Fju v Children’s Guardian - [2024] NSWCATAD 90

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FJU v Children’s Guardian [2024] NSWCATAD 90
Hearing dates: 15 May 2023, 3 August 2023
Submissions closed 15 November 2023
Date of orders: 05 April 2024
Decision date: 05 April 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
M Bolt, General Member
Decision:
(1) The decision of the respondent dated 4 June 2022 to refuse the applicant’s Working with Children Check Clearance is affirmed.
(2) The application is dismissed.

Catchwords:
ADMINISTRATIVE LAW — child protection — working with children — risk to children whether risk real and appreciable — allegations — circumstances of allegations — weight of evidence of risk — current risk — expert evidence — future risk — whether sufficient time to rehabilitate — risk elevating factors

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Child Protection (Prohibited Employment) Act 1998 (Repealed) (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)

Cases Cited:
ADV v Commission for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
BJB v NSW Office of the Children's Guardian [2014] NSWCATAD 111
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of Children’s Guardian [2015] NSWSC 523
Children’s Guardian v CKF [2017] NSWSC 893
Commissioner for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
M v M (1988) 166 CLR 69
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
R v Commission for Children and Young People [2002] NSWIRComm 101
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Orders: DSM-5 (5th ed, 2013, American Psychiatric Association)

Category: Principal judgment
Parties: FJU (Applicant)
Children’s Guardian (Respondent)
Representation: Solicitors:
Benjamin & Khoury Solicitors (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2022/00198369
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, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR DECISION

Introduction

This applicant seeks administrative review of a decision by the respondent refusing his Working with Children Check clearance (WWCCC). The clearance was refused because the respondent (the Office of the Children’s Guardian) was satisfied that he posed a risk to the safety of children.
The respondent in processing the 19 February 2021 application became aware of a number of offences committed by the applicant from 2016 to 2020. These involved violent conduct in the nature of assaults resulting in sustained Court findings for which the applicant served a custodial sentence and other penalties. After conducting a risk assessment the respondent made determinative findings about the applicant’s behaviour and conduct.
As a result of the risk assessment the respondent made a finding that the applicant posed a real and appreciable risk to the safety of children and after seeking a response from the applicant to the proposed refusal, subsequently refused his WWCCC.
Whilst the applicant undertook significant remedial and other mitigating actions post allegations, the respondent determined that notwithstanding those actions, the applicant remained a real and appreciable risk to the safety of children.
The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act), the Tribunal finds that the applicant remains a real and appreciable risk to the safety and well being of children and young persons. As a result of the finding the decision of the respondent will be affirmed.

Background

The Applicant in these proceedings is referred to as "FJU". FJU is the applicant's pseudonym used in these proceedings in conformity with the order referred to at [7] (below).
On 25 August 2022 an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
FJU applied for a WWCCC on 19 February 2021. As an applicant whose application is pending FJU was entitled to be engaged in child related employment while the application was being determined. However on 14 April 2021 FJU was directed to cease any child related employment because the Children’s Guardian, as part of the preliminary assessment process, determined to impose an Interim Bar under s 17(1) of the Act. An Interim Bar remains in place until the assessment process is concluded.
The decision to impose the interim Bar was based on the identification of various records which concern matters listed in Schedule 1 of the Act. These matters constitute mandatory risk assessment triggers. The respondent is however able to conduct a risk assessment on any application as confirmed by s 15(3) of the Act and the Court of Appeal Decision in Tilley v Children’s Guardian [2017] NSWCA 174. The records identified by the respondent were as follows:

Assault Occasioning Actual Bodily Harm (convicted November 2016)

Common Assault (result pending at time of Interim Bar)

Assault Occasioning Actual Bodily Harm in circumstances constituting a domestic violence offence (convicted July 2018)

FJU was invited to participate in the assessment process, which he did from March 2021 to May 2022. Records from September 2021 (about half way through the process) outline FJU’s frustration with the process, the length of time it was taking and the impact the Interim Bar was having on his ability to earn a livelihood in the community.
On 3 June 2022 the respondent completed their risk assessment and determined that FJU was a real and appreciable risk to the safety of children. As a result if that determination FJU’s application for a WWCCC was refused.
On 6 July 2022 FJU lodged his application for Administrative review of the decision with the Tribunal.

Jurisdiction of the Tribunal

The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature, as set out by the Court when considering s 28 of the Act: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. 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.

The Notice of Refusal issued under s 18(2) of the Act was issued on 3 June 2022. FJU stated in his application that he was notified of the decision on the same day. On this basis, the application for administrative review filed 6 July 2022 was filed five days out of time. This matter was identified in the interlocutory stages of the matter before the Tribunal, and an order was made under s 41 of the NCAT Act as necessary extending time for lodgement of the administrative review application by approximately five days.
The Tribunal has power to review decisions of the Children’s Guardian concerning a risk assessment pursuant to s 27 of the Act. That section provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions
(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
(2) A person whose clearance is cancelled by the Children’s Guardian under section 23 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.
(3) A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.
(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.
(5), (6) (Repealed)
(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.
(8) The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person’s employer.
(9) A stay order is an order under section 60 of the Administrative Decisions Review Act 1997 that stays or otherwise affects the operation of a decision that is subject to review by the Tribunal under this section.
(10) This section does not otherwise affect the operation of Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.
(Emphasis added).

FJU did not seek a review of the decision to impose an interim bar in accordance with s 27 (3) of the Act, even though such a review was open to him from late October 2021. However FJU availed himself of his rights under s 27(1) of the Act in bringing this application to the Tribunal.

The application for administrative review

The grounds of the substantive application (in summary) are:

I have not had any child related incidents. I acknowledge I have had a serious incident but that was almost 5 years ago. I had an issue with drugs and alcohol which resulted in some other charges. I know [sic] have my drinking and drug taking under control and have changed a lot since then. Teaching children (preferred sport) is my passion and I would love to be able to fulfil that. I did ask if there were concerns could I work with children with the condition another adult is with me. That didn’t appear to be considered.

More detailed grounds were provided in written material submitted by FJU. In his grounds and some other aspects of these reasons, FJU’s preferred sport and vocational area is anonymised in part to prevent constructive identification of FSU, who has been involved to some, extent in the sport at a representative level.
The issue to be decided by the Tribunal is whether on the balance of probabilities FJU poses a risk to the safety of children. In reaching this position the Tribunal is required to traverse ss 30(1) and 30(1A) of the Act and determine the correct and preferable decision. In addition, in reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk. Risk is determined at the time of the decision made by the Tribunal so in that regard the Tribunal is determining an applicant’s current risk.

The working with children legislative scheme

The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.
The safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: s 4 of the Act.
Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.
The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": see s 6(1)(b) of the Act. A child related role is set out in s 6(3) of the Act.
Other provisions of the Act deal with assessment requirements, which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)). The applicant in these proceedings (FJU) was subject to a risk assessment as the respondent identified matters listed in Sch 1 of the Act as outlined above.
Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions s outlined at [15] above.
Section 30 sets out the factors that the Tribunal must consider in determining a review application. Section 30(1) of the Act provides:

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 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.

Burden of Proof

The jurisdiction of the Tribunal under s 27 of the Act has been found to be protective and not punitive in nature: BJB v NSW Office of the Children's Guardian [2014] NSWCATAD 111, at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32].
An application pursuant to s 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88. However there is no statutory presumption that FJU is a risk to children unlike an applicant for an enabling order under s 28 of the Act.
The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (NSW) (the Repealed Act). At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for 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". ...'

These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998 (NSW): see ADV v Commission for Children and Young People [2012] NSWADT 8.
The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].
We note that ‘risk’ has a statutory definition in Act at s 5B by reference to ‘risk to safety of children’:

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

The hearing

The matter was heard over two days on 15 May 2023 and 3 August 2023. Both sides were legally represented at hearing. At the conclusion of the hearing, the Tribunal made directions consistent with the parties’ request to put on further submissions and submissions in reply concerning the position of the respective parties after considering the evidence adduced at hearing. That process concluded in mid November 2023 with the Tribunal reserved as at 15 November 2023.
FJU gave evidence at the hearing, as did his expert and his treating Psychologist. All three witnesses were subject to cross-examination at hearing.

Written Evidence

Applicant’s written material

The applicant filed a number of written items in support of his application:

Exhibit ‘A 1’: report of Dr Dayalan dated 10 October 2022,

Exhibit ‘A 2’: report of Dr Dayalan dated 1 April 2023,

Exhibit ‘A 3’ report of C Neuhoff dated 1 March 2023.

Exhibit ‘A 4’ letter by C Neuhoff dated 1 April 2023,

Exhibit ‘A 5’ bundle of references (surname initial and date: ‘O’ 3/4/2023, ‘M’ 10/4/2023, ‘P’ 6/2/2023, ‘S’ 31/1/2023, ‘G’ undated but filed 14/4/2023, ‘P’ 13/5/2023, ‘K’ 20/4/2023, ‘O’ 13/11/2016.

Exhibit ‘A 6’ Statutory Declaration from ‘FJU.’

Exhibit ‘A 7’ Pathology Report 13/2/2023.

Exhibit ‘A-8’ Statement of FJU dated 19/10/2022.

Respondent’s written material

The respondent filed substantial material under both s 58 of the Administrative Decisions Review Act 1997 (NSW) and material obtained since the commencement of the proceedings under s 31 and material produced under summons. (‘R-1’ section 58 documents, ‘R-2’ Material produced under summons Dr D Dayalan, ‘R-3’ Material produced under summons C Neuhoff).

Both parties filed extensive written submission and made oral submissions at hearing. Following receipt of all of the evidence the parties filed submissions in reply after the hearing.

Brief history of relevant matters

FJU is a young man who has been involved both in recreational capacity and a semi professional capacity in an individual (as opposed to team) sport. FJU seeks a clearance essentially to be able coach and teach children in that sport.
During his early adult years FJU exhibited violent behaviour and committed a number of offences in the nature of assaults. In 2016 FJU was at a music festival in Queensland and asked to leave by security. FJU became aggressive and swung punches at the attending security officers causing a minor injury to one of the officers. Police attended and searched FJU and located cannabis. FJU went to Court and was found to have committed the assault and drug possession offences but was given the benefit of an order under Queensland sentencing law, being offence proven, no conviction recorded.
In 2017 when FJU was aged 20 and his then partner was aged 18 he attacked his partner causing injury to her. FJU was reported at becoming jealous of his partner having installed a dating app. FJU left his partner’s premises and consumed a quantity of alcohol and sent her a number of threatening text messages. He then returned to his partner’s home and punched her to the face so hard that he broke his partner’s nose. He then punched his partner repeatedly to the face and body. FJU then demanded that (his injured) partner obtain alcohol for him from his car and when she returned with the alcohol FJU pushed her into her chest and tried to choke her for around 30 seconds. He released his grasp to allow his partner to breath and then repeated his choking action five times saying she deserved the treatment. FJU then pulled the partner up by her hair, pushed her face into a pillow and punched her in the jaw. The partner required Hospitalisation for her physical injuries.
FJU was charged with assault occasioning actual bodily harm, strangulation in domestic setting, wilful damage and contravene an existing domestic violence order. He was sentenced to two years imprisonment including a four month non parole period.
Later on in the evening of the assault on his partner in October 2017 FJU was breached for drink driving in Queensland (equivalent reading to low range) after being observed to fail to stop at a red light. In September 2019 FJU was breached for a high range drink driving offence in Sydney whilst displaying green P Plates and was disqualified for nine months and sentenced to a 12 month community corrections order and the interlock (drive prevention program) for two years.
In June 2020 FJU became embroiled in disturbances with members of his family including a heated argument with his mother which caused FJU’s brother and father to contact Police concerning FJU’s mother’s welfare. FJU later became involved in an argument with his father and was said to attack him by a witness. FJU forced his way into his brother’s bedroom and upended belongings and ended up assaulting his brother and father.
FJU was convicted of common assault in relation to this matter and was sentenced to an 18 month conditional release order which expired on 6 November 2022.
FJU was also involved in damaging property in October 2020 and use of offensive language in a public place.
The assault matters caused the Children’s Guardian to conduct a risk assessment under s 14 of the Act because of the matters contained in Sch 1, cl 6 of the Act involving FJU.

The issues to be decided in this application

Is the applicant currently a risk to children having regard to the matters under s 30(1) of the Act.
If the applicant is not a risk to children, would a reasonable person allow his or her child to have direct contact with the applicant that was not directly supervised by another person while engaged in child related work?
If the applicant is not a risk to children, is it in the public interest that he be granted a clearance?

We have decided to summarise the evidence given at hearing so that the strengths of the various arguments can be clearly set out.

FJU’s Evidence at Hearing

In evidence in chief, FJU said that he continues to work teaching his nominated sport with adult students. He also works in a retail shop that supplies equipment for the nominated sport.
FJU’s Solicitor asked him to explain to the Tribunal his ‘journey to recovery’. FJU said that he knew that he made an awful mistake with his girlfriend. He said that he had put a huge amount of work into getting off drugs and alcohol. FJU said that he struggled psychologically. He said that he worked on his depression and anxiety.
FJU said that he thought about alcohol a lot and that 80% or thereabouts of the last three or so years he had been sober. FJU told the Tribunal that he had not had a drink now (May 2023) for 11 months and that the drink he had 11 months prior was not to excess, but to celebrate a birthday.
In respect of the security guard incident FJU said that he had been drinking all day with his friends at the festival prior to the incident. FJU described it as ‘binge drinking’. He said that he was asked to leave and he ran back into the festival area. Security guards forced him out and he said he was quite resistant. FJU said that he then urinated up against a fence or a sign and that the security guards then had their hands on his neck trying to choke him. FJU said that in that context he scratched a security guard.
FJU said that a few years later the incident with his ‘ex girlfriend’ occurred. FJU referred to the matter as a ‘toxic relationship’. He said that he loved her so much but had poor mental health at the time including anxiety and depression. FJU said that one of his family had found the girlfriend on a dating app. As a result FJU said he ‘turned into a horrible person and did the terrible things that I did that night’. FJU said that he struggled to come to terms with what he did, so he drank, in order to come to terms with what he had done.
In respect of the incident involving his brother FJU said that he was out drinking with friends and the alcohol had affected him so much that he made his brother scared enough to call Police.
In respect of the first drink driving matter he said that occurred later in the evening that he assaulted his girlfriend. FJU said that because of the pain that he was experiencing he was drinking a lot as a result.
In respect of the October 2020 property damage offences FJU said that he was still at that time struggling with his drinking. He said that he was being prescribed benzodiazepine. FJU said that he really regretted damaging someone else’s property (car mirror when a woman and her young children were in the car).
FJU’s Solicitor asked him what were the key lessons that he had learnt with seeing his psychologist and attending alcoholics anonymous? FJU said that he had denied for a long time his problems and that he had worked very hard to overcome them. FJU said that he worked with the psychologist to be less reactive to matters. FJU said that he did breathing exercises / techniques and meditation.
In respect of the incident with his brother FJU had told Police that even if he had not been drinking, he would have ‘done it anyway’. However FJU said that the incident was related to his drinking.
FJU was asked about his nominated sport. He said that he loves participating in the sport and smiles a lot more than the average participant. FJU said that he struggled to find a way where he could ‘give back’ to the community after his offending. FJU said that he received praise from the parents of the children he had previously taught and coached. FJU said in his evidence in chief that he ‘gets along really well with ‘(X)’ who is an Olympic Coach in the nominated sport and FJU sad that he would like to get into that area.
FJU concluded his evidence in chief by referring to the fact that he knew all of the children involved in the sport and that he got along really well with all of their parents.
In cross-examination FJU was taken to his two statements appearing pages 216 and 220 of Exhibit ‘R-1’. FJU adopted those statements as true and correct to the best of his knowledge. FJU clarified that in his statement of 19 October 2022 where he refers to having been sober for six months, the reference should read ‘four to five months’ sober. FJU also adopted his Statutory Declaration.
In respect of his treatment by the Psychologist, FJU said that he first saw Ms Neuhoff in 2019. She was the second Psychologist that he had seen. Prior to Ms Neuhoff he had seen another Psychologist immediately after the serious offence against his then partner. FJU said that he was in a domestic violence treatment group while under Parole and he sought to do ‘one on one’ treatment as he thought that would be more productive.
FJU was asked whether he spoke to his general practitioner (GP) about his alcohol use. FJU said that this was raised briefly but he did not really have a GP at this time. FJU accepted that the risk factors to his violent behaviour at the time of his relationship with his girlfriend included controlling and possessive behaviours. FJU said that he ‘loved her so much’ but he did not know what a ‘healthy’ as opposed to ‘toxic’ relationship was at the time. FJU said that counselling discussed being controlling and possessive in a toxic relationship with alcohol use and his reactiveness to situations. FJU said that he worked with the Psychologist a lot concerning his temper.
FJU suggested that his mental health at the time had a huge impact on his offending and his drug use included benzodiazepine, cannabis and cocaine, as well as alcohol. FJU stated that he has had relapses whilst trying to abstain from alcohol and conceded that drinking caused huge issues within his family. He said that he was ‘in denial as to what damage drinking was doing and when’. When he felt anxiety he ‘drank more’. FJU described symptoms such as shaking, his heart racing and sweating due to his use and that he did not go to an alcohol rehabilitation facility because it reminds him of prison.
FJU referred to contacting his Alcoholics Anonymous (AA) sponsor as a strategy to deal with anxiety and the reoccurring urge to drink. FJU said that he feels that he struggles with thoughts of drinking and goes to the gym to distract himself from such thoughts. FJU said that his exercise is slightly compromised because he has a sporting injury (from his nominated sport) in the nature of a soft tissue injury which he sustained seven months prior.
FJU said that he feels angry and frustrated with people from time to time but that he has not engaged in violent behaviour. FJU gave evidence of a ‘guy being in’ his ‘face’ at a sporting area and FJU just walked away. FJU also gave examples in his evidence of being in an aeroplane recently where he became ’overwhelmed’. FJU said that he overcame his anxiety by engaging in breathing exercises and techniques that he had learnt during treatment. He said that he becomes heightened based on anxiety not anger.
After interposing a professional witness and an adjournment, cross examination recommenced approximately two hours later. FJU was asked about his relationship with his girlfriend who he assaulted. He said that it commenced five years prior to the October 2017 offence and that the relationship concluded on the day of the offences.
FJU said that he was passionate about his (nominated sport) and had been so since around 2008. At age 14 he said that his interest in the sport developed into a strong passion. FJU said that he believed that he was a good role model for the sport and the children associated with it. FJU said in evidence that he conducts himself well around children and gives them extra time and is patient with them. FJU said that he does not drink at the (sporting location). FJU said that he believes that he conducts himself in a good way around children and that he is a good role model.
The Children’s Guardian representative took FJU to page 65 of the s 58 documents which referred to the Music Festival incident in Queensland. FJU maintained that the security guard had their hand around his throat regardless of the Police report referring to the security guards being ‘forced to restrain the defendant on the ground…’.
In respect of the domestic violence incident (where his girlfriend was seriously assaulted) FJU outlined the timeline of events and said that he came home around 6:00pm then he went to a friend’s house a couple of kilometres away. FJU described this further as being five to 10 minutes away in the car. FJU said that he drank spirits with the friend and became aware around this time that his girlfriend had a dating app on her phone. There had been prior ups and downs in their relationship but FJU described the relationship as ‘pretty close at that time’. FJU agreed that he sent his girlfriend three threatening text messages and then came home around midnight. He said that as soon as he opened the door he punched his girlfriend in the face and said ‘you deserve this’. FJU said that he went inside and pushed his girlfriend again and again and then put a ‘choke hold’ around her neck. FJU said that he grabbed her by the hair and pushed her into a pillow. FJU said that his memory of what happened from then was hazy.
FJU was referred to [4] of his Statutory Declaration of 22 April 2023 where he states that he ‘lost control’. It was put to FJU that he planned the assault by sending the texts. FJU says that he ‘smothered’ his girlfriend in the pillow’, and described his state of intoxication as ‘10 out of 10 drunk’. However the Children’s Guardian noted that at 1:51am after FJU’s arrest (initially for drink driving) his blood alcohol reading was only 0.066 just over the legal limit and into the low range. It was asked of FJU if it really was his evidence that he was ‘10 out of 10 drunk’? FJU responded yes, and that it would be close to that description. FJU was asked whether there had ever been a time where he remembers being more drunk than on that evening. FJU’s evidence was that he could not remember being more drunk or close to that level of intoxication ever. He said that he ‘can’t remember being a lot more intoxicated than that’.
FJU was taken to his 2019 drink driving (PCA) matter which occurred in Sydney. On that occasion he told Police that he ‘had a few drinks’ (4 schooners of VB between 7:45pm and 10:00pm). On that occasion his reading was high range, 0.199 reading. It was put to FJU that this reading was very close to four times the legal limit. FJU then aid that this was a ‘10 out of 10 intoxication’ and that he felt similarly intoxicated that evening to when the incident with the girlfriend occurred.
FJU was taken to the June 2020 incident involving his brother who I referred to below as the ‘victim’. At page 71 of the s 58 documents the following of recorded:

The accused was intoxicated at the time. As the accused and his mother returned home the accused became aggressive towards his mother and began yelling and screaming obscenities towards her. The victim (brother) heard the commotion and texted his father to assist the mother. The accused began to bang things around inside the house. The victim called for Police assistance due to the aggression of the accused. The victim heard his mother scream, ‘let go of your dad’. The victim exited his bedroom to assist his father. The accused observed the victim exiting his room and rushed towards him. The victim retreated back to his bedroom and tried to lock the door to prevent the accused from assaulting him. The accused forced the door open. The accused grabbed the head of the victim and tore his shirt in the process. The accused began to wrestle with the victim. The father entered the bedroom and tackled the accused keeping him away from the victim. The accused struggled with his father. The struggle resulted in the accused and the father sustaining scrapes and small lacerations to various areas of their upper bodies. The victim fled from the residence to his Grandmother’s residence across … and contacted Police again. ……..
… A short time later Police arrived and separated the accused from his father. …. Due to the accused’s level of intoxication Police requested paramedics attend (the Police station). .. The accused was served his Apprehended Domestic Violence Order whilst in custody.

FJU said in his evidence that he and his brother never got along. He said that there had been ‘years of resentment’. FJU agreed with the account from the COPS Narrative (at [73]) but said that he did not get into an argument with family or his brother as there was no time for any argument. He regretted lying about this to his treating professional. FJU said in evidence that he really cares for his family including his younger brother. FJU referred repeatedly to his ‘drunken behaviour’ and his ‘drunken mistakes’. FJU said that at the time he would get more than 8 out of 10 drunk about once a fortnight. It was put to FJU that he told the Community Corrections Officer that the incident was as a result of an argument.
FJU was taken to page 210 of the s 58 documents whereby the Corrections Officer records that ‘(FJU) explained the new charges as just an argument with his brother that got out of hand’. It was put to FJU that he told his Corrections Officer about the argument as a lie and that by referring later in the discussion to the subject of the argument being a stupid thing to argue about, as building on a lie. The officer does not record any ‘subject’ or basis for the argument other than FJU’s behaviour.
FJU said at [5] of his Statutory Declaration that he had not been violent since the incident with the brother. However FJU was taken to the incident with the woman and children in the parked car. FJU said that the woman was on her phone and there were three children in the car. He asked to use her phone She said no, as she was on a call. FJU said that he did not remember hitting the side of the car in response and breaking the side mirror from the car after verbally abusing the woman (in strong language). FJU did not accept when doing his Statutory Declaration that the abuse matter was a violent act.
FJU made the following statement to the Tribunal in part responsive to the instances of adverse matters that were being put to him in evidence. FJU said: ‘I don’t want to minimise once again. My terrible behaviour on that night (referring to the assault on his girlfriend) was appalling.’ FJU said that his references to matters not being assaults or violent behaviour was not a lie, but that he now accepts that incidents that in his mind were not assaults (such as the woman and children and the car mirror) might cause harm to children in the car.
FJU said that illicit and legal substances impacted on his mental health. He also said that others do not view him today as someone who would engage in the terrible behaviours of his past. FJU said that drugs and alcohol are the one or main cause and issue that impacts on his mental health. FJU referred to two friends ‘B.J.’,‘C.W.’ and ‘S’ that he used to drink with. He said that he no longer associates with them and does not see them at all now. He said that he ‘had not seen B.J. for a bit over a year’ ‘C.W.’ and ‘S’ for a bit over a year ago and ‘J’ for over six months. FJU said that it was a friend of ‘J’ who last gave him cocaine.
FJU said that he uses alcohol strategies such as playing pool, engaging in his nominated sport, and playing darts. FJU confirmed that a lot of this occurs on licensed premises. As previously mentioned, breathing techniques and distraction strategies are utilised. FJU said that his love and desire of (his nominated sport) as referred to at [12] of his Statutory Declaration would ensure that he would not fall back into offending. His sport predated what FJU referred to as ‘the terrible behaviour’.

FJU said that he joined A.A. in December 2022 and that today he has not consumed alcohol for about 8 months. FJU said that he is associated with a large group in his sport and this is a positive social group who live healthy lives because excessive alcohol and drugs would impact their performance. FJU said that this group ‘does not party’. When struggling with his sporting injury FJU said he could not engage in the sport as much and instead engaged in a lot of self improvement.
He had been coaching / teaching the sport to children and adults up until the time of the interim bar from application on 19 February 2021 to the bar on 14 April 2021. That period was the only time that FJU said that he worked with children.
FJU confirmed that he told Children’s Guardian staff during the bar and related process that he ‘felt like jumping off a cliff’. This was recorded at page 41 of the s 58 material and FJU said that he made the comment due to the imposition of the Interim Bar. There was reference at page 80 of the bundle tendered in respect of the Psychologist notes to FJU getting angry with parents who brought their children to lessons whilst the children were sick. FJU said that he was not ‘angry’ with them but noted that it was recorded that way.
FJU was taken back to the assault on his girlfriend and that he told Dr Dayalan that he got into an argument with her and later the matter with his brother started by an argument. FJU said that words were spoken even though violent behaviour occurred. FJU said that these words placed the matters in a context and that was what he was trying to convey.
In re-examination FJU was asked about the incident and relationship with his brother. FJU said that there were lots of little arguments prior to the incident.
FJU said that he commenced using illicit drugs in 2018. FJU said that he was first prescribed benzodiazepine after assaulting his girlfriend. FJU’s representative asked him whether at the time of his offence he had consumed alcohol. FJU said that he had. In respect of his reference in his statutory declaration that he had not been violent with anybody since the incident with his brother, FJU said that by the words he was referring to physically hitting someone, and he did not mean that the incident with the parked car was not violent.

Evidence of C Neuhoff

In evidence in chief the witness confirmed that they were a Registered Psychologist and FJU had been a patient since July 2019. The witness had provided treatment and the treatment was fairly regular until Covid 19 restrictions impacted the sessions. But they were still occurring fortnightly or weekly over video or telephone.
The witness confirmed that she did not and does not provide any diagnosis for FJU. Her role was to provide treatment only concerning FJU’s generalised anxiety, depression and substance abuse. The witnesses said that they sought to achieve behavioural change utilising CBT therapy and that FJU was accepting and committed to that treatment. Symptoms had improved and the witness was looking to make adjustments and increase FJU’s pro-social behaviours.
The witness said that they discussed domestic violence / abuse issues with FJU concerning the ex-girlfriend and there had been progress on dealing with the underlying issues. The witness said that there was a big change that they noted in respect of FJU abusing substances as a coping mechanism for his maladaptive behaviours and this had abated over the period of treatment. The witness said that FJU had an awareness of the triggers and that he employed strategies for avoiding the triggers.
The witness said that FJU was engaging more in treatment and potentially engaging more with his family. Some of this better engagement was down to sleep hygiene and a healthy diet. FJU’s sleep quality was now improved as was his eating behaviour, in that he was eating ‘better quality foods’.
Importantly the witness said that FJU was maintaining sobriety. This behavioural change had been maintained. The witness said that this was because of a lack of substance abuse. Reference was made to a problematic area of self entitlement still being a risk factor. However the witness said that they do not hold any concerns for FJU engaging with children.
The witness confirmed that she did not and cannot provide a risk assessment for FJU.
In cross-examination a question was asked around the reference in the report to the Dunlap Model of treatment. The witness said that this was a gender based Cognitive Behavioural Therapy model used for men involved in domestic violence. The witness confirmed that ‘problematic self entitlement, substance abuse, and alcohol etc.’ are the main contributors to the problem.
The witness clarified that they had not done any assessment because of the therapeutic relationship with FJU.
The Tribunal asked questions of the witness consistent with it powers under s 38 of the NCAT Act. The witness confirmed that they had not confirmed any of the information with FJU’s family and that the evidence she had given was based only on what FJU had told her.

Evidence of Dr Dayalan

FJU’s expert gave evidence on the second day of the hearing. Dr Dayalan prepared two reports which were received as Exhibit ‘A-1’ (report of 10 October 2022) and ‘A-2 (report of 1 April 2023).
In evidence in chief the witness confirmed that he was a Forensic Psychiatrist. Details of his current work were outlined involving both clinical patient and contract work. At page 13 of ‘A-1’ Dr Dayalan was asked about and outlined the risk assessment tools used and the static and dynamic factors. Dr Dayalan confirmed that in his view the risk of violence was low and that FJU’s risk factors had stabilised. Dr Dayalan said that he had seen FJU on three occasions and has seen progress which has been verified by FJU’s mother.
Dr Dayalan stated that he could not be certain that the changes in risk were definitely for the long term. Dr Dayalan said that it was considered ‘likely’ that the progress to date would continue. Dr Dayalan was asked about page 15 of ‘A-1’ whereby he addresses risk but does not agree when referring to the Children’s Guardian’s concerns about FJU’s substance abuse behaviour. Dr Dayalan said that the longer there was abstinence of behaviour around substance abuse then the better the reduction of risk.
Dr Dayalan confirmed in his evidence in chief that he conducts formal risk assessment as an implicit consequence of every time you review a patient as a Forensic Psychiatrist. His experience conducting formal risk assessments include every fortnight at the Forensic Hospital and he agreed with the proposition that he would have conducted assessments on thousands of individuals. When asked whether FJU appeared to show or indicated remorse for his actions during his sessions Dr Dayalan said that FJU did make a number of statements by way of remorse for his actions. He said that he ‘got the feeling’ that FJU was feeling remorse especially about the harm that he had caused to his ex-girlfriend and his brother.
Dr Dayalan confirmed that he conducted assessments of FJU on 14 August 2020, 23 September 2022 and 17 March 2023. In respect of treatment and intervention Dr Dayalan’s evidence was that there is not a lot of scientific evidence supporting value in interventionist programs. When asked about interventionist programs such as A.A. on FJU the witness provided generalised comments on the effectiveness of these programs. Dr Dayalan was also asked to comment on the effectiveness of abstinence from alcohol and narcotics and whether it was beneficial for FJU. Dr Dayalan said that since abstinence FJU’s occupational functioning was better and he had better relations with family members.
Dr Dayalan said that the steps that FJU had taken resulted in a reduction in the dynamic risk factors.
In cross examination Dr Dayalan was taken to Exhibit ‘A-7’ which is the ‘CDT’ (Carbohydrate Deficient Transferrin) alcohol uptake report document for FJU referred to above at [36] as a ‘Pathology Report’. The witness was asked about the document and his evidence was that such a test and report only references excessive alcohol and recentness, not alcohol use in and of itself.
Dr Dayalan was referred to the music festival incident with the bouncer, the drink driving matters a couple of hours after the serious assault on the girlfriend, the second drink driving matter in June 2020 in Sydney, the incident with FJU’s brother after an afternoon of drinking and the issue of minor malicious damage with the woman with her children in the car. Dr Dayalan agreed that FJU suffered from Alcohol Use Disorder, Cannabis use Disorder and Benzodiazepine Disorder as set out in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Orders: DSM-5 (5th ed, 2013, American Psychiatric Association) (DSM – V).
Dr Dayalan said that FJU had symptoms consistent with a mild to moderate impairment based on FJU’s own evidence. Dr Dayalan said that he was told (and surmised) that FJU on more than one occasion drank more than he expected to. Dr Dayalan agreed with the proposition that those that have had these disorders have a higher propensity to having them diagnosed in future, when being asked about the ‘CDT’ test. Dr Dayalan agreed that the best predictor of future conduct was prior conduct. At this point the witness was taken to an extract at pages 543-561 of the DSM – V which was tendered as ‘MFI-1’. In the chapter titled ‘Substance-Related and Addictive Disorders’ reference is made at page 559 to:

Regarding laboratory tests, one sensitive laboratory indicator of heavy drinking is a modest elevation or high-normal levels (>35 units) of gamma-glutamyltransferase (GGT). This may be the only laboratory finding. At least 70% of individuals with a high GGT level are persistent heavy drinkers. (I.e., consuming eight or more drinks daily on a regular basis). A second test with comparable or even higher levels of sensitivity and specificity is carbohydrate-deficient transferrin (CDT) with levels of 20 units or higher useful in identifying individuals who regularly consume eight or more drinks daily. Given that both GGT and CDT levels return toward normal within days to weeks of stopping drinking, both state markers may be useful in monitoring abstinence, especially when the clinician observes increases rather than decreases in these values over time – a finding that the individual is likely to have returned to heavy drinking.

Dr Dayalan agreed that in respect of Alcohol Use Disorder the risk factors can quickly increase (by drinking again), and this will often be due to external factors impacting on the subject. Dr Dayalan recommended that FJU be periodically reassessed to determine the imposition of, and any change to dynamic risk factors.
Dr Dayalan agreed that impulse control would have played a significant role in FJU’s offending behaviour. The witness also agreed that minimising behaviour by FJU around his conduct might be indicative of a lack of insight. Dr Dayalan agreed that a person with a history of violence like FJU possess a greater risk of harm to children that the risk posed by any other person without that history.
In respect of the Alcohol Use Disorder diagnosis, Dr Dayalan said that the research looks at the relative rates of people engaging in treatment, contrasted with those not engaging in treatment.
In re-examination Dr Dayalan was asked whether FJU’s insight into his offending behaviour improved during the periods of the three assessments. The witness said that it had improved during that time.

Submissions

Applicant’s position / submissions

Both the applicant and respondent provided written submissions and made oral submissions at the end of the receipt of evidence. The applicant’s oral submissions were brief and he was given a chance to put matters in writing after the closing of the evidence so that he could fairly make his case. The respondent was given the opportunity to provide a written response to those matters.
In prehearing submissions prepared in May 2023 FJU submitted that he had travelled a long journey to ‘recovery’ from his alcohol induced violent behaviour. References were made to failed participation in a domestic abuse program before finding his Psychologist C Neuhoff in July 2019. His progress was peppered with reoffending and was referred to in submissions as two steps forward one step backwards.
It was submitted that from June 2021 FJU fully committed to change his life. It was then submitted that he had achieved full recovery in part by being ‘crime free’ since October 2020. Reference was made to the 91 sessions up to May 2023 with Ms Neuhoff (and continuing).
Reference was also made to FJU predominately being sober since 2020. The CDT test was referred to as determinative of FJU’s sobriety. Submissions were made responding to the s 30(1) criteria noting FJU’s ‘sincere and deep regret and shame’ and that since the refusal there had been no adverse matters. Whilst FJU was under sanction from conditional Court orders until November 2022, his representative submitted that since that time the Tribunal could be confident that absent those conditions, he will not reoffend.
Submissions were made that none of FJU’s actions were directed at children so his risk was in a different context. Additionally submissions were made that FJU had committed no offences from the list in schedule 2 of the Act, so again his risk was diminished. Submissions contrasted the Children’s Guardian reference to one offence being ‘extremely serious’ as a ‘poor and concerning behaviour’ where there were many offences in the criminal cannon which were more serious.
Reference was made to cases whereby applicants had committed crimes of a sexual nature against children (indecent assault) but had still been allowed to work with children. Submissions were made that FJU had matured and that as his offending was related to alcohol, he has matured and received professional treatment so as to no longer pose a risk of offending.
Submissions were made as to FJU’s credibility, the position that he had declared that he would continue to attend A.A. and that he was candid and forthright. References were made to academic studies about offending and young males propensity to reoffend where drugs and alcohol and treatment was relevant. The Tribunal notes (as stated below) that adult offending generally decreases with age especially from middle age onwards. Further submissions were made in response to the Children’s Guardian’s initial submission which have been considered by the Tribunal.

Respondent’s position / submissions

The case against FJU is summarised in the decision. The Children’s Guardian referred to the statutory test from the case of BKE as to how the Tribunal should make findings of fact and assessment of risk.
At [33] of BKE v Office of Children’s Guardian [2015] NSWSC 523 the Supreme Court observed:

.. 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.

It was submitted that the Tribunal’s task is not limited to considering risk in the context or nature of child related work, but whether FJU poses a risk to the safety of children. The Children’s Guardian submitted that following the s 30(1) consideration the Tribunal would arrive at the same outcome as the Guardian had when considering the facts in the context of s 15(4) of the Act. In addition they submitted that even if the Tribunal passed through the s 30(1) without making a finding that FJU was a risk, the s 30(1A) criteria would bar FJU obtaining a clearance.
The Children’s Guardian submitted that FJU posed a risk to the safety of children. The Guardian submitted that ‘FJU has a recent history of repeatedly engaging in extremely violent and dangerous offending. Each incident posed a risk of bodily harm and / or death to the victims of those offences. Those offences all took place within the last six years’. Further submissions referred to: ‘FJU’s indiscriminate offending against both stranger and known victims, violent conduct attracting an extremely high risk of serious harm and the recency of FJU’s conduct in combination, demonstrate that FJU poses a risk to the safety of children’.
Submissions also addressed the reasonable person test and that FJU’s recent and extremely serious violent offending would lead a reasonable person not to permit their child to have unsupervised contact with FJU while engaged in child related work. Likewise on the public interest it was submitted that the Tribunal should have regard to the detrimental impact that offending of this nature has on society generally, including children (especially children who witness it). It was submitted that FJU’s skills and experience as a coach in his nominated sport were of relatively low weight when considering the public interest as opposed to skills in the health or education sector.

Post hearing submissions

FJU filed submissions in response, (September 2023) broadly addressing the evidence adduced at hearing and the statements and submission of the Children’s Guardian. The Tribunal has considered these detailed submissions which repeat (understandably) many of the matters outlined in the evidence we have set out above.
One matter of note being FJU seeks a clearance and failing that, in the alternative a conditional clearance whereby he would be supervised during child related work. Under the Law in New South Wales we note that conditional clearances are not available. This issue has previously been addressed by the Tribunal in various cases reported and unreported, especially in the context whereby the only risk arises in a work health and safety context that could be cured by supervision, i.e. where a workers physical disability solely creates the risk, such a risk that could be overcome by occupational assistance. We note for completeness that FJU’s situation and submission does not concern disability but a general fall back request in the context of agreeing to have his work monitored from a conduct perspective when working with children.
The Children’s Guardian responded by way of submissions filed in November 2023. Reference was made to some discrepancies in the evidence such as the low alcohol (0.066 reading) within 90 minutes of the serious assault on the girlfriend), contrasted with his evidence of being ‘10 out of 10 drunk’ and never having been as, or more intoxicated ever.
Submissions were also made about the inconsistencies concerning the second DV incident with the family whereby FJU on the one had reported that it was caused by an argument with his brother. On the other hand he said there was no argument. This was submitted as minimising the conduct and the context of the matter as somehow being provoked when it was not.
References were made to Ms Neuhoff’s evidence being of limited use as it was entirely based on inputs received solely from FJU and minimal information from correspondence with the GP. She also had no experience of FJU outside the treatment room and was therefore unable to appropriately comment that she had ‘observed no behaviour that would indicate (FJU) being of any threat to the safety of children should he be working with them’.
Dr Dayalan’s evidence was also referred to in submissions. Reference was made to Dr Dayalan’s evidence where he opined that ‘FJU posed a “slightly enhanced” risk to children (amongst others) than a person who had not seriously assaulted their partner’. The Children’s Guardian submitted that on this evidence alone the opinion reflects a real and appreciable risk greater than the risk posed by any ordinary adult.

Submissions were made that the reasonable person would be concerned about FJU’s conduct generally in the presence of their child even if they could be comfortable that that FJU would be unlikely to directly target their child with violence. This was relevant to the test that a reasonable person must permit their children to have direct unsupervised contact with FJU in the course of any child related work (not just in the nominated sporting area).
FJU was given the benefit of the final reply and in closing submissions in reply filed 15 November 2023 referred to some unfair inferences about how his evidence was adduced. We have noted those matters. In proceedings where the rules of evidence do not apply but there is a general requirement to ensure fairness the Tribunal makes no adverse findings against FJU concerning his evidence about the malicious damage offensive language incident from 2020.

Consideration

Section 30(1) considerations

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.

The applicant's application to the Tribunal is brought about by an adverse risk assessment triggered by the respondent becoming aware of a series of matters concerning violent behaviour. These matters are serious in that most of the matters had the potential to cause harm to children if children were present as they were in at least one of the incidents.
The matters that caused the assessment are set out at [39] – [46] above. FJU’s conduct is considered serious noting the nature of the offences, the fact that the most serious matters were offences of violence and that as a second offender, FJU was sentenced to a period of imprisonment. FJU engaged in offending that could be considered at times indiscriminate, attacking victims when he became enraged. This behaviour is considered to be a significant risk of causing future harm.
Alcohol was a factor present in all instances. Alcohol abuse was and may be in future a risk factor.

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

It is clear that the matters referred to under s 30(1)(a) cover a five year period form 2016 to 2020. At the time of the hearing it was close to six years since the most serious offending (the violent assault on FJU’s girlfriend). Since then at least two other incidents involving violence have occurred as well as serious matters concerning alcohol abuse.

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

FJU was 18 at the time of the music festival incident, 20 years old at the time of the serious first domestic violence incident involving the girlfriend, and 23 years old at the time of the family (second) domestic violence incident and the malicious damage incident in October 2020..

(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.

In respect of the trigger matters the victims were security guards, of unknown age, and FJU’s then girlfriend who had turned 18 at the time. FJU’s brother was a young adult at the time of the second domestic offence and young children (of unknown age) where present in the car when FJU swore and smashed the car mirror. The children’s mother was older than FJU but as a woman would have also been vulnerable.
In respect of the domestic violence offence involving the girlfriend the victim would have been particularly vulnerable because she was female and FJU is male. He was larger and older than her and he tried to choke her on at least two occasions after severely assaulting her from heavy blows to the face. The victim would have been petrified in that context with FJU acting in a rage. She required Hospitalisation for her injuries.

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

Based on the age range set out (above) the difference in age between the applicant and the victims of the first and second domestic offences was approximately three years, FJU’s younger brother and then girlfriend both being two to three years younger than FJU. The victim of the first domestic and arguably the most serious incident of FJU’s offending, was at the time his girlfriend. They were in a close intimate personal heterosexual relationship whereby the victim was female.
In respect of his brother, whilst FJU gave evidence that he and his brother had a strained relationship it was unclear as to whether that had been longstanding or was related to some other behaviour such as FJU’s alcohol use and abuse. It is clear that on the day of the incident the brother was trying to obtain assistance for his parents due to FJU’s extreme behaviour.

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

FJU clearly knew that the matters (other than the malicious damage incident of October 2020) did not involve children. It is unclear whether due to his intoxication FJU was aware that children were seated in the car with their mother.

(g) The person's present age.

FJU was 26 years old at the time of the hearing. The relevance being that offending generally declines with age and significantly past middle age.

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

FJU has a criminal record showing a serious criminal history. In 2016 the Court found FJU guilty of assault and drug offences and he was given a good behaviour bond without conviction.
In 2017 FJU was convicted of Assault Occasioning Actual Bodily Harm and Strangulation in a Domestic Setting and sentenced to two years in prison. He was also convicted of (the equivalent of low range) drink driving.
In 2019 whilst on parole FJU was convicted of high range drink driving.
In 2020 FJU was convicted of Common Assault and placed on an 18 month conditional release order as well as having ADVO’s issued against him. Later that year in October he was convicted of malicious damage and offensive language and fined.
Since October 2020 FJU has been offence free but until November 2022 he was under the conditions of earlier sentences. FJU has had periods of abstaining from alcohol use coupled with other periods of alcohol use. In addition to no criminal matters since October 2020 FJU has sought professional assistance in respect of his drug and alcohol use. Whilst FJU maintains that his current period of abstinence is longer term and significant, there are previous periods of relapse and this remains a risk.
Nothing has come to light in the last three years. In making this observation we note that FJU has not been working with children since the imposition of the Interim Bar.

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

FJU provided an Expert Report which following testing and assessment provided a risk of harm rating. Whilst the Expert reported that the applicant was a low risk of causing harm to children the Expert couched the opinion as ‘(FJU’s) risk of harming children is not significant enough to warrant denial of a Working with Children Check clearance’. The expert did not engage on the statutory test or consideration that the risk would be greater than that of any person causing harm to a child.
The expert referred to a lack of presentation of clinical risk factors and progress by increasing FJU’s social support. In his substantive report (Exhibit ‘A-1’) the Expert noted:

It is a valid comment that a protracted period of stable presentation will reduce the level of risk posed in the long term. Longer the period of stable mental state and abstinence from substances, there is greater confidence that the stable presentation would continue. There is however, no scientific means of determining the length of period that a person needs to remain stable before any risk reduces.

It is clear that if FJU’s violent behaviour was to be repeated in any way towards children or with children present, then it would cause harm to those children. The Children’s Guardian noted that FJU engaged in three separate incidents of violent offending in three years and that it was only four years since that offending at the time of hearing. They submitted that whilst FJU explained all of his offending in the context of alcohol abuse, on the night of his most serious offending, involving a serious violent assault, he was a short time afterwards breached for the equivalent of low range drink driving. Whilst not legal to drive a motor vehicle the reading does cast some doubt on FJU’s evidence that he was ‘10 out of 10 drunk’ at the time.
On the one hand alcohol may play a factor in FJU’s propensity to reoffend in similar violent circumstances but it would not appear to significantly explain away his behaviour. The evidence indicates that to the extent that alcohol may be relevant to his re-offending FJU’s abstaining from alcohol has not been total.

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

There is no relevant evidence or matters to consider under this criteria, all previous orders and conditions having by now expired.

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

FJU tendered a number of character references in support, and the expert report. The applicant also provided a signed statement and statutory declaration. He has expressed general regret for his actions and his expert noted signs of remorse during the assessment sessions. None of his character witnesses were required for cross-examination at hearing.
It appears that FJU, whilst applying to work with children, other than alcohol abstinence and managing his breathing, he has no other strategies in place to ensure an avoidance of offending if he were to engage in child related work.
FJU provided a letter of support from his treating psychologist referring to A.A. support as well as personal health goals and healthy habits. Further observations are made about pro-social behaviours by FJU including involvement with family and cutting off or distancing from prior detrimental friendships. The other references are mainly personal references whilst they all refer to the criminal past in general terms noting at times the custodial sentence they would appear to be of minimal weight in determining the risk of FJU to children.

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

There is no material obtained under s 36A.

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

The Children’s Guardian referred in written submissions to FJU’s habitual engagement in extremely violent and disinhibited conduct which involved at times extreme risk to human life.
The Children’s Guardian submitted that FJU presents a risk to any person to whom he is exposed, not just children. They referred to his ‘uncontrolled violent behaviour, … a level of extreme entitlement, ... and a preparedness to use violence to exert control over those around him.’
The Children’s Guardian also submitted that if the Tribunal found that FJU’s behaviour was attributable or referrable to alcohol consumption as FJU asserts, then it would be concerned that FJU has abstained from alcohol for less than a year at the time of hearing. The Children’s Guardian submitted that due to the extremely serious risk posed by the offending and the relatively short time since the offending, and shorter period since FJU ceased alcohol consumption, then at present, the Tribunal should find that FJU poses a real and appreciable risk to the safety of children.

The statutory approach

As noted above the case of BKE v Office of Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Like the facts in BKE, certain matters in the current case were not settled, in that the Courts had not been a position to make any positive findings on the conduct and the applicant, especially in respect of his drink and drug use. However the main matters traversed have been subject to Court adjudication.
At pars 29-33 of BKE the Court observed:

29. In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).
30. Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at p 70).
31. In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):
“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

32. The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).
33.The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

Our substantive role is to assess risk, and whether specifically the applicant poses a risk to the safety of children and young people. We have based our consideration on all of the evidence given by the FJU at hearing (and in documentary form), and for this reason we have set out above much of the evidence adduced at hearing.
The important matter to consider is that our ultimate task is to consider whether at present FJU poses a risk to the safety of children. Matters as to FJU’s credibility have some role to play but are not major elements of considering risk. Whilst an untruthful applicant might breach boundaries or engage in unpredictable behaviour, FJU’s character is only under scrutiny to the extent that he may (or may not) pose a risk to the safety of children. We are not considering whether he is a fit and proper person to work with children, but in determining whether he poses a risk there may be some overlap with these notions.
We make these observations because it was apparent to us during the hearing that FJU was seeking to cast himself in a good or favourable light generally, and that whilst accepting of his adverse conduct and behaviour, he was focused on ‘recovery’ ‘mindfulness’ and ‘rehabilitation’, which were all terms referred to at times in his oral or written material.
We note that FJU’s recovery and rehabilitation my go some way to assisting us in determining risk. However risk is determined on the basis of all relevant evidence before the Tribunal.

Findings

The necessity to make findings on adverse matters was set out in part in BKE and further addressed in the case of Office of the Children’s Guardian v CFW [2016] NSWSC 1406. In that case His Honour Harrison J said that the first proposition is to determine whether a positive finding can be made or whether the allegations can be quickly addressed as groundless. If a positive finding can be made then that matter will generally have a decisive impact on the outcome of the application. In CFW the Court also referred to a lingering doubt where a positive finding could not be made and the matter was left open. The Court observed that this would count against the applicant.
However in the case of Children’s Guardian v CKF [2017] NSWSC 893 Davies J observed that the final proposition from CFW cannot be correct. At [56] the Court observed:

56. With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or “a lingering doubt or suspicion” counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children.

We note that the ultimate criminal findings were not refuted or were not able to be refuted by the FJU. One matter of concern whoever was FJU’s evidence which focused on the most serious incident (the DV assault on girlfriend) being carried out when he was ‘10 out of 10 drunk’.
Without repeating all of that evidence we note that FJU was drinking after he left the residence and went to the friends house that evening and sent the threatening texts. We note that when he returned and seriously assaulted his girlfriend he then directed her to obtain alcohol for him which she did. The evidence that 90 minutes later he gave the low range reading to attending Police (as set out in some detail above) is in stark contrast to FJU’s account of his intoxication. Having considered those matters we find to the requisite standard that we do not accept FJU’s evidence about his level of intoxication when he seriously assaulted his Girlfriend.
Like the observation in CKF we referred to of the totality of the evidence and the necessary approach. We note that this was confirmed by the Children’s Guardian at the close of the evidence. Therefore on the major issues of concern the findings of fact are not in dispute. In our view for those reasons there is no need to make positive findings on every allegation. However we adopt all of the Court findings and make a finding that in respect of the most serious assault the role of alcohol was not as great as FJU submitted. Whether alcohol and drugs were as relevant in the other matters turns on the facts. It is clear that in the significant maters they were present and therefore a factor.
For the purposes of assessing risk the significant matters have been conceded. FJU admits that his prior behaviours were adverse and problematic, and that they caused harm.
The real issue from a risk assessment perspective is the nature, similarity, frequency and recentness of the matters. There appeared to be only a slight acceptance that such behaviours had the potential to cause harm to children and would cause harm to children in the future. It is clear that FJU has had difficulty regulating his behaviours in times of stress. However we note that at the time of his offending, the Children’s Guardian characterised FJU’s actions as: ‘FJU’s indiscriminate offending against both stranger and known victims, violent conduct attracting an extremely high risk of serious harm and the recency of FJU’s conduct in combination, demonstrate that FJU poses a risk to the safety of children’.
As the task of the Tribunal is to determine risk, then consideration of allegations and the need to make findings about them is relevant only to that task. Risk is to be assessed in respect of the present and future not an applicant’s past risk to children. However past behaviour can be an indicator of future behaviour being a concept accepted by criminal courts in sentencing.
Overall we observe that in respect of the matters, FJU’s actions were serious, and problematic but not indicative of preying on children. Where we observe that they were not indicative of preying on children we do not need to make any finding about that matter. The evidence merely leads us to that conclusion.
The totality of the evidence supports a position where FJU was unable to regulate his behaviour. Whether this was solely attributable to drug and alcohol use we do not know.
In respect of his current and future risk whilst we have significant regard to the findings of the expert report, we note that Dr Dayalan did not fully engage on the statutory test. Like the Children’s Guardian we note that the expert found that: ‘FJU posed a “slightly enhanced” risk to children (amongst others) than a person who had not seriously assaulted their partner’. We agree that the evidence leads us to the conclusion that FJU at the time of that assessment and opinion, poses a real and appreciable risk greater than the risk posed by any ordinary adult.
Whilst there have been significant interventions and treatment, all of which are commendable, we cannot be satisfied that at present FJU does not pose a real and appreciable risk to the safety of children.
In the case of CXZ v Children’s Guardian [2020] NSWCA 338 the Court considered the protective rather than punitive nature of the Act and the working with children scheme.
Based on a consideration of all of the evidence, we are satisfied that FJU currently poses a real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, based on consideration of all the circumstances we find that FJU does currently pose a risk to the safety and well being of children and young persons.
In our view the risk is greater than that of any adult harming a child in reference to the observation of Young J in the case of ‘V’, at [42].

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for 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". ...'

We note that the safety, welfare and well being of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act.
It is of limited relevance (when referring to violent conduct) that the vast majority of FJU’s actions were neither directed at children or did not cause harm to children. The issue is whether he is a risk to children.
It may be that with the passage of time, and management of his drug and alcohol intake (which is clearly ongoing but productive), further time and treatment will lower FJU’s risk of causing harm to children. The possibility of a relapse remains alive especially as some of FJU’s offending occurred whilst engaged in treatment and under active sentence.
In reaching this position we note that it is a protective jurisdiction, and that the interests of the safety and well-being of children override any other interests.

Section 30(1A) consideration and findings

The section requires the reasonable person to allow his or her child to have direct contact with the affected person that was not directly supervised by another person whilst engaged in child related work. In addition the section requires that the making of the order be in the public interest.

(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.

Having made the finding that we have, we are not required to have regard to this section because we are not making an order under Part 4 of the Act which has the effect of enabling a person (the affected person) to work with children in accordance with this Act
The Tribunal is also required to consider section 30(1A)(b) that it is in the public interest to make the order. As we are not making an order under Part 4 of the Act which has the effect of enabling a person (the affected person) to work with children, we are also not required to address this section.

Conclusion

For the reasons set out above, we reach the following conclusion.
The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that FJU currently poses a risk to the safety of children.
In our view, having regard to all of the material before the Tribunal, we therefore find that FJU currently poses a risk to the safety of children.
It therefore follows that the correct and preferable decision is to affirm the decision of the Respondent dated 4 June 2022 to refuse the application for the clearance and dismiss the application.
The application will therefore be dismissed.

Orders

The decision of the respondent dated 4 June 2022 to refuse the applicant’s Working with Children Check Clearance is affirmed.
The application is dismissed.

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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: 05 April 2024

Medium Neutral Citation:	FJU v Children’s Guardian [2024] NSWCATAD 90
Hearing dates:	15 May 2023, 3 August 2023 Submissions closed 15 November 2023
Date of orders:	05 April 2024
Decision date:	05 April 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M Bolt, General Member
Decision:	(1) The decision of the respondent dated 4 June 2022 to refuse the applicant’s Working with Children Check Clearance is affirmed. (2) The application is dismissed.
Catchwords:	ADMINISTRATIVE LAW — child protection — working with children — risk to children whether risk real and appreciable — allegations — circumstances of allegations — weight of evidence of risk — current risk — expert evidence — future risk — whether sufficient time to rehabilitate — risk elevating factors
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Child Protection (Prohibited Employment) Act 1998 (Repealed) (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW)
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children's Guardian [2014] NSWCATAD 111 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of Children’s Guardian [2015] NSWSC 523 Children’s Guardian v CKF [2017] NSWSC 893 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 M v M (1988) 166 CLR 69 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Tilley v Children’s Guardian [2017] NSWCA 174
Texts Cited:	American Psychiatric Association, Diagnostic and Statistical Manual of Mental Orders: DSM-5 (5th ed, 2013, American Psychiatric Association)
Category:	Principal judgment
Parties:	FJU (Applicant) Children’s Guardian (Respondent)
Representation:	Solicitors: Benjamin & Khoury Solicitors (Applicant) Crown Solicitor (Respondent)
File Number(s):	2022/00198369
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, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.