DXQ v Children's Guardian

[2020] NSWCATAD 56

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DXQ v Children’s Guardian [2020] NSWCATAD 56
Hearing dates:	9 and 18 December 2019
Date of orders:	18 February 2020
Decision date:	18 February 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Organ, Senior Member E Hayes, General Member
Decision:	(1)   The decision of the respondent, made on 12 June 2019, to refuse the applicant’s application for a working with children check clearance is set aside. (2)   In substitution for that decision a decision is made to grant the applicant with a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW - refusal of working with children check clearance – applicant convicted of assault and grievous bodily harm charges – factors to be considered – correct and preferable decision
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Commission for Children and Young People v V [2002] NSWSC 949 BKE v Office of the Children’s Guardian [2015] NSWSC 523 VQB v The Secretary to the Department of Justice [2013] VCAT 789
Texts Cited:	None cited
Category:	Principal judgment
Parties:	DXQ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Lowson (Respondent)   Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent)
File Number(s):	2019/00199287
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 these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Summary

1. The applicant, who is a 37 year old male, applied for a working with children check on 16 May 2017 to allow him to work with children. He was at the time of his application serving an eight year sentence for grievous bodily harm with intent. Following a risk assessment by the respondent to determine if the applicant posed a risk to the safety of children the respondent determined that the applicant did pose such a risk and notified the applicant by letter dated 12 June 2019 that his application was refused.

2. By application dated 27 June 2019 the applicant seeks a review of the decision not to grant him a working with children check clearance.

3. We are satisfied that the applicant does not pose a risk to the safety of children. The applicant’s past offending is a factor that weighs heavily against him if considered in isolation. Nevertheless, we are satisfied that he is remorseful and ashamed of what he has done in the past and has taken many positive steps to change his life.

4. The applicant’s 2012 offending occurred almost 8 years ago and he has not offended since that time. In recent years, he has also taken steps to ensure he does not offend violently again. He has been abstinent from alcohol since 2014, has undergone counselling and now has insight into his past offending. He has developed skills in how to better deal with the stressors in his life, through counselling. Whilst in prison he participated in courses which would assist him to obtain his goal of gainful employment when released from prison. We also accept the applicant has a stable support network of family and he has the offer of employment. These are all factors which weigh in his favour.

5. For these reasons we have decided to make an order that he should be granted a working with children check clearance. Accordingly, we set out our reasons for that decision in detail below.

The statutory framework

6. Section 4 of the Child Protection (Working with Children) Act provides that the “safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”

7. Section 15 (1) of the Child Protection (Working with Children) Act (NSW) 2012 (the Act) provides that the respondent is to conduct a risk assessment of an applicant to determine whether they pose a risk to the safety of children if the respondent becomes aware that an applicant for a working with children check clearance is subject to a risk assessment requirement. A person is subject to a risk assessment requirement if any of the matters in Schedule 1 apply to the person.

8. By reason of Clause 6 of Schedule 1 of the Act a person who has been convicted of offences involving violence or sexual misconduct sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children is subject to a risk assessment requirement.

9. There is no dispute the Tribunal has jurisdiction to hear and determine the applicant’s application: see section 27 of the Child Protection (Working with Children) Act 2012, section 30 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decisions Review Act 1997.

10. In reviewing the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law: see subsection 63(1) of the Administrative Decisions Review Act 1997. The Tribunal may consider material that was not before the Children’s Guardian at the time of the decision not to grant a clearance to the applicant.

11. This means that the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing.

12. In determining this application, the Tribunal has power to affirm, vary or set aside the decision: see subsection 63(3) of the Administrative Decisions Review Act 1997).

13. When determining an application under s 27(1) of the Child Protection (Working with Children) Act, the Tribunal is to have regard to the following matters which are set out in s 30(1) of the Act:

“(a)   the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

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

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

(d)   the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

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

(g)   the person’s present age,

(h)   the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

(i1)   the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(i)   any order of a court or tribunal that is in force in relation to the person,

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

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

(k)   any other matters that the Children’s Guardian considers necessary.”

14. The respondent concedes that nothing arises in relation to Sections 30(1) (i1) ( j 1) in this matter.

15. Further, pursuant to s 30(1A) of the Child Protection (Working with Children) Act, the Tribunal must be satisfied of certain matters before making an order which has the effect of enabling a person to work with children. Section 30(1A) 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.

The criminal offences

16. The applicant’s criminal offences considered by the respondent in the risk assessment undertaken occurred between 2005 and 2012. The applicant’s criminal history is set out at p 341 of Exhibit A1 which is the New South Wales Police Force criminal history-bail report for the applicant. Those offences are summarised as follows:

March 2005 offences

17. These offences arose out of an incident at a club when the applicant was in the company of other males. The victims were three security guards. The applicant was convicted and fined on two counts of assault occasioning actual bodily harm, six counts of common assault, destroy and damage property and failing to quit premises. The applicant was placed on a good behaviour bond for two years.

February 2006 offences

18. These offences also occurred on the premises of a licensed club which the applicant had attended with another male. The applicant was requested to leave the premises and he then assaulted three staff members including punching and kneeing one staff member in the face. The applicant was convicted of actual bodily harm and two counts of common assault. He received a suspended sentence on him entering a six month good behaviour bond with conditions.

April 2008 offences

19. The applicant was convicted of assault occasioning actual bodily harm, two counts of common assault, stalking, intimidating and failing to quit premises. These offences occurred at a hotel the applicant had attended with friends. While there the applicant lifted the skirt of a female staff member and assaulted a security guard who asked him to leave the premises. He received a suspended sentence on entering into a six month good behaviour bond with conditions.

May 2011 offence

20. The applicant was charged under s 11 a(1) of the Summary Offences Act 1988 of using violence to cause fear, was convicted and fined. A charge of common assault arising from the same incident was withdrawn. The Police fact sheet for this incident records that while at a Police station the applicant and a co-accused assaulted a victim in the waiting area of the Police station by pushing and shoving the victim into the corner of the Police station.

May 2012 offences

21. The applicant was charged under s 33 (1) (b) of the Crimes Act 1900 of assault occasioning grievous bodily harm with intent to cause grievous bodily harm. On 14 October 2014 he was convicted of this offence following a guilty plea and was sentenced to eight years imprisonment with a five year non-parole period. He was also convicted of common assault under s 61 of the Crimes Act and sentenced to three months imprisonment to be served concurrently.

22. According to an agreed statement of facts tendered at the applicant’s sentencing the offence occurred at a hotel at around 11pm at night. The applicant became aggressive and kicked a security guard three times on a driveway outside the hotel. The other victim was watching. Shortly after assaulting the security guard the applicant punched the second victim in the face causing the victim to fall backwards on the ground. While the victim was still lying on the ground the applicant stomped on the victim’s face.

23. The applicant was released from prison in October 2019. He remains on parole for a further three years until 12 October 2022.

The applicant’s evidence

24. The applicant gave sworn oral evidence and was cross-examined. He provided a large amount of written material in support of his application including written statements he made to the Children’s Guardian, references from members of the community supporting his application and evidence from his treating Psychologist.

25. The applicant is now 37. He is married and has three young children under the age of 10. The applicant was a first grade rugby league player until he received serious injuries in a motor vehicle accident. Following the motor vehicle accident he is reported to have developed chronic pain, anxiety and depression. He commenced drinking alcohol to excess. He says his offences were committed after he had been drinking heavily.

26. He believes he has turned his life around from the person he used to be at the time of the offences. He no longer drinks alcohol and has undertaken courses and counselling in relation to his use of alcohol and for anger/aggression management. He produced certificates of completion of these courses in support of his evidence. He said he no longer associates with the friends and acquaintances he had at the time of the offences who he recognises as being negative influences in his life. Much of his social life now revolves around his immediate and extended family and he remains close to his mother who he sees regularly as well as his siblings. His family members do not drink.

27. The applicant described himself as being “off the rails” in the past but during his time in prison he said he had the opportunity to look at his life and change. When asked in cross-examination about how he would cope without the restrictions and supports that were available to him while he was in custody he said he believes he is now a different person and is coping well. He gave the example of successfully avoiding altercations with other prisoners while he was in prison although he said he faced frequent provocation from fellow prisoners as part of daily prison life. He also cited his unblemished prison record with no disciplinary issues on his prison recorded.

28. While in custody he was given educational day release to attend TAFE. This attendance was unsupervised although he was required to wear an ankle bracelet for monitoring and was subject to random compliance checks. He completed a Certificate III in fitness and also undertook a computing skills course. Also during his time in custody he completed numerous certifications through the National Rugby League Association (NRL) in different types of coaching skills. Copies of these qualifications were provided by the applicant.

29. The applicant says he has been under significant levels of stress recently due to concerns about his wife’s health. She had a brain tumour removed and is undergoing further testing to see if any further treatment is required. Despite this stress he says he has maintained abstinence from alcohol and has not had the desire to drink. He said the courses he has undertaken on managing anger along with his experiences in prison will enable him to deal with any aggressive behaviour he encounters in future. He said the tactic he employed in prison was to “walk away” from any aggressive behaviour he encountered in others. He also used a range of other strategies and techniques he has been taught such as mindfulness to deal with stressors.

30. The applicant said while none of his victims were children he acknowledged that if children had been present at any of the incidents which led to his criminal convictions they would have been at risk of serious psychological harm.

31. The applicant intends to continue seeing his Psychologist Ms Leontios and he will again be entitled to further free sessions under a mental health care plan in 2020.

32. During his incarceration the applicant was granted day release from prison to assist in coaching and training 16 to 19 year old boys rugby league team on two nights a week and on the weekends in the western suburbs. His attendance at training and games was also unsupervised. The rugby league club was aware he was serving a custodial sentence.

Evidence of Maria Leontios, Psychologist

33. The applicant relies on a report dated 20 October 2019 of Ms Maria Leontios, Psychologist. Ms Leontios also gave oral evidence and was cross-examined.

34. Ms Leontios’ evidence was that she has considerable experience in working with clients who have served custodial sentences. Ms Leontios says the applicant was referred to her by his General Practitioner for treatment of anxiety and depression to assist with his transition from custody to parole. Ms Leontios has been seeing the applicant fortnightly and she confirmed it is intended that these sessions will be ongoing. Ms Leontios says the applicant received both psychological treatment to ameliorate his alcohol and offending behaviour including the EQUIPS Addiction Program. He also undertook TAFE courses in fitness and computing skills and successfully completed those courses. His attendance at those courses was unsupervised on campus as he was allowed educational-release from prison.

35. Ms Leontios said the applicant has experienced two recent traumatic events being the stillbirth of his baby daughter and his wife’s brain surgery following the discovery of a tumour. Despite this Ms Leontios sees it as significant that the applicant has maintained his abstinence from alcohol and maintained treatment gains. She said the applicant accepts that he did have an alcohol problem but no longer sees himself as having one.

36. The applicant’s current lifestyle was seen as a protective factor by Ms Leontios against the applicant reoffending. Ms Leontios has worked with the applicant on what triggered his offending behaviour and strategies he can use when he encounters such triggering events in the future.

37. Ms Leontios considered the applicant was remorseful and accepts responsibility for his actions. She said she explored with him of the gravity of the impact of his offending behaviour on the victims and their families and believes he is genuine in his remorse for this.

Character and work references

38. The applicant provided a large number of written references. Each of these referees speak highly of the applicant and refer to their awareness of his convictions and incarceration. We have also considered the material provided by the respondent in the section 58 documents.

39. The applicant provided references from the senior coordinator of a rugby club and from the head coach of the A grade side of that club. Both referees speak highly of the applicant’s involvement with the club as an assistant trainer and mentor. The head coach, who is also the Deputy Principal of a school within a Juvenile Justice Centre, was aware that the applicant was serving a custodial sentence. He says it is important that the applicant, who was valued and well-respected by himself and more widely within the club, be supported in his attempts at rehabilitation.

40. A letter from the Senior NRL Wellbeing and Education Manager sent to the Assistant Superintendent of the correctional facility where the applicant was serving his sentence sets out that the applicant attended a training camp where he spoke about his experiences. The letter says

[DXQ] displayed regret over his actions, remorse for the pain he has caused others including the victim and his family… [DXQ’s] message was not about blaming anyone for his situation but in encouraging others to take ownership of their issues and make the right decisions in life.

41. The author concludes by saying he believes the applicant can make a positive impact on other young people in the community.

42. A report dated 30 January 2018 from the Assistant Superintendent to the Governor of the correctional facility where the applicant was serving his sentence was considered. That report was written for the purpose of recommending external leave for the applicant as part of his community integration. The proposed external leave was so the applicant could assist with coaching and mentoring at a rugby league club. This included attending on match days both at home and away games. That leave was granted. The applicant is described by the Assistant Superintendent as a model inmate. He says

[DXQ] has been tried and tested both in the correctional and outside community environment; his achievements speak volumes for his commitment towards improving the lives of other people, while changing his own life.

43. References from two friends of the applicant state that since his release from prison they have been away on a family camping trip with the applicant and his family. They allowed their small children to be looked after by the applicant while they went out for dinner. The mother of the children said she would have no hesitation in allowing her children to be in the applicant’s company again. One of these friends has known the applicant since they played rugby league together in high school. This referee said he reconnected with the applicant when the applicant commenced working on day release with a junior rugby team at a club where the referee was the head trainer. He described the applicant as a mentor to the young members of the club he worked with which was both on a supervised and unsupervised basis. As the applicant was refused a working with children check clearance he was not able to continue in the role.

44. This referee was instrumental in arranging an offer to the applicant of a training position with a first grade rugby league club junior team where the referee is now a head trainer. He believes the applicant has had a positive impact on the younger players he has come in contact with by sharing his own experiences with them. During the time that the applicant was working at the referee’s previous club the referee said he saw no behaviour in the applicant that would cause him concern.

45. The applicant’s wife’s statement is highly supportive of the applicant’s efforts at turning his life around. She has maintained her support of the applicant throughout his incarceration with both she and their children visiting him most weekends throughout this time. The applicant’s wife also speaks of particular personal trauma she and her family have undergone with the diagnosis of her brain tumour and the loss of a baby at 22 weeks gestation recently.

46. We also heard oral evidence from the head coach of the rugby league club at which the applicant has been offered a 2020 season role as an assistant coach. He was aware of the applicant’s criminal convictions and that he has been released from prison on parole. He said the team that the applicant would work with will consist of players who are 18 or over. It is a requirement however of the club that the applicant have a working with children check clearance in this role as there will at times be younger players using the same training facilities. He has met the applicant and said he was impressed by the applicant’s commitment to furthering his education and rehabilitation. The applicant’s engagement with junior rugby teams while in custody was regarded highly by people the head coach has spoken to in the NRL.

Does the applicant pose a risk to the safety of children?

47. The Tribunal must consider whether the applicant poses a risk to the safety of children, having regard to the factors in s 30(1) of the Act. The test to be applied is whether the risk posed by the applicant is “a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children”: Commission for Children and Young People v V [2002] NSWSC 949 at [ 42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [26].

48. Set out below are our findings in relation to each of the s 30 (1) factors.

The seriousness of the offences and the period of time since those offences occurred (s 30(1)(a) and (b)

49. The offences committed by the applicant were objectively serious. They were committed over a period of approximately eight years. The impact on the victim of the 2012 grievous bodily harm conviction which led to the applicant’s incarceration in 2014 is known to have been serious. The victim sustained serious physical and psychological trauma according to the sentencing judge’s remarks. Overall we find that the objective seriousness of the offences is a factor that weighs against granting a clearance (s 30 (1) (a).

50. It has been nearly eight years since the last offence occurred in 2012. The applicant was incarcerated between October 2014 and October 2019. The uncontradicted evidence before us is that while in custody the applicant undertook educational courses and was allowed to have day release to attend TAFE. He also worked as an assistant coach/trainer and mentor with a rugby league team of 16 to 19 year old males.

51. We consider the length of time since the offences occurred and that the applicant has engaged in pro-social activities since then, including the period in which he was in custody, weighs in favour of the applicant being granted a clearance. (s 30(1)(b)).

The age of the applicant at the time the matters occurred, the age of the victim at the time the matters occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the applicant and the relationship between them, whether the person knew the victim was a child and the applicant’s present age (s 30 (1) (d)-(g) )

52. The applicant was between the ages of 22 and 30 at the time the offences were committed and is now 37. The victims’ ages are not known but none of the victims were children. The offences involved physically aggressive behaviour towards security guards and members of the public who were on the licensed premises where the offences were committed.

The seriousness of the applicant’s criminal record, the conduct of the applicant since the offences occurred, (s30 (1) (h)

53. The applicant has a criminal record which is serious. He has been convicted of a number of offences following guilty pleas. These offences, apart from one, involved aggressive behaviour at licensed premises when the applicant was heavily intoxicated. When convicted of the pre-2012 offences he received bonds which included conditions related to his alcohol consumption and other assistance designed to support him. However the applicant did not avail himself of these opportunities to address his behaviour. His violent behaviour escalated culminating in the 2012 offence.

54. There have been no issues or concerns raised in regard to the applicant’s conduct with children on the material before us. Since the commission of the 2012 offence the applicant has made an effort to engage in pro-social activities in the community. He has also addressed his behaviour and alcohol abuse through education and counselling. It is significant and weighs in his favour that these efforts have occurred in the main during his incarceration. We accept the applicant’s evidence that his record while in prison was blemish free. His evidence on this issue was not contradicted by the respondent. It is consistent with the applicant’s Pre-Release report prepared by the Department of Corrective Services.

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

55. The main risk factor in our view that could lead to the applicant re-offending is if he fails to remain alcohol free. However the applicant says he is committed to remaining abstinent from alcohol. We accept the applicant’s commitment to this goal. He has the support of family and friends. He is motivated strongly by his desire to provide for his wife and children. We also accept the applicant’s evidence that he intends to continue seeing his Psychologist who will continue to provide him with support and strategies for managing stressors in his life. The applicant remains on parole until 2022. He is subject to reporting requirements and supervision including being subject to random drug and alcohol testing. He has the offer of employment on a part-time basis. He wishes to accept this offer and is motivated to succeed in the role offered as he wants to launch a career coaching rugby league at an elite level. He is highly motivated and has a well-considered plan for how he will manage in the community and mitigate the risk of relapse and re-offending. We consider these things are protective factors against the risk of his relapse.

56. Although none of the victims of the applicant’s offending behaviour was a child it is well accepted that children can be the indirect victims of violence. We accept the respondent’s submission that the factual circumstances surrounding the applicant’s criminal offences suggest he had little regard at the time he committed these offences for his surroundings or to who was witnessing his behaviour and offending conduct. There is however no evidence of the applicant ever causing intentional harm to a child.

57. Overall, we formed the view that the applicant was a genuine and credible witness. He was frank in his evidence and demonstrated a very clear awareness and understanding of the impact of his actions on his victims and the potential impact on any child who witnessed this type of violence. We consider the applicant has showed sustained and genuine remorse for his conduct.

58. Having regard to all of the evidence before us we are satisfied that the likelihood of the applicant re-offending in a way that could cause a real and appreciable risk to the safety of children is low.

Information given by the applicant in, or in relation to, the application (s 30(1)(j))

59. We have placed substantial weight upon the evidence provided by the applicant, including the character and work references which are supportive of his application. His treating Psychologist has given written and oral evidence supportive of the applicant efforts to turn his life around and to maintain his abstinence from alcohol.

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

60. The respondent says it is too early to tell whether the respondent will be able to maintain his abstinence from alcohol and not re-offend.

61. The respondent in final submissions maintained the view that the application was opposed. However Counsel for the respondent acknowledged at the time the risk assessment was undertaken the respondent did not have the benefit of the additional written information provided by the applicant to the Tribunal following the first day of the hearing. The respondent also did not have the benefit of the oral evidence given by the head coach of the rugby league club that has offered the applicant a coaching position. Counsel for the respondent said it is not clear if this would have made a difference to the outcome of the respondent’s risk assessment but conceded the additional evidence was supportive of the applicant.

Findings and conclusion

62. There is no statutory presumption that the applicant poses a risk to the safety of children. Having regard to all of the material before us we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children for the following reasons:

1. We find that the applicant’s offending was serious. However, the victims were not children. During his time in custody he showed motivation and commitment to furthering his education and vocational knowledge with a view to obtaining gainful employment on release. Since the last offence committed by the applicant in 2012 there is no evidence of any conduct that could be considered adverse to the applicant.

2. We find the applicant has engaged in pro-social activities while incarcerated and is committed to maintaining his sobriety. He has the support of his extended family including his partner of over 15 years. He is also supported through attendance at regular sessions which will be ongoing with a Psychologist who has particular experience in working with ex-prisoners.

3. Although he has been released from prison for a relatively short period of time he has well-considered and realistic goals for managing his re-integration into the community. He demonstrated positive behaviour throughout his period in custody including when he was on release in the community. He has ceased contact with the individuals with whom he was associating at the time of the offences who were negative influences in his life.

4. He is in a stable long-term relationship with a highly supportive partner. He has a firm offer of employment which he intends to accept if granted a working with children check clearance.

5. He has the support of people in the community who have given written references in support of his application who are aware of his offences and that he has been in custody.

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?

63. Section 30 (1) (A) of the Child Protection (Working with Children) Act 2012 applies to this application. That section provides that the Tribunal may not make an order which has the effect of allowing 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

In VQB v The Secretary to the Department of Justice [2013] VCAT 789 the Tribunal said this 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.

64. 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 the applicant’s criminal history including the conviction for grievous bodily harm against him and that he remains on parole. We are satisfied that a reasonable person would have regard to the fact it is nearly eight years since the last offence committed by the applicant and that he has had an unblemished record while in custody. The reasonable person would have regard to the fact that none of the victims were children. The reasonable person would have regard to the applicant’s abstinence from alcohol since 2014. The reasonable person would also have regard to the applicant engaging in pro-social activities since the offences were committed and that he has the support of his long-term partner and extended family. The reasonable person would be aware of the references given in support of the applicant, his reputation as a valuable football coach and the report of his treating psychologist, Ms Leontios.

65. 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.

66. The Tribunal must also be satisfied of the second part of the test in s 30 (1) (A) that the order is in the public interest.

67. The Tribunal must consider the public interest in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.

68. The applicant has committed serious violent offences against adult males with the most recent offence occurring in 2012. It is not in the public interest that the Child Protection (Working with Children) Act operate where a person does not pose a risk to children, to preclude that person from working or volunteering with children. The applicant wishes to work as a rugby league trainer and mentor. The evidence before us is that he has been motivated and dedicated when undertaking such roles over the last few years. Having regard to the available evidence and our findings that the applicant does not pose a real and appreciable risk to the safety of children, it is in the public interest to make the orders sought by the applicant.

69. For the reasons set out above, we find that the decision of the respondent is not the correct and preferable decision. Accordingly, the appropriate order is to set aside the decision and in substitution thereof make a decision that the applicant be granted a clearance.

Orders

70. For all of these reasons, we make the following orders:

1. The decision of the respondent, made on 12 June 2019, to refuse the applicant’s application for a working with children check clearance is set aside.

2. In substitution for that decision a decision is made to grant the applicant with 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 Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 18 February 2020