DVV v Children's Guardian

[2020] NSWCATAD 237

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DVV v Children’s Guardian [2020] NSWCATAD 237

Hearing dates:

17 October 2019 and 1 April 2020

Date of orders:

1 April 2020

Decision date:

23 September 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C A Mulvey, Senior Member
E Hayes, General Member

Decision:

(1) The decision of the Children’s Guardian dated 18 April 2019 refusing to grant the applicant a working with children check clearance is set aside.

(2) The Children’s Guardian shall grant a Working with Children Check Clearance to the applicant forthwith.

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 [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:

DVV (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
A Douglas-Baker (respondent)

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

File Number(s):

2019/00142648

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) to the applicant, 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 "DVV". DVV 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. DVV applied to the respondent for a WWCCC under the Child Protection (Working with Children) Act 2012 (the Act). DVV seeks a WWCCC in order to undertake paid work with children doing personal training in fitness and boxing and massage therapy.

4. DVV is the biological father of a boy currently aged eight and a half years.

5. DVV has been charged and convicted of a number of violence related offences which the respondent refers to in the decision to refuse to grant a WWCCC to DVV. The detail of each of those offences is set out below.

6. On 4 October 2018, the respondent informed DVV that he was subject to a risk assessment that was to be conducted to determine whether he would be granted a WWCCC.

7. On 10 April 2019, a notice was given to DVV setting out that the respondent was not intending to grant a WWCCC to DVV and his application was refused. The reasons for refusal were because of the seriousness and impact of the offences on the victims, namely, DVV’s then partner. The respondent was satisfied that DVV posed a real and appreciable risk to the safety of children.

8. On 7 May 2019, DVV filed an application seeking administrative review of the decision of the respondent to cancel his WWCCC. DVV relies on his evidence which explains the circumstances pertaining to each of the offences raised by the respondent in coming to a determination to cancel his WWCCC. DVV also relies upon his assertion that allegations of assault raised by his ex-wife were false and the effects of depression and use of alcohol and other medication contributed to his behaviour.

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

10. 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

11. 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 make another decision (in this case an order to grant a clearance): see s 63(3) ADR Act and s 23 of the Act.

Relevant Law and Legal principals

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

13. A person who has had a WWCCC refused may apply to the Tribunal for administrative review of the decision: s 23 of the Act -

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

(1) 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.

14. The Notice refusing DVV’s WWCCC under s23 of the Act was issued on 10 April 2019. DVV’s application for administrative review was filed on 7 May 2019 which means it was filed in accordance with s27(1). DVV 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 DVV 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 DVV 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 ss 14, 15 and 18 of the Act is whether DVV, 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. The Supreme Court of NSW has on many occasions adopted the approach taken in M v M  [1988] HCA 68; 166 CLR 69 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).

22. 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]).

23. 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 DVV, 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.

24. 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.

25. 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’.

26. 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.

27. 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.

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

29. 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.

30. The matter was first listed for hearing on 17 October 2019. DVV made an application for an adjournment which was not opposed. DVV submitted that he required time to obtain a risk assessment report to support his substantive application.

31. We granted the adjournment and re-listed the substantive hearing on 1 April 2020.

Evidence

Documents

32. A joint court book was filed by the parties marked ‘Exhibit 1’.

33. DVV relies the following written material:

• Application filed 7 May 2019

• Statutory declarations of DVV 14 September 2017 and 10 October 2018

• Various references

• Report of Steve Johnson – psychologist 3 February 2020

34. The respondent filed the following written material

• Bundle s.58 documents 7 June 2019

• Further bundle s.58 documents 29 July 2019

• Second further bundle s.58 documents 30 August 2019

• Documents produced under summons – Steve Johnson

35. DVV appeared in person. The respondent was represented by Counsel. All parties particiapted by telephone.

36. DVV gave oral evidence and was cross-examined by the respondent’s counsel. Written submissions were relied upon by each party and supplemented with oral submissions.

The trigger offences

37. The respondent relied upon the following history of offending in determining to refuse to grant DVV with a WWCCC.

38. On 4 September 1997, DVV was charged with assault occasioning actual bodily harm but the charge, though found proved, was dismissed outright pursuant to s556A of the Crimes Act 1900 (NSW) (Crimes Act). A COPS record of the NSW Police Force records that on 11 April 1997, while an employee, DVV went into the lunchroom at his employer’s premises and assaulted the victim, an older work colleague, by punching him in the head. As a result, the victim reportedly sustained a cut to his ear requiring 5 stiches.

39. On 11 February 2008, DVV was convicted, fined and disqualified from driving for a period of six months for two driving offences:

1. driving with mid-range prescribed concentration of alcohol; and

2. exceeding the speed limit by more than 30 kilometres per hour but less than 45 kilometres per hour.

40. On 12 June 2008, DVV was convicted of driving while disqualified and fined and disqualified from driving for two years.

41. On 24 July 2008, DVV was charged with stalking or intimidate intending to cause fear of physical or mental harm pursuant to s13(1) of the Crimes (Domestic & Personal Violence) Act 2007 (NSW) (Crimes (DPV) Act). The offence was alleged to have occurred on 24 July 2008 and the victim was DVV’s sister, WC, who was pregnant at the time.

42. The police facts disclose that on 24 July 2008, DVV, who was then residing with WC having nowhere else to live, was told by her that she wanted him to move out. DVV allegedly refused to leave and WC said she would call the police, to which DVV responded “Good call the fucking police”. WC then walked towards the telephone and DVV said, “If you call anyone you’ll be dead on the ground coz I’ll cut your head off”. WC responded, “What you’re going to kill me when I’m pregnant and have got two kids?” and DVV replied “Yes.” She ran out the front door into the neighbour’s house and called the police. DVV was apprehended by police standing out the front of the house.

43. On 30 March 2013, DVV was convicted of negligent driving and of failing to give particulars to the owner of damaged property and was fined and ordered to pay court costs. He was also convicted of driving with mid-range prescribed concentration of alcohol and fined and was disqualified from driving for a period of three years. On appeal, DVV was disqualified for a period of twelve months.

44. On 27 December 2016, DVV was charged with one count of common assault domestic violence related pursuant to s61 of the Crimes Act. The assault was alleged to have occurred between 1 May 2015 and 30 September 2015 and the victim was DVV’s partner “KL”. DVV pleaded not guilty and was found not guilty (after a hearing) and the matter was dismissed.

45. DVV was also charged with assault occasioning actual bodily harm domestic violence related pursuant to s59(1) of the Crimes Act. The assault was alleged to have occurred on 16 July 2016 and the victim was again KL. DVV pleaded not guilty and was found not guilty (after hearing) and the matter was dismissed.

46. DVV was further charged with stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence) pursuant to s13(1) of the Crimes (DPV) Act. The offence was alleged to have occurred on 11 December 2016 and the victim was KL. DVV pleaded not guilty but was convicted and entered into a two year recognisance pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Crimes (Sentencing Procedure) Act).

47. The alleged facts of the offences with which DVV was charged and which are referred to in paragraphs 46 to 47 above are set out in the statements provided by KL, and two persons alleged to be witnesses to aspects of the alleged facts, FS and EL. KL stated that she and DVV commenced a relationship toward the end of 2013 and in December 2013 they moved in together with DVV’s then two year old son staying with them every second weekend and every Wednesday night. KL alleged that around the time the couple were living together, DVV became violent. Once a week he would scream at her, call her names (‘dirty slut’), made threats (‘I’m going to kill your family’) and when he was agitated would walk around the house and spit everywhere. KL described DVV as someone who did not regularly drink but stated that when DVV did drink he drank to excess. KL also described DVV as a gambler and alleged DVV threatened suicide but KL appeared to have attributed this to DVV’s medication at the time, which he then ceased except for Zoloft. KL described ‘rage incidents’ and receiving accusatory text messages from DVV. On one occasion in 2014, she described when DVV came into the bedroom and started hitting her hard with a pillow yelling ‘pillow fight pillow fight’. The incident appears to have been the subject of an application for an Apprehended Violence Order made on KL’s behalf by the police in late 2014, early 2015. KL said at the beginning of 2015 DVV tried therapy and in May 2015 they got engaged.

48. In mid-2015 an incident occurred where KL was travelling with DVV, FS and EL in a taxi. DVV had an argument with FS and when KL intervened DVV was alleged to have headbutted KL. There were other incidents but the pair were married in early 2016. In June 2016, KL found DVV was spending thousands of dollars in poker machines and she described episodes of rage, abuse and threats.

40. In July 2016, the pair attended a birthday party at KL’s sister’s house. KL said DVV and her sister were both intoxicated and had an argument, and although the pair appeared to reconcile, KL’s sister became nasty and so KL said: ‘Time for us to go home’. When the pair arrived at home, KL claimed DVV got a beer from the fridge which she confiscated and poured down the sink. DVV got another beer and there was an altercation when KL tried to take if off DVV. KL said that she tried to get away from DVV and in doing so ripped his shirt. KL alleged that DVV grabbed her and slammed her against the timber floor, slammed her head into the coffee table and squeezed her neck and then shoved her face down into the leather lounge and she could not breathe. KL said DVV was verbally abusing her.

41. KL then got up quietly to go to her room and lock herself in. She took photographs and sent them to her brother-in-law who told her to get into a taxi. KL claimed that she had sustained a massive lump on her head and bruise on her cheek, her lips and nose were swollen and there was bruising under her eyes.

42. On 13 July 2017, DVV was convicted of driving with mid-range prescribed concentration of alcohol and was fined and bonded to accept the supervision of the Parole Service and an interlock device was imposed.’

Other relevant information considered by the respondent

52. In a number of pre-sentence reports which were before the Court relating to the above offences DVV is referenced to have been suffering from depression and was taking regular antidepressant medication in order to manage his symptoms. He attended anger management group sessions with Relationships Australia. DVV received treatment through Veterans and Veterans Family Counselling Service initially in 2013 and then re-engaged with the service in 2015. In addition to Post-Traumatic Stress Disorder, DVV was also diagnosed with anxiety and depression in 2000. He engaged with a psychologist for 8 months to address emotional and gambling issues, combined with pharmacological treatment.

53. DVV and KL separated in 2016. Following the separation Federal Circuit Court proceedings were commenced. On 1 November 2018, Judgment was delivered in relation to proceedings, being access to DVV’s then 6 year old (nearly 7 year old) son. DVV did not attend the hearing, despite being represented by Counsel and a solicitor. A Family Report was tendered in evidence before the Federal Circuit Court.

54. The report included references from KL speaking of difficulties and violence within the relationship with DVV. There was a lengthy history of alcohol use and drink driving and the Family Report writer expressed concerns about DVV’s alcohol consumption. The Judge found that the only appropriate order was for DVV’s son to spend no time with his father.

DVV’s evidence

55. Two Statutory Declarations have been prepared by DVV dated 14 September 2017 and 10 October 2018. DVV asserts that his son has never been at risk in his care and the alleged charges were fabricated by his ex-wife to cause him harm and they did not involve his son at all. DVV denied that he was found guilty of assault towards his partner and said that at the time she was attacking him and he had to restrain her. DVV asserts that his ex-wife complained to police six months after the particular event in order to prevent DVV from obtaining a property settlement between them. We accept this evidence.

56. In relation to the events concerning the night of his sister-in-law’s party, he asserts that it was KL who was physically violent with her sister. He says they went home that night, DVV put his son to bed, read him a story and then sat down on the lounge with a drink. DVV says it was KL who became violent with him and ripped his shirt. In relation to the AVO matter concerning DVV’s sister, he asserts that it was never his intention to carry out the threat and he would never have hurt his sister. We have accepted DVV as a reliable witness. We have considered his version of events, however, we are unable to make a positive finding either way in regard to this alleged altercation.

Our findings

57. In relation to the 22 September 2017 offence of stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence) occurring on 11 December 2016, we have reviewed the Magistrate’s findings in relation to the first and third charges. We find the evidence in relation to the first charge is somewhat confusing and therefore no positive finding can be made that DVV assaulted KL as alleged. In relation to the third charge, we accept that DVV did behave in an intimidating manner towards KL and was at a minimum intimidating her by sending a text message which, as the Magistrate observed, DVV should not have sent to anyone, particularly not his wife, KL.

58. We note that DVV was intoxicated at the time of these events which does not excuse his behaviour. However, we take into consideration his explanation that DVV’s evidence was that he sought to restrain KL as he was conscious that his six year old was in the house when they were arguing and fighting.

59. We have taken into consideration a long history of DVV engaging in consuming excessive amounts of alcohol and gambling which are indicative of addiction. A significant praecipe of these activities is contained in the documents produced by a service provider of which DVV first accessed services in January 2013.

60. Despite a robust cross-examination, we accept DVV as a reliable witness.

Evidence of Mr Stephen Johnson, Psychologist

61. A report of Mr Stephen Johnson, Psychologist, dated 4 February 2020 is relied upon by DVV. The report was prepared following 6 hours of face to face interviews, together with the benefit of the material filed both by DVV and the respondent in these proceedings. Mr Johnson also has personal knowledge and direct observation of DVV over a period of four years in particular in his workplace engaging with children and adults as a personal trainer and boxing coach and also taking classes led by DVV.

62. Mr Johnson administered the Adverse Childhood Experience questionnaire (ACE questionnaire) to measure childhood adversity, trauma, neglect and abuse. As a result of administering that test Mr Johnson opines that DVV suffered adverse childhood experiences in his early years, including violence, humiliation, bullying, neglect, alcohol and drug use (by parents and carers) and disrupting living, schooling and care arrangements. Mr Johnson further opines that those childhood experiences contributed to a ‘significant degree’ to the adversity that DVV encountered in his adult life. Mr Johnson concurs with the assessment of DVV’s treating doctor that these experiences have left DVV with ‘difficulty in emotional regulation, prone to emotional outbursts’. Mr Johnson considers that as a result of DVV’s childhood and teenage adversity he experienced certain intimate relationship scenarios as ‘challenging’. This is exacerbated by both DVV’s and his partner’s alcohol consumption and subsequent reasoning impairment experienced by both DVV and his intimate partners. Mr Johnson acknowledges that DVV was ‘heavily medicated with prescription drugs for anxiety, depression, PTSD, bipolar disorder and borderline personality disorder’.

63. Mr Johnson opines that there is no material before him to conclude that DVV was a risk to his son’s overall wellbeing. Mr Johnson was critical of the Family Report writer’s views about DVV’s mental health and alcohol consumption on his son’s wellbeing, and the writer was not noting any concern about the mother’s own mental health issues which, in Mr Johnson’s view, would have been relevant.

64. Mr Johnson says that ‘Based on his discussions’ with DVV, that DVV is now ‘acutely aware of the detrimental role excessive alcohol consumption has played in his life to date’ and of the ‘role of alcohol … in his criminal convictions’. Mr Johnson says that DVV has almost stopped consuming alcohol.

65. In conducting a risk assessment, Mr Johnson finds that DVV does not pose a risk to children. Mr Johnson’s report is one which has been prepared by Mr Johnson who is not, in our view, an independent expert witness. The report must therefore be taken with some caution in the respect that Mr Johnson has been involved with DVV through his fitness and gymnasium business, rather than DVV approaching and contacting Mr Johnson for an independent expert report. On the whole we treat the opinion of Mr Johnson as a non-independent witness with certain professional expertise who is in a position to make some informed observations of DVV’s work with children, including the positive effect he has had on some of Mr Johnson’s clients, whom Mr Johnson has referred to DVV. In this regard, Mr Johnson has referred adolescent clients to DVV for assistance in their own emotional wellbeing and development.

66. Mr Johnson was cross-examined and we find him to be an honest and reliable witness.

Various character references

67. DVV has included in the material before us many references which support him continuing in his chosen vocation, providing a fitness service to adolescent youth, including boxing. Whilst those references provide matters which are favourable to DVV’s character and his involvement with children, each of the referees do not specifically set out a full history and knowledge of the trigger offences. In that regard the weight we can attach to those references is limited. Notwithstanding this limitation, the favourable attestment to DVV’s character is a positive factor.

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. DVV’s criminal history includes multiple incidents (both proven and alleged) of violence and intimidation against adults between 1997 and 2016. As identified by the respondent, DVV’s history does not disclose that any child has been a direct victim of his alleged violence. However, on DVV’s own statement, his son was in the family home at the time of the violent altercation between him and KL in 2016. In addition, DVV has a history of verbal abuse, angry outbursts, emotional dysregulation, suicidal ideation and alcohol abuse which are factors relevant to our consideration.

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

70. DVV’s most recent offence is alleged to have occurred in July 2016. That history discloses psychological and emotional vulnerabilities as well as alcohol abuse as apparent triggers or destabilising factors relevant to his behaviour. As recently as July 2017, DVV was apprehended by police for driving under the influence of alcohol. His consumption of alcohol is a relevant factor in our consideration.

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

71. DVV was in his mid to late thirties at the time of the alleged offending.

(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.

72. Each of the victims were adults. There is evidence to suggest that DVV’s two year old son was present in the home during the events of 2016.

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

73. DVV was approximately the same age as his work colleague, his sister and his partners concerning those events. DVV is 34 years older than his son.

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

74. DVV’s partners were adults but DVV knew his son was a young child.

(g) The person's present age.

75. DVV is currently 40 years of age.

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

76. The total criminal history of DVV is set out above.

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

77. We are satisfied that the likelihood of any repetition by DVV concerning the related offences is low. We have taken into consideration (according the weight referred to above) the matters set out by Mr Johnson. It is evident to us, and from DVV’s own evidence, that he has now undertaken significant steps in relation to dealing with his excessive alcohol consumption and a gambling addiction.

78. Notwithstanding this intervention, if DVV were to repeat any of his physical violence, intimidation or verbal abuse in the presence of a child, such conduct would pose a risk to the emotional and psychological wellbeing of a child.

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

79. Not applicable.

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

80. No further submissions were made, apart from those raised above.

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

81. No further submissions in addition to matters raised above.

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

82. No further submissions were made.

Our consideration

83. It is without doubt that DVV has had a chequered history of events involving alcohol fuelled acts of violence, both within and outside of a domestic setting. Notwithstanding the varying offences with which DVV has been charged, we find that DVV has established on the balance of probabilities that he does not pose a risk to the safety and wellbeing of children. We accept the positive references that have been provided in support of DVV continuing in his chosen profession which involves a fitness centre and working with children. Whilst domestic violence is never excusable in any circumstance, we accept that DVV was not on each and every occasion the instigator or sole participant. DVV’s use of alcohol, which we accept he has now significantly reduced, was a major contributing factor in his offending. Having accepted his evidence as to his realisation and insight into how alcohol affects his behaviour, we are satisfied that the likelihood of him reoffending in similar circumstances is low.

84. We have taken into account the fact that DVV has not been the subject of similar offending since 2016. We have also taken into consideration the last alcohol related offence concerning DVV was in 2017.

85. We have taken into consideration the submissions of each party and the respondent’s position that the Children’s Guardian neither consents to nor opposes the application before us. In doing so, we find that DVV is not a real and appreciable risk to the safety of children.

Section 30 (1A) consideration and findings

86. Given our finding that DVV is not a real and appreciable risk to the safety of children, these provisions apply to this review.

87. 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.

88. 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 214 held 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.”

89. We accept and have taken into consideration the various references in support of DVV continuing in his chosen vocation of providing a fitness programme for adolescent children.

90. We have considered the conduct of DVV concerning the trigger offences. Having regard to the nature and seriousness of the trigger offences, and DVV’s conduct since those offences, including the professional psychological help he has sought, we are satisfied that in having all this information before them, we find a reasonable person would allow his or her child to have direct contact with DVV that was not directly supervised by another person while DVV was engaged in any child related work.

91. 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 267 where 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.

92. We find nothing contrary to the notion of the public interest in granting a WWCCC to DVV. We find that DVV’s right to follow his ambition to be a fitness and boxing coach is in this instance complementary and in the public interest. Such activity would not pose a risk to the safety of children.

Conclusion

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

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

95. 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. The decision of the Children’s Guardian dated 18 April 2019 refusing to grant the applicant a working with children check clearance is set aside.

2. The Children’s Guardian shall grant a Working with Children Check Clearance to the applicant forthwith.

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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: 23 September 2020