is in the ‘early stages’ of his recovery.

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

85. There is no evidence that DQL is presently subject to any orders of Court or Tribunal.

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

86. There are no further matters raised in addition to that which is set out above.

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

87. There are no further submissions in relation to these matters apart from what is set out above.

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

88. The respondent made no further submissions other than the summary as provided above.

Section 30 (1A) consideration and findings

89. Given our findings that DQL has not demonstrated that he is not a risk to the safety and wellbeing of children, we have not addressed the additional provisions as set out in s30(1A) of the Act.

Our consideration

90. We recognise that DQL has taken considerable steps in turning his life around. He expresses an honest desire to assist others in the community through his own lived experience. DQL by his own admission has a chequered past with serious violent offending, which includes in the vicinity of children.

91. We had no expert evidence before us to demonstrate on the balance of probabilities that DQL is not a real and appreciable risk to the safety of children. We must ensure that the protection of the interests of children are held paramount. Given DQL’s history and relapse in terms of his rehabilitation in the recent past and having considered all of the facts and circumstances and documentation before us, we find that the decision of the Children’s Guardian made on 19 February 2016 should be affirmed.

Orders

1. The decision of the Children’s Guardian dated 19 February 2016, refusing to grant DQL with a working with children check clearance is affirmed.

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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: 18 August 2020