Eja v Children's Guardian

[2021] NSWCATAD 202

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

EJA v Children’s Guardian [2021] NSWCATAD 202

Hearing dates:

3 May 2021

Date of orders:

14 July 2021

Decision date:

14 July 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Bailey, Senior Member
Professor Emeritus P Foreman, General Member

Decision:

The Tribunal affirms the decision under review and dismisses the application for administrative review.

Catchwords:

ADMINISTRATIVE LAW – Child Protection – Working with Children – Disqualifying Offences – Administrative Review

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Prohibited Employment) Act 1998 Repealed

Child Protection (Working With Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Mental Health (Forensic Provisions) Act 1990

Crimes (Sentencing Procedure) Act 1999

Crimes (Domestic and Personal Violence) Act 2007

Cases Cited:

BFX v Children’s Guardian [2014] NSW Catad115@29

BKE v Children’s Guardian [2015] NSW SC523@33 by Beech-Jones J

Tilley v Children’s Guardian [2017] NSWCA174@34-35

CXZ v Children’s Guardian [2020] NSWCA338@7(a) and 28

VQB v Secretary of the Department of Justice [2013] VCAT 789@36

McKinnon v Department of Treasury (2005) FCAFC142@8-10

Director of Public Prosecutions v Smith [1991] 1VR63

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EJA (Applicant)
Children’s Guardian (Respondent)

Representation:

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

File Number(s):

2020/00226800

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

Background

1. The applicant in these proceedings is referred to as “EJA” which is a pseudonym used in conformity with the non-disclosure order.

2. By application, filed on 3 August 2020, the applicant seeks a review pursuant to Section 27 of the Children Protection (Working with Children) Act 2012 (the Act) of the decision of the Children’s Guardian (the respondent) which was made on 8 July 2020 to cancel the applicant’s Working With Children Check Clearance (WWCCC).

3. The applicant is self represented and was assisted at the hearing by a Nepalese interpreter, pursuant to an order of the Tribunal on 11 March 2021.

4. On 1 November 2016, the applicant was granted a WWCCC. However, having received notifications about the applicant’s criminal offending in 2018, the respondent conducted a risk assessment under Section 15 of the Act.

5. The applicant was advised by way of notice of risk assessment on 22 August 2018.

6. On 30 January 2020, the respondent gave the applicant notice of a proposed cancellation.

7. On 8 July 2020, the respondent decided to cancel the applicant’s WWCCC.

8. The matter before the Tribunal is the application to review the respondent’s decision of 8 July 2020.

9. The Tribunal has jurisdiction to determine this matter pursuant to Section 30 of the Civil and Administrative Tribunal Act 2013 (CAT Act).

10. On 20 September 2020, the Tribunal ordered, pursuant to Section 64(1)(a) of the CAT Act that 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 is prohibited.

Factual background

11. The applicant was born in Nepal. He and his wife, SG, are the parents of a seven year old son (the child).

12. The applicant has had a number of employment positions. He commenced employment as a cleaner on 1 July 2011 with a cleaning contract company and worked in that role until 27 July 2020, when his WWCCC was cancelled. It is agreed that in this role, the applicant provided cleaning services in schools, which was why his WWCCC was required. The applicant was occasionally in the presence of children during his shifts at the school.

13. The applicant has also been coaching football to children.

14. The applicant’s documented history of domestic violence dates between 17 January 2012 and 18 August 2019. His conduct has resulted in a number of Apprehended Violence Orders (AVOs), both interim and final, which name SG as the person in need of protection.

15. The applicant has been charged with a series of criminal offences pertaining to domestic violence and breach of AVOs between 2015 and 2018.

16. The charges against the applicant have resulted in convictions, with the exception of the charges in 2015, which were dismissed pursuant to Section 32 of the Mental Health (Forensic Provisions) Act 1990.

17. On 25 January 2020, the applicant was charged with having a mid range prescribed concentration of alcohol whilst driving.

18. It is not contested that alcohol has been a predominant feature of the applicant’s offending.

19. The respondent submits that the applicant has placed his own child at risk of harm, a submission that the applicant contests.

Summary of the applicant’s domestic violence and criminal history

20. The following history is obtained from the documents produced pursuant to Section 58 of the Administrative Decisions Review Act 2005 (NSW) (ADR Act) which were filed on 17 September 2020 (s58 documents) and from documents produced by the respondent on 25 March 2021.

21. On the evening of 22 December 2011, SG returned home with her brother and the applicant, who was intoxicated and engaged SG and her brother in a verbal argument. Police attended the scene and their records reveal that the applicant verbally abused SG. The Police also recorded that SG alleged that the applicant had previously been violent to her, although she had not reported those incidents.

22. The applicant was arrested. The documents produced reveal that the applicant ask the Police to “shoot him because he wanted to die”. The applicant was admitted to Westmead Hospital and subsequently sedated.

23. On 23 December 2011, the applicant was issued with an interim AVO, which expired on 20 January 2012.

24. On 17 January 2012, which was three days before the expiry of the AVO, the applicant was issued with a further interim AVO, to expire on 12 March 2012.

25. On 11 June 2012, the applicant consumed alcohol and spoke to SG about moving to Nepal and moving out of the home owned by SG’s parents. An argument followed during which it is recorded that the applicant yelled at SG and left. Although SG contacted the Police on that occasion, she decided she did not wish to take further action.

26. On 24 March 2015, the child sustained a head injury whilst in SG’s care. SG took the child to hospital and informed the applicant. Records suggest that when the applicant attended the hospital, he appeared to be heavily intoxicated. An argument ensued between the applicant and SG. On that occasion, the applicant denied that he had a problem with alcohol. The applicant left the family home to stay with a friend.

27. On 28 March 2015, the applicant called SG with a request to see the child. SG left for her place of work at approximately 1:15 pm. When she did so, she found the applicant standing on the footpath outside their home. The applicant asked to see the child. SG responded that the child was staying with her brother. The applicant followed SG, and SG reported this to the Police. The Police applied for an AVO against the applicant because of this incident.

28. On 31 March 2015, the applicant was issued with a final AVO, which expired on 30 March 2016.

29. However, on 15 April 2015, the applicant was charged with contravene prohibition/restriction in AVO and resist or hinder Police in execution of duty. The records show that the applicant had consumed alcohol and requested SG to drink with him. The applicant accused SG of infidelity, and banged his head on a concrete wall and threatened to kill himself with an item of clothing. SG contacted the Police. The applicant was aggressive towards the Police which resulted in the charge.

30. On 21 April 2015, the charges were dismissed pursuant to Section 32 of the Mental Health (Forensic Provisions) Act 1990.

31. On the date that the charges were dismissed, the applicant was issued with an interim AVO, which expired on 30 March 2016.

32. On 11 September 2015, the applicant was issued with a final AVO, which expired on 10 September 2016. This superseded the interim AVO dated 21 April 2015.

33. On 19 August 2017, the applicant drank whisky at home. SG asked him to leave when he became intoxicated. He did so and took with him a bottle of vodka. Shortly after midnight, in the early hours of 20 August 2017, the applicant returned. He yelled and banged on the front door and asked to be admitted to the property SG refused and requested the applicant to return when he was sober. The applicant refused to leave and SG contacted the Police. The Police located the applicant outside his home and escorted him to Granville Police Station, where he remained until 6:00 am.

34. On 17 March 2018, SG returned home from work to find the applicant drinking whisky. At approximately 11:30 pm, SG was preparing the child for bed when the applicant entered the child’s room and accused SG of infidelity. He threatened to kill anyone with whom SG was involved. The child awoke and SG asked the applicant to leave the house. When the applicant refused to do so, SG took the child to Granville Police Station. The Police detained the applicant in custody and applied for an AVO.

35. On 18 March 2018, the applicant was issued with an interim AVO. This appears to have been superseded by a further order on 19 March 2018.

36. At approximately 11:00 pm on the same day,18 March 2018, the applicant returned home after drinking alcohol with a friend. The applicant attracted SG’s attention by throwing pebbles at her window. SG refused to admit him to the home. It is recorded that the applicant said to SG words to the effect: “By any chance if I meet you, I’m going to kill you”.

37. On 19 March 2018, the applicant was issued with yet another interim AVO, which expired on 27 March 2018.

38. As a result of that conduct, the applicant was charged with contravene prohibition/restriction in AVO and stalk/intimidate. The applicant pleaded guilty to both charges on 27 March 2018. He was sentenced to a Good Behaviour Bond, for a period of 12 months, under Section 9 of the Crimes (Sentencing Procedure) Act 1999.

39. On 27 March 2018, the applicant was issued with a final AVO which required the applicant not to approach SG for at least 12 hours after drinking alcohol.

40. On 27 July 2018, SG returned home and found the applicant drinking red wine, in contravention of the AVO. At approximately 12:40 am on 28 July 2018, an argument ensued, during which the applicant punched SG three times to the side of the head. On 28 July 2018, the applicant was charged with common assault and contravene prohibition/restriction in AVO. The applicant pleaded guilty to both charges on 31 July 2018.

41. This time, he was sentenced to a Good Behaviour Bond for a period of 18 months pursuant to Section 9 of the Crimes (Sentencing Procedure) Act 1999, with the condition that he report to drug and alcohol and domestic violence counselling, and a suspended sentence of two months.

42. On 18 August 2018, at approximately 2:15 am, the applicant went home, whilst under the influence of alcohol and approached SG. He asked SG to drink with him. She refused. SG heard the applicant opening wine, approached him and poured the wine down the drain.

43. The applicant then left the house but returned at 7:00 am and engaged in a verbal argument with SG and again accused her of infidelity. The child witnessed this argument and asked his parents not to fight. The applicant was again charged with common assault and contravene prohibition/restriction in AVO. However, on 25 March 2018, the common assault charge against the applicant was withdrawn. The applicant pleaded not guilty to contravene AVO but was convicted and sentenced to an intensive correction order for a period of 12 months entailing 100 hours of community service, and was required to attend alcohol treatment programs.

44. Notwithstanding that sentence, within the 12 month period, on 25 January 2020, at approximately 8:55 am, the applicant submitted to a random breath test, which returned a positive result. The applicant told the Police that he had consumed one glass of red wine at 12:30 am and had not consumed food. The breath analysis produced a reading of 0.096 percent PCA. The child, who was then aged six, was seated in the rear of the vehicle when the applicant was pulled over the random breath test.

45. On 24 March 2020, the applicant pleaded guilty to the charge and was fined $600.00, disqualified from driving for three months and required to participate in an “interlock program” for 12 months.

Legislative framework and relevant principles

46. A worker must not engage in “child related work” unless he or she holds a clearance of a class applicable to the work, or unless there is a current application for such a clearance before the Children’s Guardian (Section 8(1) of the Act).

47. The object of the Act is to protect children by not permitting certain individuals to engage in “child related work”, and by requiring those who are engaged in child related work to have a WWCCC.

48. “Child related work” is defined in Section 6 of the Act. It relevantly includes, for the purpose of the matter before the Tribunal, work in clubs or other bodies providing services to children, and education, where that work involves direct contact by the worker with a child or children and that contact is a usual part of, and more than incidental to the work (Section 8(1)(a) and (2) of the Act).

49. The Tribunal should have regard to the paramount consideration of the Act namely the safety, welfare and well-being of children and, in particular, protecting them from child abuse, set out in Section 4 of the Act.

50. The Act does not specifically define “child abuse”. The Tribunal has held that child abuse might include “the maltreatment of a child consisting of physical, emotional or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence” (BFX v Children’s Guardian [2014] NSWCATAD115@29).

51. The Tribunal must determine the correct and preferable decision, having regard to the material before it, which may include information which was not available to the respondent when the decision was made on 8 July 2020.

52. The Tribunal may affirm or vary the decision or may set aside the original decision and make a new decision, or remit the matter to the respondent for reconsideration (Administrative Decisions Review Act 1997, Section 63(3)).

53. Neither applicant nor the respondent bears any onus of proof in this application. However, the applicant must fully disclose to the Tribunal any relevant matters.

54. The Tribunal’s jurisdiction is protective and not punitive. Its role is to support the object of the Act to eliminate the risk to children.

55. The task of the Tribunal is to determine whether the applicant poses a risk to the safety of children. The Tribunal must grant the applicant a WWCCC unless it is satisfied that he poses such a risk.

56. “Risk to the safety of children” is defined in Section 5B of the Act as a “real and appreciable risk”. The Tribunal is required to determined whether, in all the circumstances, there is a real and appreciable risk that is greater than the risk of any adult preying on a child. This is not limited to the consideration of whether the applicant would pose a risk to children only if he were engaged in child related work.

57. The Tribunal must have regard to the matters set out in Section 30(1) of the Act, all of which are mandatory relevant considerations, unless inapplicable to the particular case.

58. Section 30(1) of the Act provides:

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 criminal history and the conduct of the person since the matters 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.

1. 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.

Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

59. If the Tribunal is not satisfied that the applicant poses a risk to the safety of children, having regard to the factors in Section 30(1), it is then required to consider the factors set out in Section 30(1A), which provides that the Tribunal cannot make an order which has the effect of enabling a person to work with children unless it is satisfied that:

1. a reasonable person would allow his/or child to have direct contact with the applicant which is not directly supervised by another person while the applicant was engaged in any child related work (the reasonable person test); and

2. it is in the public’s interests to make the order (the public interest test).

60. The Tribunal must not make an order which would have the effect of enabling a person to work with children, unless it is satisfied that both of the matters set out in Section 30(1A).

Reasonable person test

61. The reasonable person test is subjective and the “reasonable person” is taken to have knowledge of the disqualifying offence, the surrounding circumstances of the offence, the applicant’s criminal history, the length of time since the offence and any expert assessment made of him/her.

62. In VQB v Secretary of the Department of Justice [2013] VCAT 789@36, it was held that the reasonable person would not “approach the task with a closed mind thinking that once a person has offended, he/she can never be redeemed” but would also not “put aside all scepticism and reasonable caution in some overoptimistic attempt to facilitate rehabilitation”.

The public interest test

63. The public interest test requires that the Tribunal, before making an order allowing an applicant to work with children, must find that it is in the public interest to make such an order.

63. In McKinnon v Department of Treasury (2005) FCAFC142@8-10 the full Federal Court said:

“The expression ‘in the public interest’ directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content and will depend on each particular set of circumstances”.

65. In this context, the public interest is to be interpreted in the light of the paramount consideration of Section 4 of the Act, namely the safety, welfare and well-being of children.

66. The Court of Appeal in Victoria explained in the Director of Public Prosecutions v Smith [1991] 1VR63 that:

“The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals”.

Summary of applicant’s position

67. Whilst the applicant did not file any written submissions, his reasons for seeking a review are set out in his application. However, the applicant has provided the following documents during the course of the risk assessment conducted by the respondent:

1. statutory declaration of the applicant, dated 21 November 2018;

2. statutory declaration of the applicant, dated 19 February 2020;

3. employer’s reference from Christopher White, Regional Manager of Printing and Distribution at TAFE NSW, dated 21 November 2018;

4. employer’s reference from Ahmad Shakib, Client Service Manager of ISS Facilities, dated 19 February 2020;

5. professional reference from Suman KC, Lawyer of Shamser Thapa and Associates, dated 22 November 20218;

6. professional reference from Mary Lee of TAFE Digital, dated 22 November 2018;

7. professional reference from Antoinette D’Souza, Customer Service Officer, TAFE Digital NSW< dated 12 February 2020;

8. letter of reference from Dal Bahadur Chhetri, undated;

9. reference from Mathias Kofi Dussey, Counsellor of Damec, dated 22 November 2018;

10. reference from Mathias Kofi Dussey, Counsellor of Damec, dated 2 June 2020.

68. The applicant also made oral submissions, with the assistance of a Nepalese interpreter at the hearing.

69. It became apparent that the applicant had attended the hearing and had not brought any of the documentary material submitted to the Tribunal with him. The Tribunal offered him the opportunity to stand the matter down so that he could retrieve that material. With the assistance of a Nepalese interpreter, he declined that offer.

70. In his application, the applicant submitted that the respondent failed to consider his statutory declaration, dated 19 February 2020, and did not attribute sufficient weight to his character references. He also asserted that the respondent did not adequately consider the fact that the child still lives with him and there is, in the applicant’s opinion, no risk to him. Furthermore, he asserted that the respondent did not consider the statement made by SG. He expressed remorse and said that he has taken responsibility for his conduct.

71. The applicant added that he has suffered hardship as a result of having to leave his job, where he had worked for 12 years, due to the cancellation of the WWCCC. He said this has caused financial difficulty for him and his family.

72. In his oral submissions, the applicant confirmed that he has contact with children in his work. He added that he looks after his child on weekends and when SG works and that he has “no issues with children”.

73. The applicant submitted that his difficulties arose because of his drinking habit. He repeated the fact that the decision has caused considerable financial hardship for him. He conceded that he had a drinking difficulty and asked the Tribunal to take into account the fact that there is no evidence of him presenting a risk to children outside of his home because the factual matters relied on by the respondent relate to “domestic issues”. He said that he no longer has an alcohol problem and that he now lives happily with SG and the child at home.

74. The applicant told the Tribunal that he believes that his wife has unjustly blamed him and that it is unreasonable that he has had to leave his job. He said that the child had never been involved in any of the matters resulting in charges against him and that he is now “living happily with his wife forgetting past incidents”.

75. In relation to the drink driving incident, the applicant said that this occurred when he was driving his son to hospital, when his wife was at work and he had not eaten any food. He said that he looks after the child and has never done him any harm.

76. The applicant gave evidence that he did not agree with the facts as set out in the Police documents contained in the Section 58 documents. He pointed out that he has been married for 12 years and that he has looked after his son when his wife works. He disputed some of his wife’s allegations against him and said: “We don’t have a camera in our house”, by which he appeared to be asserting that there was nothing to prove his wife’s version of events.

77. He said that whenever the Police questioned him, he had asserted that because there was no camera footage there could be no proof. He agreed, however, that he had argued with his wife on occasions, when drunk, and that he had pleaded guilty. He said: “I love her but when I drink I blame her for things” and that he was drunk when he hit his wife. He agreed that he hit his head on a wall and said that he would like to die and that his wife called the Police in response to this behaviour. However, he denied that he intended to commit suicide in the 2011 incident. He described it as “just a tantrum”. He added: “They think I’m a criminal”.

78. In cross-examination, the applicant conceded that he had attended hospital on 24 March 2015, when SG took the child there. However, he denied that he was intoxicated. He denied having anything to drink. He said: “I told my wife I’d be at a friend’s party. Then I received a call”. He said the party was about to start and he had not yet had anything to drink.

79. In relation to his former drinking habit, he said that because he worked in two jobs, he used to drink on Friday nights and developed a problem.

80. However, in cross-examination, the applicant stated that he only drinks occasionally now with friends and family. In relation to his drink driving charge on 25 January 2020, he gave evidence that he had only had one to one and a half glasses of alcohol. He said that he was feeling ‘low’, because his grandmother had passed away. He gave evidence that he had a drink as “ritual drinking” for his grandmother.

81. The respondent’s Solicitor reminded the applicant that his breath test took place at 8:55 am. The applicant said that he stopped drinking at midnight or 1:00 am earlier that morning. He told the Tribunal that his “mind was not working properly” ,due to stress and his grandmother’s passing, when he told the Police that he had had one glass of red wine and no food.

82. The applicant said that he was aware that he was subject to a Court order prohibiting him from drinking any alcohol on that day and repeated that he transgressed because his mind “was not working on that day”.

83. Significantly, the applicant denied ever having placed his son at risk. He denied that the occasion on which he was driving with almost double the prescribed content of alcohol was dangerous. He said: “I wasn’t too intoxicated” and said that he would not have taken his son in the car if he were not ill.

84. The respondent’s Solicitor asked the applicant a number of times whether he believed having a child in a vehicle and driving whilst over the prescribed limit placed the child at risk. The applicant eventually responded: “Having alcohol is risky for my son and for me as well”.

85. The applicant accepted that he had been charged with several domestic violence offences, which he attributed to his drinking habit. He said that this mostly occurred at night whilst the child was sleeping. However, he conceded that on 18 August 2018, his son witnessed an argument. He took issue with the contents of the Police report which said that the child had uttered words to the effect of: “Don’t fight”. The applicant said that the child actually “mentioned to wife not to argue with dad”. He said that his son had never been affected by the argument between his parents except that he had asked why his father had been taken to the Police. He denied ever drinking in front of the child.

86. The applicant also gave evidence that on every weekend he coaches the child’s football team when he takes his son to play soccer.

The respondent’s submissions

87. The respondent submits that the Tribunal should find that the applicant poses a real and appreciable risk to children in light of his previous offending and the absence of sufficient evidence of rehabilitation. The respondent submits that the Tribunal should affirm the decision under review.

88. Addressing Section 30(1) of the Act, the respondent made the following submissions.

89. The applicant’s WWCCC was refused on the basis of a history of his charges and convictions for domestic violence between 2015 and 2018 and the Tribunal should find that this criminal history is serious because it involves both physical violence and verbal abuse against SG, on at least one occasion in the presence of the child.

90. The offence of stalk/intimidate with intend to cause fear of physical harm carries with it a maximum penalty of five years imprisonment, 15 penalty units or both (Section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007). The offence of contravening a prohibition of restriction in an AVO carries a maximum penalty of imprisonment for two years or 50 penalty units or both.

91. The respondent noted that the applicant has been convicted and sentenced in relation to the charges but concedes that there is no evidence that the applicant was verbally or physically abusive towards the child.

92. The respondent submits, however, that the child was exposed to verbal and physical abuse in the home as well as excessive drinking which is consistent with the definition of child abuse in BFX(@29).

93. The respondent noted that since it made its decision, the applicant has been convicted for drink driving and that this is significant for several reasons, including:

1. the applicant’s son was present in the vehicle when that offence occurred which placed the child at very serious risk of harm;

2. the offence demonstrates a disregard for the safety of the community generally, including children; and

3. it demonstrates that the applicant continues to have an alcohol problem which leads to criminal offending.

94. The respondent submitted that the applicant’s explanation for that offence is implausible because the amount of alcohol conceded by the applicant is unlikely to give rise to the blood alcohol content proven.

95. The respondent referred to evidence from the applicant’s drug and alcohol counsellor, Mr Dussey, contained in the Section 58 documents (at page 93-94) which acknowledges that the applicant’s alcohol use put the child at risk. That reference indicates that the applicant successfully completed that program. The respondent noted that the drink driving offence occurred after the program was complete.

96. The respondent also noted that the drink driving offence occurred during the period when the applicant was required to abstain from consuming alcohol pursuant to a Court order made on 6 May 2019. The respondent asked the Tribunal to consider the fact that the applicant’s criminal history extends over many years until the most recent offence (the drink driving offence) in January 2020.

97. In relation to Section 31(d), the respondent submitted that the applicant’s wife was inherently vulnerable in the context of the applicant’s offending because the offences occurred in the home she shared with the applicant. The respondent also noted that the child was between one to four years old at the time of the domestic violence offences and six years old at the time of the drink driving offence and is, therefore, also inherently vulnerable.

98. The respondent submitted that there is a significant risk that the applicant will re-offend and that, because it has only been a short period of time since the applicant’s most recent offence, insufficient time has passed for the Tribunal to be satisfied that it is unlikely that the same or similar conduct will not occur in the future.

99. The respondent submitted that the applicant’s conduct poses a risk to children due to his consumption of alcohol. The respondent submitted that the applicant has undertaken, on various occasions, to abstain from drinking but has failed to do so, even though he has been subject to a Court order requiring him to abstain from drinking and has completed drug and alcohol counselling.

100. There is no evidence before the Tribunal to indicate that the applicant has undertaken any further counselling since his most recent conviction.

101. The respondent submitted that exposure to domestic violence in the home has the potential to result in serious psychological harm, and that being a passenger in a motor vehicle, driven by an intoxicated person, gives rise to a serious risk of physical harm. Therefore, the respondent says that the applicant has placed the child at risk of harm and the Tribunal should be satisfied that any repetition of his conduct is likely to have a serious detrimental impact on children.

102. The respondent referred the Tribunal to the statement from SG which says that she has observed changes in the applicant’s behaviour.

103. The respondent submitted that the Tribunal should consider the applicant’s apparent lack of insight into his offending and the fact that he appears to blame his victim to justify his alcohol use.

104. The respondent submitted that the Tribunal must affirm the respondent’s decision if it is satisfied that the applicant poses a risk to children in any context, not just in his workplace and that the Tribunal should find that his lack of insight, minimisation of his offences, lack of appreciation that it was dangerous to drive a child when nearly twice the legal limit emphasises the fact that he poses a risk to children.

105. The respondent also submitted that the Tribunal should find that a reasonable person would not permit their child to be unsupervised with the applicant, if they were aware of his history. The respondent submitted that the Tribunal should find that it is not in the public interest to set aside the respondent’s decision if the Tribunal considered the paramount consideration of the test which is the safety and well-being of children.

106. The respondent also submitted that the Tribunal should have regard to the nature of domestic violence offences and the adverse impact that that offending has on society at large and that the Tribunal should attribute little weight to the character references because it is not apparent from those documents that the referees are aware of the details of the applicant’s offending.

107. Finally, the respondent submitted that the Tribunal, whilst recognising that there is public benefit in allowing an individual to be involved in gainful employment, there is no evidence that the applicant could not obtain gainful employment in non-child related workplaces.

Tribunal’s consideration

Section 30(1) considerations

108. Although the applicant denies the seriousness of his offences and attributes the to his alcohol use, the Tribunal notes that he has been the subject of a number of AVOs (both interim and final) since and that there is evidence of charges and convictions for domestic violence related offences between 2015 and 2018.

109. The applicant was 31 years old at the date that the first incident occurred which results in a criminal conviction. He was 33 years of age when the drink driving offence occurred and he is currently 34 years old. The applicant’s wife, SG, was between 26 and 29 years of age at the time of the domestic violence offending. The child was between one and four years of age and six years old at the time of the drink driving offence.

110. The Tribunal accepts that SG and the child were both vulnerable people in relation to the applicant’s offences. Whilst there is only a three year age difference between the applicant and SG, there is a 27 year age difference between the applicant and the child. Both are in a domestic relationship with the applicant and the child, in particular, is inherently vulnerable due to his age and lack of control in the circumstances.

111. The Tribunal finds that the applicant’s criminal history is serious, because it involves physical violence and verbal abuse against his wife, over an extended period of time and because it occurred at least on one occasion in the presence of a vulnerable child. The fact that the offences are serious is supported by the penalties that can be imposed in the event of conviction. Indeed, the applicant’s offences resulted in serious sentences, including a suspended prison sentence and intensive correction orders.

112. The Tribunal accepts that there is no evidence that the applicant verbally or physically abused the child. Nevertheless, the applicant himself concedes that the child on one occasion witnessed a domestic violence incident and was a passenger in the vehicle when he committed his drink driving offence.

113. It has been just over a year since the most recent conviction. During that period of time, the applicant has been required to use an interlock, which prevents him from driving when intoxicated. However, the fact that he did commit a drink driving offence on 25 January 2020, and that this occurred whilst he was prohibited from consuming alcohol demonstrates that the applicant did not comply with Court orders. In our view, this increases the seriousness with which the Tribunal should regard his offence because it demonstrates a lack of insight into the seriousness of his offending and disregard for Court orders and the law.

114. The Tribunal found the applicant’s explanation as to the reason for his drink driving on 25 January 2020 implausible. The manner in which he gave his evidence was inconsistent with a desire to provide a frank and forthright account of his actions. In particular, his initial denial that his actions placed his son at risk were significant. This suggests to the Tribunal that he lacks insight into the seriousness of his conduct. Furthermore, the Tribunal notes that the applicant has been inconsistent in his evidence in relation to his current consumption of alcohol. He has previously undertaken to abstain from drinking but has failed to do so. He conceded at the hearing that he continues to drink.

115. The Tribunal noted the statutory declaration of SG. However, she was not present in Court and, in view of the fact that she is a vulnerable person, the Tribunal decided not to test her evidence. However, the weight that can be given to such evidence is limited in view of her relationship with the applicant and the fact that she has previously been a protected person. Indeed, it is SG who was the primary victim of the applicant’s offences.

116. Nevertheless, the Tribunal considers that the child is also a victim in these circumstances. It is well documented that exposure to domestic violence causes psychological harm and has a profoundly detrimental affect on society as a whole. There is no doubt that the applicant knew that the child, who is also a victim in this instance, was a child when he committed his offences and in particular when he committed his drink driving offence.

117. The Tribunal considered the likelihood of any repetition of the relevant conduct by the applicant. Of particular significance to the Tribunal was the applicant’s apparent lack of insight into the seriousness of his offences and his repeated assertions that his wife was to blame for calling the Police and there was no proof that he had acted as alleged.

108. The Tribunal is not permitted to look behind the convictions and must accept the fact that the applicant was convicted as prima facie evidence that he committed the offences for which he was charged.

109. The Tribunal notes that there is no evidence that the applicant has undertaken further drug and alcohol counselling since his drink driving conviction. The Tribunal is also satisfied that the applicant appears not to fully comprehend the fact that the child has been exposed to significant psychological and physical harm.

110. The Tribunal has considered the material produced by the applicant, in particular the character references. However, in view of the fact that none of the referees demonstrate a detailed understanding of the applicant’s criminal history, their statements cannot be given significant weight.

111. Furthermore, they are inconsistent with the view of the applicant’s Community Corrections Officer. Ms Kimberley O’Toole, Community Corrections Officer, provided a report, dated 5 May 2019, which concluded, amongst other things, that the applicant justified his actions; did not take responsibility for his offending behaviour and blamed the victim; and acknowledged that the consumption of alcohol contributed to his offending behaviour but maintained that he does not have an alcohol problem and was entitled to consume alcohol.

112. In the hearing, the applicant confirmed his view that SG called the Police because she was opposed to him drinking. This demonstrated impaired insight, consistent with his presentation to his Community Corrections Officer.

113. In view of the fact that there is no evidence to suggest that the applicant has adequately addressed his ongoing use of alcohol, or developed insight into his actions, the Tribunal finds that the applicant poses a real and appreciable risk to the safety of children.

114. For the sake of completeness, the Tribunal addressed the reasonable person test. The Tribunal is persuaded that a reasonable person would not allow his/her child to have direct contact with the applicant which is not directly supervised by another person while the applicant was engaged in any child related work. This is because a reasonable person would be taken to have knowledge of the applicant’s protracted history of domestic violence and drink driving offences and the recency of those offences in addition to the fact that the applicant continues to consume alcohol. This would require the reasonable person to understand that the applicant has recently been convicted of a drink driving offence whilst his own child was in the car. The Tribunal is satisfied that the applicant’s continued drinking would result in a reasonable person not permitting their child to have unsupervised contact with the applicant whilst engaging child related work.

115. Furthermore, the Tribunal accepts that the prevailing public interest is the safety, welfare and well-being of children in this instance. The Tribunal has regard to the domestic violence nature of the applicant’s offending and the detrimental impact that this conduct has on the whole of society, especially children.

116. The Tribunal notes that the applicant has not provided evidence to suggest that he only has particular skills or experience in child related work and there is no evidence that he could not perform well in remunerative employment in a non-child related context.

117. The Tribunal, therefore, affirms the decision under review and dismisses the application for administrative review.

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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

Amendments

04 August 2021 - Counsel removed from coversheet.

[81], [84] - 'Counsel' replaced with 'Solicitor'.

Decision last updated: 04 August 2021