DYG v Children's Guardian

[2020] NSWCATAD 100

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DYG v Children’s Guardian [2020] NSWCATAD 100
Hearing dates:	28-29 November 2019
Date of orders:	08 April 2020
Decision date:	08 April 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C A Mulvey, Senior Member S Davison, General Member
Decision:	The decision of the Children’s Guardian dated 7 November 2017 cancelling the applicant’s 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) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing) Procedure Act (NSW) 1999 Evidence Act 1995 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BKE v Office of the Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Children’s Guardian v CFW [2016] NSWSC 1406 Children’s Guardian v CKF [2017] NSWSC 893 Children’s Guardian v CXZ [2019] NSWSC 1083 CKF v Children’s Guardian [2017] NSWCATD 6 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 CTM v Children’s Guardian [2016] NSWCATAD 280 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 DAR v Children’s Guardian [2018] NSWSC 942 Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6 M v M [1988] HCA 68; 166 CLR 69 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 R v Commission for Children and Young People [2002] NSWIRComm 101 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Smith v Commissioner of Police [2014] NSWCATAD 184 Tilley v Children’s Guardian [2017] NSWCA 174 ZZ v Secretary of the Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DYG (Applicant) Children’s Guardian (respondent)
Representation:	Counsel: Ms V Hartstein (Respondent)   Solicitors: DYG – Self Represented (Applicant) Crown Solicitor (Respondent)
File Number(s):	2019/00222079
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

1. The applicant seeks administrative review of a decision of the respondent cancelling his Working with Children Check Clearance (WWCCC). The cancellation followed a risk assessment by the respondent (the Office of the Children’s Guardian) on the basis of which the Children’s Guardian 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 "DYG". DYG is the applicant's pseudonym used in these proceedings in conformity with an order made pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013.

3. On 26 August 2016, DYG applied to the respondent to be granted a WWCCC under the Child Protection (Working with Children) Act 2012 (the Act) (‘the first application’). On 8 December 2016, the respondent notified DYG that a risk assessment was being conducted identifying two records in DYG’s criminal history, namely a conviction for common assault and a charge of assault occasioning actual bodily harm dealt with by a court on 15 November 2015.

4. On 29 September 2017, the respondent sent to DYG a Notice of Proposed Refusal to grant him a WWCCC and invited DYG to provide further information which may relate to the risk assessment. Following this process, on 7 November 2017 the respondent issued a Notice refusing to grant DYG a WWCCC under s.20 of the Act (‘the first decision’).

5. DYG made a second application for a WWCCC on 6 June 2018 (‘the second application’). The respondent terminated the second application on the basis that, pursuant to s.13A(1)(a) of the Act, DYG was not entitled to make a further application for a WWCCC until 7 November 2022. The respondent notified DYG of this decision on 7 June 2018 (‘the second decision’).

6. On 12 July 2019, DYG made an application in this Tribunal for a review of the second decision.

7. On 29 August 2019, the matter was listed for directions in the Tribunal. The respondent submitted that NCAT did not have jurisdiction to review the second decision. The Tribunal made orders on that day, including: a note that the parties agree that the decision under review is the decision of 7 November 2017 to refuse DYG’s application for a WWCCC (the first decision); and an order that, by consent, the time for DYG to lodge the application for review is extended to 12 July 2019.

8. DYG relies on his evidence which explains the circumstances pertaining to each of the allegations raised by the respondent in coming to its determination to cancel his WWCCC.

9. The issue for us to determine is whether, as at the date of hearing, we can be satisfied DYG poses a real and appreciable risk to the safety of children and whether we should grant him a WWCCC or affirm the decision of the respondent made on 7 November 2017.

10. After consideration of all the evidence, we decided to affirm the decision of the Children’s Guardian to refuse DYG 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 (the first decision). In undertaking a review, we must determine the correct and preferable decision having regard to the material before us and the applicable law: see Administrative Decisions Review Act 1997 (NSW), s 63(1). Upon determining an application for review we may make orders that include an order to affirm the decision of the respondent, or an order to set aside the decision of the respondent and in substitution thereof making another decision (in this case an order to grant a clearance): see Administrative Decisions Review Act, s 63(3) and the Act, ss 18(2) and (3).

Relevant Law and Legal principals

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

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

“3 Object of Act

The object of this Act is to protect children:

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

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

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

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

14. When conducting a risk assessment, the respondent will consider the matters set out in s 15(4) of the Act. Section 18(2) of the Act requires the respondent to grant a WWCCC if the respondent is satisfied that the person does not pose a risk to the safety of children. However, following such a risk assessment, where the respondent is not so satisfied, the application for a WWCCC is to be refused.

15. Section 5B of the Act defines risk to the safety of children as being “a real and appreciable risk to the safety of children”.

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

17. Section 27 provides:

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

(1) A person whose clearance is refused 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….”

18. The Notice refusing DYG’s WWCCC was issued on 7 November 2017. DYG’s application for administrative review was filed on 12 July 2019 which means it was filed contrary to s27(1). In circumstances where the review application is out of time as prescribed by s.27, DYG can seek leave to extend the time for the filing of the review application. By consent, the Tribunal has granted leave in this respect.

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

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

21. The applicable standard of proof is on 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. 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”.

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

23. The issue for us, as required by s 18(2) of the Act, is whether DYG, on the balance of probabilities, poses a risk to the safety of children. Young CJ in Commission for Children and Young People v V (2002) NSWSC 949 considered the test to be applied is:

“...whether, in all the circumstances, there is a real and appreciable risk, in the sense of a risk that is greater than the risk of any adult preying on a child. One, however must link the word “risk” with the words that follow, namely, to the safety of children”.

24. 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.

25. In determining whether DYG does pose a risk to children it is accepted that the risk must be a real and appreciable risk: see BYR v Children’s Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was); BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J esp. at [26], [27].

26. In exercising our protective jurisdiction and considering the paramount principle in section 4 of the Act, the tribunal in carrying out an assessment of whether DYG is a real and appreciable risk to the safety of children should err on the side of caution if there is a deficiency in information, or if there is doubt created by the available material (BFB v Office of the Children’s Guardian [2014] NSWCATAD 111 at [119].

27. In BKE v Office of the Children’s Guardian [2015] NSWSC 523, His Honour, Justice Beech-Jones, referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[29] InCommissioner for Children and Young People v FZ [2001] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference toBriginshaw v Briginshaw [1938] HCA 34;  60 CLR 336 (“Briginshaw”) in the above passage fromIK(at [68]). I share his Honour’s misgivings.Briginshawwarns 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 inBriginshawwere 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 toBriginshaw’sadmonitions 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 (seeR v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30;  50 CLR 228 at p 256 per Evatt J).

...

[31] InM v Mthe 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 inBriginshaw” (M v Mat 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 inBriginshaw, 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 Mat p 78).

[33] The above passage fromM v Mcontemplates 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 theWorking with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (Vsupra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability ofBriginshawnoted in [29], the reasoning inM v Mis 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.

28. 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).

29. 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. This requires 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). If the Tribunal is not so satisfied, it then must decide 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) - see Children’s Guardian v CFW (2016) NSWSC 1406 (at [14]).

30. The third step requires the Tribunal, where it does not reach either of the satisfactions set out above with respect to an allegation, to consider questions of risk that may be indicated by all the facts - see 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 the applicant - see CFW at [16]. This has been taken to mean that if the allegation cannot be unequivocally dismissed, and sufficient concern remains about the consequences should the allegation (or set of allegations) be true, then a risk within the meaning of the Act will exist and the application for a clearance should be refused.

28. 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.

29. 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’.

30. 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.

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

32. In determining this review application, we must first have regard to the factors set out in s 30 of the Act. Those matters are:

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(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 total criminal record and the conduct of the person since the offences occurred,

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

(i1) 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.

(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.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

36. 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

37. DYG filed the following written material:

• Application filed 12 July 2019 (A1)

• Bundle of references (A2)

• Further reference (A3)

38. The respondent filed the following written material

• Bundle 58 documents – 6 volumes (R1)

39. DYG was not represented. The respondent was represented by Counsel.

40. During the hearing, DYG gave oral evidence and was cross-examined by the respondent’s counsel. DYG called a number of witnesses who were also cross-examined. Written submissions were relied upon by both DYG and the respondent. DYG and counsel for the respondent made final oral submissions.

The allegations of domestic, aggressive and violent incidents

41. The respondent refers to DYG’s history of criminal conduct and a pattern of violent and aggressive behaviour, some of which occurred in the presence of children, starting when he was 17 years of age. It was submitted that these matters are relevant to whether DYG is a risk to the safety to children. That history is recorded as follows:

• 20 March 1994 Queensland charge - unlawful wounding, common assault

• 31 August 1994 - assault occasioning actual bodily harm - convicted fined $500 and witness expenses $685

• 4 May 2005 - assault occasioning actual bodily harm - convicted fined $500

• 24 September 2013 - stalk, intimidate, intend fear physical etc. harm x 2 - found guilty. S.10 bond for 12 months

• 13 January 2014 - contravene restriction in AVO - found guilty. S.9 bond for 12 months

• 15 December 2014 - contravene restriction in AVO, common assault - convicted s.9 bond for 12 months. Assault occasioning actual bodily harm (withdrawn)

• 9 August 2015 - threaten to destroy/damage other person’s property convicted s.9 bond for 12 months

Assault occasioning actual bodily harm conviction - 31 August 1994

42. DYG, in relation to this incident, admitted in the transcript and statements (R1, Volume 1, Tab 2.6) that in September 1992 he became involved in a verbal argument with the victim and on the following day had a physical fight with him. He stated:

‘I took my jacket off and we shaped up and I hit him in the head then he fell down. He got back up and crash tackled me on the road. Then bashed my head on the ground heaps.’

43. DYG said in evidence-in-chief that he and a friend came down from Queensland for a funeral in Northern NSW. He stated that in 1994, there were a lot of fights happening in a local aboriginal mission that he and his friend were watching, a guy called out and said to DYG ‘I want to fight you’. He said he and the other man had a fair fight, and they shook hands afterwards. DYG went to Queensland and was not charged until much later. He said he sustained a broken jaw in the incident.

Conviction of assault occasioning actual bodily harm - 4 May 2005

44. At the time of this assault DYG was a schoolteacher. The facts (Exhibit R1, Volume 1, page 29) only reveal that the victim told police he had been assaulted in his home by DYG and had been punched several times to the head. He was bleeding from the left earlobe, had a red mark below his left eye and skin off his right elbow.

45. DYG could not recall this incident and agreed that he had some impairment and difficulty recalling these events, probably because of his use of alcohol.

Apprehended Violence Order - 12 November 2013

46. An Apprehended Violence Order enforceable for two years was made to protect DYG’s former wife. On 16 November 2013, DYG went to his former wife’s house and called her from inside the house. He then removed a kitchen knife from under a nearby bed and stated that he was going to kill himself. DYG’s former wife fled the home with the children who were present and witnessed the event. When DYG was arrested, he was observed to be bleeding from self-inflected lacerations to his left arm. DYG apparently became violent with police and he continued to be violent at the hospital where he was taken. He was granted bail, a condition of which was that he abide by the AVO which included not to enter his former wife’s home.

47. On 24 November 2013, DYG went to the home of his former wife and would not leave, despite being told to do so. His former wife did not call the police because she did not want to upset the family or cause DYG to become erratic. The following day DYG got into his former wife’s car and went home with her. She did not want to cause any commotion in public. DYG became verbally hostile towards his son which led to his former wife putting the children into the car and they left the home. DYG’s former wife called the police. When the police arrived they formed the view that DYG was moderately affected by alcohol. On 13 January 2014 DYG was convicted of a breach of AVO and directed to enter into a good behaviour bond for 12 months pursuant to s.9(1) of the Crimes (Sentencing Procedure) Act 1999.

Assault of DYG’s daughter – 15 December 2014

48. On 15 December 2014, DYG admitted he assaulted his daughter who was 14 years of age at the time. An AVO was in place protecting DYG’s daughter from him.

49. At about 3.00pm on that day, DYG and his daughter were at home. Present was the mother of DYG and a friend. DYG’s daughter and her mother had a disagreement over using a phone and chores not being done. The mother went for a walk and DYG’s daughter and her friend were in her bedroom. DYG went into his daughters room a number of times and on each occasion an argument ensued about DYG’s daughter not giving her phone to her parents.

50. DYG said his daughter was assaulting his ex-wife. He admitted that he slapped his daughter on the face. She was apparently staying up late and not going to school. She was crying. DYG let her go and left the room.

51. The following week, the police were contacted and attended the home. DYG said he was drinking a bottle of beer near the stove when the Police arrived. The police spoke with DYG and his daughter separately. There was a tiny bruise on her face. DYG’s daughter told the police that her father had hit her the previous week. DYG said he did hit her but only to separate his wife and daughter. DYG said looking back he is not happy about his behavior and not proud of it. He was cautioned about a breach of the AVO. At the time he admitted to having consumed 2 long neck beers.

DYG’s evidence

52. DYG is a proud aboriginal man who is significantly involved with his community. He is a teacher and, at the time of the hearing, was out of work pending a WWCCC.

53. DYG has commenced a new relationship. He described his partner as being grounded and stable. Compared to his previous history, DYG said his life is in a much better place than before. DYG placed considerable emphasis on him returning to his family’s ancestral country and having removed himself from other areas of NSW where he found himself in regular trouble, partly as a result of alcohol and drug use, and mixing with ‘bad’ people.

54. In 1991, DYG moved to the Gold Coast. He was young and had a problem with alcohol and, when intoxicated, he said he was very angry and at times violent. DYG is not proud of his record and said he now recognises his failings as a young man. He said he pleaded guilty in relation to all matters he has been charged with. The consequences have led to fines and incarceration.

55. DYG acknowledged that his record shows ‘a lot of heavy stuff I am not proud of’. He had a difficult upbringing, felt rejection, and described himself as a troubled child. He did not have any role model as to how to be a father. He said he did not know what a mum and dad was. DYG saw a family structure in his (non-indigenous) friends, however, he did not know how he fitted in to his family.

56. DYG was cross-examined in relation to the actions he has taken to address his alcohol dependence and violent responses to situations of conflict. He said he has changed his environment. He has not been back to the mid north coast of NSW for 4 years where much of the troubles occurred.

57. He explained that in 2018, while at a funeral, he was carrying the coffin and heard an old person’s voice saying to him ‘[DYG] it’s enough’. DYG said his sister died from the effects of alcohol. Following the funeral he said he went home and has not had a drink since. He told us that he attends counselling which included a retreat in which he participated last year with the Aboriginal drug and alcohol team. He was asked in cross-examination:

Q: You have only been abstinent for 18 months, why would the Tribunal believe you will continue?

A: They can test me anytime they want. I wish you could see what is in my spirit/soul.

58. DYG also said he had not smoked cannabis for over twelve months. These comments are key in terms of our findings concerning DYG’s credibility.

59. DYG explained he attended counselling with a counsellor GYD, psychologist, with Hunter New England Local Health District. He admitted that until 18 months ago, alcohol was a real problem for him and that most of the serious matters involving violence, damage to property and other related offences involved his excessive consumption of alcohol. He said he lost control and did not have the appropriate coping mechanisms because of his childhood. Alcohol appeared to be an escape for DYG.

60. He was asked by counsel for the respondent what coping skills he had learnt from the counselling sessions. He said he has got himself back home ‘on country’. He had removed himself from ‘bad people’ and has the right support now that he is home. DYG agreed that one of the issues that arises in all the related offences has been a lack of control, losing his temper and lashing out. While not doing any specific course, he told us that he has undertaken a lot of self-evaluation in line with what his grandmother had taught him. He has not undertaken any specific anger management counselling. The following exchange took place between counsel for the respondent and DYG:

Q: Your grandmother has given you the right principles but you failed to look after them up until 18 months ago?

Q: She would not want you to get into fights, if she had known about it, she would be upset?

A: Yes

Q: In terms of anger management, what has happened to make you decide to make the change?

A: I have a supportive partner, I am busy in community, I am a bridge for our community. Does that address my anger, I do not sit around and be angry. I read, I do lots of things.

Q: You said back in 1994 you were angry then as if it was a constant state?

A: I got a job, got a house, gave them a safety environment. My father gave me nothing.

Q: Why do you say that you will not explode into anger (if you say that)?

A: We are bound by policy and procedure in our work environments. I have still got stuff, trauma I am dealing with. I was brought up in a very violent environment. I used to lay on top of my mother to stop dad belting her.

61. Following the evidence of DYG’s treating psychologist (QWE) and drug and alcohol counsellor (JKL), DYG admitted that he lied about not having consumed cannabis in the last 12 months. We granted leave for DYG to explain his prior evidence. He said he has smoked cannabis in the last few months to ‘sort of help me a little bit’. DYG explained that he had been abused by a member of the clergy and had found the strength to give evidence in a criminal trial. It was this event which he says triggered his recent use of cannabis. However, DYG’s evidence was inconsistent with that of QWE and JKL as to when he was using cannabis. We find, based on the evidence of QWE and JKL, that DYG was using cannabis at the time he participated in the drug and alcohol retreat in early 2019, and that his use of cannabis has continued up until the day of the hearing.

62. When questioned about the untruthful evidence DYG gave, he became somewhat aggressive and angry in the witness box. His demeanour changed significantly to when he gave his evidence on the first day of the hearing.

63. DYG’s credibility is significantly affected. His lack of candour taints the reliability of his evidence, particularly as it relates to his progress with not consuming alcohol and drugs which, by his own admission, has been the main trigger to his offending behavior and inability to control his anger, particularly his consumption of alcohol.

64. We cannot be satisfied that DYG is telling the entire truth in relation to his ability to control his emotions in stressful situations, and inhibit his predisposition to lash out or become angry and aggressive. When we contrasted his claims of emotional stability with his longstanding violent history, his continued use of cannabis, and his lack of candour about his drug use, erring on the side of caution, leads us to the conclusion that he is a risk to the safety of children. Of course, this may change in the future if DYG continues to participate in structured counselling to manage his anger and use of alcohol and drugs.

Evidence of FGH

65. DYG called a long standing friend who works in a community support role to give evidence. FGH has known DYG for over 35 years. She said in her evidence that DYG brings to the aboriginal community messages of empowerment and encouragement, and he relays his story and he explains and works with the community on addressing past trauma. FGH was fully acquainted with DYG’s criminal history and struggle with alcohol.

66. She concluded her evidence by supporting DYG being able to work with children and, if granted a WWCCC, she said DYG could have work in a similar area to the work that she does in a non-government organisation family referral service.

67. FGH was confident that DYG had dealt with past trauma including his vulnerability to excessive alcohol consumption. She supported DYG’s evidence that he had been abstinent of alcohol for 18 months.

68. We accept the character reference provided by FGH in respect of DYG. We found her to be a truthful and reliable witness. However, we find DYG’s own evidence concerning drug and alcohol treatment and his use of cannabis, and the reliability of that evidence, is inconsistent with FGH’s assessment of his character.

Evidence of HGF

69. HGF was called by DYG to provide evidence as to his character. HGF works as an aboriginal support co-ordinator. She has known DYG all of her life. HGF is a distant relative of DYG.

70. DYG said she was aware of DYG assaulting his daughter, his threats of suicide with a knife in the presence of children, and the psychological effect such behaviour can have on children. She said that in her opinion DYG is not a threat to children as there is a difference between home and work environments. She did not support the possibility that DYG could respond emotionally in a work situation as he has done in a domestic setting.

71. HGF provided a glowing reference for DYG. The following exchange took place between the Tribunal and DYG:

Q: What is DYG’s reputation in the community?

A: It is proceeded by elders past. He is part of a clan/tribe, that reputation is a good person, a man of integrity, very forthright, passionate which is rare for an aboriginal man.

Q: How do they view his alcohol and violence?

A: He needs to grow up and become a model for cousins, brothers, and others. He has come home now and that is what he is now.

Q: How robust is his change in lifestyle?

A: I believe it is a permanent one, he is much stronger. For example he turned up by himself for the child abuse trial. The only aboriginal man who turned up was DYG.

Q: You saw this as a sign of strength and change?

A: This is him turning up and facing his problems head on. I do not know of any incident where he has injured a child outside of his family. If it happened more than once, he has to deal with that.

72. We accept HGF’s view concerning DYG’s reputation and position in his community and we found her to be a truthful and reliable witness. However, we do not accept her evidence that DYG is able to respond differently in stressful situations at work than at home. We find that her evidence in this regard is based on speculation rather than evidence. There is a lack of evidence that DYG has successfully participated in counselling and that this professional assistance has resulted in him being able to control his anger. Further, DYG’s lack of candour does correspond with the glowing reference provided by HGF as to his integrity.

Evidence of DYG’s drug and alcohol counsellor

73. QWE is a drug and alcohol counsellor who was called by DYG in support of his application. QWE said he has had three counselling sessions with DYG which commenced in early 2019. DYG was referred to QWE through the aboriginal health service. QWE said DYG has always engaged. The main focus of their sessions was around drug and alcohol use. At the time DYG first consulted QWE, he was using cannabis. QWE does not recall DYG saying he was drinking. In their session on the Thursday before the hearing DYG told QWE he was still using cannabis. There was no other drug or alcohol use reported to QWE. QWE said anger management was never discussed in their sessions.

74. We accept QWE as a truthful and reliable witness.

Evidence of JKL – drug and alcohol caseworker

75. DYG called his drug and alcohol case worker JKL to give evidence. JKL has been supporting DYG since DYG participated in the drug and alcohol retreat in early 2019. He believes that DYG stopped drinking alcohol in about October 2017. He was aware that DYG continues to use cannabis. JKL said DYG is a valuable member of the aboriginal community and has a lot to offer. He said getting past alcohol is part of DYG’s change.

76. We accept JKL as a truthful and reliable witness.

Evidence of RTY

77. A long-term friend of DYG was called to give a character reference. RTY played football with DYG in 1992. RTY last had contact with DYG in 2007. From 2012-2016 he may have seen DYG and his children at the park or beach. RTY only became aware of DYG’s criminal history after recently meeting him for coffee.

78. RTY described DYG as a ‘good bloke’ and being ‘good with cultural stuff’. He said he has never seen DYG be aggressive towards children.

79. We accept RTY as a truthful and reliable witness.

Section 30 (1) considerations

80. 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.

81. Each of the relevant offences are outlined above. DYG in no way minimised the seriousness of his conduct. We accepted his frank disclosure about his prior conduct and the affect it has had on his victims. This is despite our findings about DYG’s credit on other matters.

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

82. The first of the assault matters with which DYG was charged occurred in 1994. The most recent charge of stalk/intimidate with intent to cause fear occurred on 14 October 2019.

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

83. DYG was born on 30 May 1972. In 1994 he was 22. In 2019 he was 47.

(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.

84. The victims have been of various ages, however the victim of the 2014 assault was a child, his daughter, and at the time of the assault she was 14 years of age.

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

85. The age difference varied. The difference in age between DYG and his daughter is 28 years.

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

86. Given the assault involved DYG’s daughter, he was aware she was a child.

(g) The person's present age.

87. DYG is now 48 years old.

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

88. DYG has an extensive criminal history beginning in 1988 when he was 17 years of age. The most recent charge recorded on 14 October 2019 was stalk/intimidate with intent to cause fear. DYG was not charged or convicted of any matter during the years of 1993, 1995 – 2004, 2006 – 2011 and 2018. In each of the other years from 1988 – 2019, the following charges and offences are recorded: offensive behaviour; malicious damage; driving whilst unlicensed; state false name; unlawful possession of licence; goods in custody; numerous driving whilst under the influence of alcohol; stealing; receiving; breach of bond; numerous assault occasioning actual bodily harm; resist arrest; drive whilst disqualified; stalk/intimidate with the intention to cause fear; numerous contravene AVO; destroy or damage property; and driving whilst disqualified.

89. Since 2013 there have been a number of domestic and personal violence orders made against DYG, mostly related to alcohol-related violence.

90. On 10 September 2013 DYG, who was living in a block of units, placed some bags and furniture in the car park of another unit in the block. He was asked to move them and told the owner of the car park he would do so the next day. On 14 September 2013, DYG noticed his belongings had been moved into an uncovered car space. DYG was yelling and abusing the owner of the car space. Police were called and formed the view DYG was moderately affected by alcohol and possibly a drug. On two further occasions that day DYG swore at and threatened the victim which required to police to again attend.

91. On 13 December 2015, DYG was asleep in the home of another person. His 16 year old son was also present. DYG woke up and wanted to be driven to a friend’s house. The request was refused. DYG tipped a rubbish bin over the floor of the kitchen and then damaged a wall. The occupant of the home and DYG’s son left in a car.

92. We have taken into consideration a number of incidents that occurred in the last ten years which, while they have not resulted in the laying of criminal charges, have required police intervention. The most relevant of these being an event on 8 November 2013 when police were called to premises where DYG and his ex-wife and children were residing. DYG’s family had left the home in fear of him after he tried to prevent his ex-wife from leaving the house. DYG picked up one end of the lounge and dropped it on the floor on a couple of occasions. One of DYG’s children called on him to not stand in front of the door and thus preventing his ex-wife from leaving (Exhibit R1 Vol 1 page 459-460). We accept that this occurred and this is consistent with DYG’s previous conduct.

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

93. The likelihood of repetition of the offences or conduct of DYG is in our view probable. In his evidence in chief DYG said he had not consumed drugs in the last 12 months. As set out above, DYG was not a witness of truth in this respect. His lack of credibility taints important parts of his evidence. It becomes significant in relation to our assessment of whether DYG is likely to repeat his emotionally charged, violent and aggressive behaviour, including such behaviour towards, and in front of, children. We find, erring on the side of caution, that DYG has not demonstrated that repetition of such conduct is unlikely. He has not undergone specific anger management training and he has been untruthful about his drug and alcohol treatment, which he says was a material factor in his changed capability to control his behaviour.

94. DYG said his criminal history can only be looked at as being poor. He is not proud of his past and placed particular emphasis on the steps he has taken to improve his life. DYG submitted that we should place considerable weight on his evidence that he had self-referred to drug and alcohol counselling which had been effective. However, in our minds, little weight can be attached to this evidence given DYG’s lack of candour when giving evidence on this critical point.

95. By his own admission, much of DYG’s past conduct involved a high degree of alcohol and some drug use. We are not satisfied that DYG has learnt to manage unresolved personal issues from his formative years that drove his substance abuse. Indeed, he continues to take cannabis. We also find that his evidence as to no longer drinking alcohol is uncertain, given our finding about his credibility on the issue of cannabis use. There is also no evidence before us that DYG has attended anger or behaviour management counselling or taken any steps to ensure his violent behaviour does not continue into the future.

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

96. DYG has been charged with stalk/intimidate with the intention to cause fear etc. (domestic). The matter is still pending before the court and is yet to be finalised. DYG provided the following version of events.

97. The incident relates to DYG’s cousin. About 3 weeks prior to the hearing, he said he went down with his partner to pick up his cousins and nephew from a park in northern NSW. DYG’s other cousin was also in the park. DYG alleges his cousin’s children broke into his nephew’s house, stole $7000 and trashed the house. They apparently put the evidence on Snapchat. The alleged theft took place about 7 months ago.

98. DYG’s cousin began yelling abuse at him about the incident which he said he ignored. He then said to her words to the effect: ‘to get any man you would like’. DYG said it is this statement he made which he has since been charged with. DYG said because they are related he believes that is why the charge is domestically related. DYG is defending the charges.

99. In cross-examination DYG said that the reference ‘to get any man you would like’ referred to his cousin coming to his house and bringing with her any man who she wished and discussing the issue as a family. He denied it was a reference to bringing a man to sort it out physically. We are unable to make any positive finding in this regard. However, when the surrounding facts and circumstances are considered, we suspect that this comment related to something more than a mere family discussion.

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

100. We have taken into consideration the written submissions and bundle of documents tendered by DYG in these proceedings. DYG made a statutory declaration dated 11 January 2017. He states in relation to the assault concerning his daughter that he attended the home following a frantic call from his wife. That night he heard his daughter have a physical fight with her mother. In the process, somehow, his elbow made contact with his daughters cheek. DYG’s daughter told police that he had hit her. DYG’s evidence in chief was inconsistent with his elbow making contact with his daughter’s face. During later questioning, DYG admitted he slapped his daughter. This is further evidence that goes to DYG’s credibility.

101. Further in the statutory declaration he states:

In the last 12 months my environment has changed significantly. I feel that I am in a safe, stable and secure place. I am living back on my mother’s Traditional Country, where I have strong family support and connectedness (sic). Being back it has opened my eyes up to a lot more injustices. It has brought a greater aspect and drive to make a change in my community it is my passion to work with future leaders of our community.

102. There is no doubt DYG has strong connection to country and his community. DYG demonstrated this by constant referral to his grandmother, a person who taught him many principles to uphold and live by. He also referred to his desire to be a bridge for his community and active in supporting its members. However, our finding concerning DYG’s credit is a powerful factor we have considered in relation to the weight we can give to his submissions concerning his environment being significantly changed and the risk he poses to children.

103. DYG relies upon numerous character references in support of his application. We have considered each of these and note that they all provide glowing references for DYG, particularly concerning his involvement with youth and their wellbeing. We do not doubt that DYG has significantly contributed to his community in youth related and other programs. Some of those references allude to DYG’s past behaviours, others do not. However, none of the referees go into any detail concerning the long history of alcohol dependency and related violent and aggressive behaviour which is relevant to our determination. While the references support DYG’s application in general, we have placed limited weight on them due to the lack of reference to his past and how he addressed his predisposition to respond to stress with anger.

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

104. This is not an applicable criterion in this matter.

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

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

Findings

106. DYG does not contest that he has a poor criminal history littered with alcohol and drug related violence. DYG is not proud of his conduct and, to his credit, he has attempted to address his problems. DYG is a well-respected aboriginal man who desires to work within his community and give back to those who need emotional and other assistance to put their life on track. We accept that DYG is attempting to make significant changes in his life for the better.

107. The evidence of DYG and HGF attempts to draw a distinction about what happened in a domestic setting and how DYG acts in his workplace. HGF said that whatever went on in his family is one thing and in the workplace he has been unexceptionable. The distinction, in our view, is not an appropriate one to make. The behaviour of DYG, both in his home and socially, are relevant matters to a working environment which must be considered. For example, when considering s.30(1A) of the act, a reasonable person needs to consider DYG working with children without supervision and encompassing all of these situations in any circumstance.

108. DYG says he has been abstinent from alcohol for eighteen months. We have no evidence to the contrary. However, we are not confident that we can accept DYG’s evidence as being the entire truth in this regard given our findings concerning his credit. We have considered that DYG did not report using alcohol over the last 18 months to his drug and alcohol counsellors, which is in his favour. However, given DYG’s history of abusing alcohol and its correlation with uncontrolled behaviour, we cannot be satisfied that sufficient time has passed to not pose a risk to the safety of children.

109. We have made findings concerning DYG’s credit with respect to his use of cannabis. The reliability of DYG’s evidence as to him being able to control his emotions and anger is problematic. We accept DYG has a genuine desire for change. He must be commended for that. However, we do not accept he is at the point in his recovery where we can be satisfied sufficiently to make a positive finding that he does not pose a risk to the safety of children.

110. We have taken into consideration that the demeanour of the DYG changed during the hearing. After the untruthful evidence was revealed concerning his use of cannabis, DYG appeared to be losing his temper, he seemed aggressive towards the Tribunal and counsel for the respondent, and he gave the impression that he was not totally in control of his emotions or aggressive urges. His presentation in this regard is material as it demonstrates how he is able to respond to stressful situations and manage his emotions. It is a factor we have considered in coming to our determination to affirm the decision of the respondent not to grant DYG with a WWCCC.

111. DYG gave evidence that he relied on the teachings of his grandmother. There is little doubt that she has taught him to be independent, right thinking and responsible. No doubt she would be distressed that he was aggressive towards his partner and children. Counsel for the respondent submitted that as DYG’s grandmother’s teachings did not act as a deterrent to DYG in the past, there is no reason why they would be effective as a deterrent in the future. We accept the submission that he cannot rely on her teachings, no matter how strongly he believes in them, when they have not curbed his activities in the past.

112. DYG’s insight into the harm he has caused, or could cause, to children is limited. He admitted to violence towards his daughter. He was less forthcoming of the impact of his physical and verbal behaviour, including threats of suicide, to children. While he admitted the allegations when the propositions were directly put to him, when Member Davison asked similar questions he said he had not caused harm except for the physical assault. DYG had trouble in accepting that he had caused harm in the past and, in our minds, this affects his recognition of potential harm that his behaviour may cause to children in the future.

113. In relation to the witnesses and references, it is clear that DYG has a persona in the community and is well respected, he is liked, and he is community-minded. Clearly, DYG could have a role in the aboriginal, and the wider, community. While this may be in the public interest, his potential for making a positive social contribution is not relevant to our determination as whether he should be granted a WWCCC, as DYG’s application fails on other preceding considerations. The public interest test is considered further below.

Section 30 (1A) consideration and findings

114. We have decided to affirm the decision of the respondent because, in our view, DYG is a real and appreciable risk to the safety of children. For completeness, we have addressed these provisions below.

115. 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.

116. 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.”

117. DYG has a long criminal history showing disregard for the law from the time he was 17 and continuing well into adulthood.

118. We consider that DYG’s history of violence towards, and witnessed by, children shows that he has unresolved issues that affect his ability to control his emotions and behaviour in their presence. We come to this conclusion notwithstanding that DYG has acknowledged, in relation to at least some instances, that his conduct could cause harm to children.

119. DYG admitted that he has an alcohol problem. Despite his evidence that he has self-referred for treatment and has his consumption of alcohol (and drugs) under control, we are not so satisfied. DYG’s credibility in this regard significantly affected the reliability of his evidence.

117. We are not satisfied that, having all this information before them, a reasonable person would allow his or her child to have direct contact with DYG where he was not directly supervised by another person while engaged in any child related work.

118. If DYG had succeeded on meeting other preceding requirements, the Tribunal would also be required to consider the test under section 30(1A)(b) which requires 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.

122. Although his application has failed on earlier grounds, for the sake of completeness we have also made a finding on this public interest test. As we discussed above, DYG has a genuine desire to work within his community and improve the lives of others within the aboriginal community. Despite this desire, we are not convinced that he has developed sufficient control of his emotions and behaviour to avoid reacting aggressively when provoked by stressful situations. While we commend his wish to help the community, it would not be in the public interest to make the order at this time.

Conclusion

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

124. The evidence and material received by the Tribunal establishes that DYG poses a risk to the safety and wellbeing of children.

125. It therefore follows that the correct and preferable decision is to affirm the decision made by the respondent to refuse the grant of a WWCCC to DYG.

Orders

1. The decision of the Children’s Guardian dated 7 November 2017 cancelling the applicant’s 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: 08 April 2020