GFL v Children's Guardian

[2024] NSWCATAD 345

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GFL v Children’s Guardian [2024] NSWCATAD 345

Hearing dates:

25 June 2024

Date of orders:

15 November 2024

Decision date:

15 November 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Senior Member
R Royer, General Member

Decision:

The decision of the respondent, made on 1 February 2024, to cancel the applicant’s working with children check clearance is set aside and in substitution thereof a decision to grant the applicant a clearance under section 18(2) of the Child Protection (Working with Children) Act 2012.

Catchwords:

ADMINISTRATIVE LAW – child protection – cancellation of a working with children check clearance – whether applicant poses a real and appreciable risk to the safety of children – history of domestic violence related assaults and breaches of apprehended domestic violence orders

ADMINISTRATIVE LAW – application of the reasonable person test and public interest test in section 30(1A) of the Child Protection (Working with Children) Act 2012

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Child Protection Legislation Amendment Act 2015 (NSW)

Child Protection (Working with Children) Act 2012 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed)

Prevention of Cruelty to Animals Act 1979 (NSW)

Working With Children Act 2005 (Vic)(repealed)

Worker Screening Act 2020 (Vic)

Cases Cited:

CHB v Children’s Guardian [2016] NSWCATAD 214

DGH v Children’s Guardian [2018] NSWCATAD 130

DGZ v Children’s Guardian [2022] NSWCATAD 250

DPH v Children’s Guardian [2019] NSWCATAD 202 ELJ v The Children’s Guardian [2021] NSWCATAD 51

FLE v Children’s Guardian [2023] NSWCATAD 89 FND v Children’s Guardian [2024] NSWCATAD 125

Holbrook and Australian Postal Commission (1983) 5 ALN N46

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1

OYJ v Secretary of the Department of Justice & Regulation (Review and Regulation) [2019] VCAT 33

PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514

Re Eckersley and Ministerfor Capital Territory (1979) 2 ALD 303

ZZ v Secretary Department of Justice [2013] 267

Texts Cited:

Nil

Category:

Principal judgment

Parties:

GFL (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s):

2024/00054548

Publication restriction:

Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure by way of publication of the name of any person mentioned in the proceedings or referred to in the documentary material lodged in these proceedings other than the name of an expert witness or the officer of a government agency, is prohibited.

reasons for decision

1. The applicant, GFL, is a registered nurse and has made an application, under section 27(2) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), seeking administrative review of the decision of the respondent, the Children’s Guardian, to cancel her working with children check clearance (WWCC clearance). The respondent’s power to cancel a person’s WWCC clearance is set out in section 23(1) of the WWC Act which provides as follows:

23   Cancellation of clearances

(1)  The Children’s Guardian must cancel the working with children check clearance of a person if the Children’s Guardian becomes aware that the person is a disqualified person or the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

2. The applicant is not a ‘disqualified person’: see WWC Act section 18(1). However, having conducted a risk assessment, the respondent determined that the applicant poses a risk to the safety of children.

3. The applicant was granted a WWCC clearance on 21 November 2019 that authorised her to engage in paid and unpaid child-related work.

4. On 11 November 2022, the respondent notified the applicant that:

1. due to pending and previous domestic violence related charges made against her, she was subject to an assessment requirement under sections 14 and 15 of the WWC Act; and

2. a decision had been made, under section 17(1) of the WWC Act, that she be subject to an interim bar, which prevented her from engaging in any child-related work.

5. The victims of the applicant’s domestic violence related charges were two former partners, her mother and sister.

6. On 13 December 2023, the respondent notified the applicant that, based on the information that was held, the respondent was proposing to cancel her WWCC clearance. The applicant was advised that it was not a final decision and, pursuant to section 19 of the WWC Act, she had an opportunity to respond. Attached to the notice were two attachments. Attachment A to the notice, contained a summary of the reasons for the proposed cancellation. Attachment B to the notice set out how the respondent decides if the applicant should maintain her WWCC clearance by reference to sections 23(1), 15(4) and 15(4A) of the WWC Act.

7. On 1 February 2024, having completed the risk assessment, the respondent notified the applicant of her final decision to cancel her clearance under section 23(1) of the WWC Act. Attached to the notice, at Attachment A, was the information considered by the respondent in the risk assessment and the reasons why a decision was made to cancel her WWCC clearance. In that attachment, having considered the matters in section 15(1) of the WWC Act, the respondent concluded that ‘the risk assessment does not indicate that the holder poses a real and appreciable risk to children’. However, the respondent went on to say that she was not satisfied that the reasonable person test in section 15(4A)(a) had been met.

8. The applicant lodged her application for review on 12 February 2024.

9. The applicant’s name has been anonymised to GFL in accordance with a non-publication order, made by the Tribunal on 29 February 2024 pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). That order prohibits the disclosure by way of publication of the name of the applicant and any other person mentioned in the proceedings or referred to in the documentary material lodged in these proceedings other than the name of an expert witness or the officer of a government agency. In accordance with this order, we have used pseudonyms, Mr A and Mr B, for the partners of the applicant and not named the applicants family members.

Jurisdiction of the Tribunal

10. Section 27(2) of the WWC Act provides that an application made under that section is an administrative review, made under the Administrative Decisions Review Act 1997 (NSW) (ADR Act), of the respondent’s decision to cancel the person’s WWCC.

11. The role of the Tribunal under the ADR Act is to decide, as at the time of hearing, the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable law: ADR Act section 63(1). In undertaking this task, the Tribunal sits in the shoes of the respondent and decides the matter a fresh.

12. Generally, on administrative review, neither party bears a burden of proof in establishing that the decision was, or was not, ‘the correct and preferable’ decision: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39] – [40]. However, a practical or ‘forensic’ burden may arise where a party asserts a material fact without any supporting evidence: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.

13. Section 63(3) of the ADR Act provides that in determining an application for administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)  to affirm the administratively reviewable decision, or

(b)  to vary the administratively reviewable decision, or

(c)  to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)  to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Matters in issue

14. The main issue in this application is whether the Tribunal can be satisfied that the applicant ‘poses a risk to the safety of children’. If so satisfied, the decision of the respondent, made under section 23(1) of the WWC Act, is the correct and preferable decision and should be affirmed: ADR Act section 63(1).

15. If not so satisfied, then the correct and preferable decision is that the applicant be granted a WWC clearance under section 18(2) of the WWC Act. To give effect to a decision of this kind, the Tribunal would need to make an order under section 63(3)(c) of the ADR Act setting aside the decision of the respondent to cancel the applicant’s WWCC clearance and, in substitution thereof make a decision that the applicant be granted a WWCC clearance under section 18(2) of the WWC Act.

16. The phrase ‘risk to the safety to children’ is defined in section 5B of the WWC Act to be a reference a ‘real and appreciable risk to the safety of children’.

17. In determining whether the applicant ‘poses a risk to the safety of children’, the Tribunal is required to consider the matters in section 30(1) and 30(1A) of the WWC Act. These are matters like those the respondent may consider, under section 15 of the WWC Act when conducting a risk assessment to determine whether a person ‘poses a risk to the safety of children’: WWC Act sections 15(4) and 15(4A).

18. Sections 15(4A) and 30(1A) contain a reasonable person test and a public interest test. Section 15(4A) provides that the respondent may determine that an applicant does not ‘pose a risk to the safety of children’, only if the reasonable person test and the public interest test in that section is satisfied.

19. Section 30(1A) provides that the Tribunal may not make an order that has the effect of enabling a person to work with children unless satisfied that the reasonable person test and the public interest test in that section is satisfied.

20. In her written submissions, the respondent submits that the approach to be taken to the application of sections 30(1) and 30(1A) is similar to that which was applied by her in cancelling the applicant’s WWCC clearance. For the reasons set out below, we do not agree that this approach is consistent with the proper application of these sections, in particular section 30(1A). At the same time, on the material before the Tribunal our conclusions would be the same, had we approached the application as submitted by the respondent.

21. In summary, the applicant asserts that her violent behaviour has arisen during ‘multiple domestic violence relationships’ that were ‘fuelled by alcohol misuse and mental, physical and psychological abuse’. That behaviour has never involved or been directed towards a child. She says that she has done everything she can do to rectify the bad decisions she has made in the past by attending appointments with her treating psychologist and completing a six-month smart recovery programme. She says that she has changed her behaviour and has made this application because she loves her work as a nurse and desperately wants to be able to return to that work where there has never been any issue about her behaviour or conduct.

22. The respondent acknowledges that this application is in many respects finely balanced, and it is open to the Tribunal to consider the possibility that the applicant engaged in the behaviour, both alcohol and family violence, in the context of being in family violence situations. This, the respondent acknowledges would place the applicant in a different category to other forms of criminal conduct. However, the respondent contends that there is limited evidence of the applicant being the victim of family violence. Instead, it is submitted that the evidence points to the applicant having formed volatile and destructive relationships that involved violence and if this is so, the applicant’s conduct, and the minimisation of that conduct, gives little basis to be confident that the behaviour will cease and thereby raises a concern that it may escalate and emerge in other settings that do include children. In these circumstances, the respondent submits that the applicant ‘poses a risk to the safety of children’, and the reasonable person test has not been met.

23. On the material before the Tribunal, having considered the matters in section 30(1) and applied the reasonable person test and the public interest test in section 30(1A) of the WWC Act, we are not satisfied that the applicant poses a risk to the safety of children. Based on this finding we make an order, pursuant to section 63(3)(c) of the ADR Act and set aside the cancellation decision of the respondent and direct that the respondent grant the applicant a WWCC clearance under section 18(2) of the WWC Act.

Background

24. The applicant is 34 years of age. She completed a degree in nursing in 2015 and commenced working as a nurse around that time. She has worked as a registered nurse in an adult surgical ward of a Public Hospital. Nevertheless, it is accepted that as an employee of a Public Hospital since gaining her registration as a nurse, it was a condition of the applicant’s employment that she be the holder of a WWCC clearance: WWC Act section 7.

25. There is no evidence that the applicant has engaged in any violent, threatening or inappropriate behaviour while at work. On the contrary, the applicant has provided several positive references from work colleagues.

26. However, since June 2019, the applicant has been subject to several apprehended domestic violence orders (ADVO) arising from episodes of alcohol-related violence involving her romantic partner(s) and on one occasion her mother and sister. These episodes of domestic violence gave rise to criminal charges being laid against the applicant in September 2019, October 2019, April 2020, September 2021 and July 2022.

27. Arising from these episodes of alcohol-related violence the applicant was charged with offences of common assault (Crimes Act 1900 (NSW) (Crimes Act) section 61), assault occasioning actual harm (Crimes Act section 59(1)), destroy or damage property (Crimes Act section 195(a)). She was also charged with numerous offences of contravening a prohibition/restriction of an ADVO to which she was subject because she was intoxicated in the company of her partner at the time of the alleged offending of an ADVO (Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Crimes Domestic Violence Act) section 14(1)).

28. Arising from these episodes, the applicant was also found to have breached her bail conditions on several times.

29. In July 2020, on a plea of guilty, the applicant was convicted of the charges arising from the September and October 2019 episodes. The charges arising from the 2020, 2021 and 2022 episodes were dealt with under the Mental Health (Forensic Provisions) Act 1990 (NSW) (as it applied at the time) and the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) (Mental Health CIFP Act).

30. A detailed chronology of the applicant’s offending and alleged offending is set out below.

31. As required under the Health Practitioner Regulation National Law (NSW), the applicant self-reported the charges laid against her to the Nursing & Midwifery Council of NSW (N&M Council). After the applicant had informed the N&M Council of her more recent September 2021 offending, the N&M Council conducted a hearing concerning the applicant’s offending. On 5 December 2021, the N&M Council notified the applicant that it was satisfied that it was appropriate for conditions to be imposed on the applicant’s registration as a nurse and an order was made requiring the applicant to attend for hair testing as directed by the Council.

32. After the applicant was charged with further domestic related offences in July 2022, on 14 September 2022, the N&M Council decided to place a further condition on her nursing registration. The conditions included a requirement that the applicant be placed under indirect supervision in accordance with the N&M Council’s regulatory supervisory policy. That policy required the applicant to: (a) nominate a supervisor for approval by the Council, and (b) authorise the approved supervisor to provide written reports to the N&M Council at monthly intervals or as specified by the Council. We understand that the applicant responded to these conditions and continued to work under indirect supervision.

33. Almost two months later, on 11 November 2022, the respondent imposed an interim bar on the applicant’s WWCC clearance.

34. On 7 July 2023, the N&M Council removed the hair testing and supervision conditions on the applicant’s nursing registration as the supervision reports did not indicate issues in the workplace and the hair testing did not indicate chronic excessive alcohol use. However, the applicant remained subject to private conditions of attending for treatment by a general practitioner and psychologist of her choice and to attend treatments as frequently as directed by her general practitioner and psychologist. In its noted discussions, the N&M Council Panel said that the applicant:

… [demonstrates] insight and offers good reflection on previous events, their impact on her health and therefore her practice. We discussed if the court conditions were breached, [the applicant] would be before the courts and this would be dealt with according to the court-imposed conditions, this itself being protective of the public. [The applicant] is presently meeting the court requirements and seems to be doing what would expected to improve her outcomes.

Material before the Tribunal

35. In support of her application the applicant relied on the following material:

1. the material she provided to the respondent in response to the respondent’s risk assessment, which included:

1. correspondence from the applicant’s treating psychologist Katie Reeves,

2. affidavits sworn in August 2022 by the applicant’s mother, her father and a work colleague regarding the 2023 hearing of the 2021 and 2022 charges laid against the applicant, and

3. numerous references from work colleagues.

2. the 19 February 2024 references from her parents and sister, and three references from work colleagues.

3. a statement by the applicant dated 16 April 2024, that has attached to it a copy of the abovementioned references of the parents and sister of the applicant and the 8 March 2024 letter to the applicant from the N&M Council;

4. a bundle of documents filed on 29 May 2024, which included the abovementioned statement and references; and

1. a copy of the 22 December 2019 and 13 November 2020 psychological reports of Tim Watson-Munro, Consultant Psychologist; and

2. a copy of the 29 May 2023 psychological report of Michael Costello, Clinical Psychologist.

36. In support of its case, the respondent provided three bundles of documents:

1. the first bundle was provided to the Tribunal and the applicant on 27 February 2024 and contained a copy of the documents the respondent held that she considered to be relevant to the Tribunal’s determination of the applicant’s administrative review application: ADR Act section 58. Included in this bundle were the documents the applicant had provided to the respondent for the purpose of her risk assessment;

2. the second bundle was provided to the Tribunal and the applicant on 24 May 2024 and contained a copy of the applicant’s criminal history and a copy of documents relating to the charges laid against the applicant;

1. the third bundle was provided to the Tribunal and the applicant shortly before the hearing of the applicant’s application on 23 June 2024. This was a small bundle of documents that contained a copy of relevant Police COPS Event Reports relating to the applicant and copies of the sessional notes of Katie Reeves produced under a summons issued by the Tribunal at the request of the respondent.

37. The applicant and the respondent also provided written submissions.

38. At the hearing, the Applicant gave oral evidence and was cross-examined by the solicitor for the respondent.

The WWC Act

39. The object of the WWC Act is to;

1. protect children by not permitting certain persons to engage in child-related work; and

2. by requiring persons engaged in child-related work to have a WWCC clearance: WWC Act s 3.

40. Section 4 of the WWC Act provides that the paramount consideration in the operation of the Act is the safety, welfare and well-being of children and in particular protecting them from child abuse.

41. The word ‘children’ is defined in s 5(1) of the WWC Act to mean persons under the age of 18 years.

42. Section 8 of the WWC Act prohibits a person from engaging in child-related work unless they have a WWCC clearance. Section 9 prohibits a person from employing or continuing to employ a person to work in child-related work, unless that person has a WWCC clearance.

Child-related work

43. The word ‘child-related work’ is broadly defined in sections 6 and 7 of the WWC Act. In this regard section 6(1) provides:

6   Child-related work

(1)  A worker is engaged in child-related work for the purposes of this Act if—

(a)  the worker is engaged in work referred to in subsection (2) that involves direct contact by the worker with a child or children and that contact is a usual part of and more than incidental to the work, or

(b)  the worker is engaged in work in a child-related role referred to in subsection (3).

44. The term ‘direct contact’ with children is defined in section 6(4) to mean physical contact or direct contact. As noted above, section 6(2) contains a list of work that is specific to a child or children (for example child development, child protection and education) and section 6(3) contains a list of child related roles such as an approved provider or manager of an education and care service, an authorised carer and the principal officer of a designated agency.

45. Section 7 makes provision for additional child-related work.

Applications for a WWCC clearance

46. Section 12 of the WWC Act provides that there are two classes of a WWCC clearance as a volunteer and a non-volunteer. A volunteer WWCC clearance authorises a worker to engage in unpaid child-related work and a non-volunteer WWCC clearance authorises a worker to engage in paid and unpaid child-related work.

47. A person seeking an application for a WWCC clearance must make his or her application to the respondent: WWC Act section 13.

How the respondent is to determine an application for a WWCC clearance

48. Consistent with the objects of the WWC Act and the paramount consideration in section 4 of the Act:

1. section 18(1) of the WWC Act provides that the respondent must refuse to grant a WWCC clearance to a person who is a ‘disqualified person’;

2. section 18(2) of the WWC Act provides that the respondent must grant a clearance to a person who is subject to a ‘risk assessment’ under Division unless she is satisfied that the person ‘poses a risk to the safety of children’; and

3. section 18(3) of the WWC Act provides that the respondent must grant a WWCC clearance a person who is neither a ‘disqualified person’ or subject to a ‘risk assessment’.

Disqualified person

49. A ‘disqualified person’ is a person who, at the time of making the application for a WWCC clearance, has been convicted, as an adult, of an offence specified in Schedule 2 of the WWC Act, or proceedings for such an offence is pending against the person: WWC Act s 18(1). In such cases the respondent must not grant the person a WWCC clearance.

50. The applicant is not a ‘disqualified person’ as she has not been convicted of or found guilty of an offence specified in Schedule 2.

Person subject to a risk assessment

51. A person is subject to an ‘assessment requirement’ if any of the matters in Schedule 1 of the WWC Act applies to that person: WWC Act section 14.

52. Where a person is subject to an ‘assessment requirement’ the respondent must conduct a ‘risk assessment’ of that person to determine whether that person ‘poses a risk to the safety of children’: WWC Act section 15(1). This does not however limit the circumstances in which the respondent may conduct a ‘risk assessment’: WWC Act section 15(3).

53. The reference to phrase ‘risk to the safety to children’ is a reference to a ‘real and appreciable risk to the safety of children’: WWC Act s 5B.

54. Section 15(4) provides that in ‘making an assessment’ the respondent may consider the matters prescribed in paragraphs (a) to (k) in that section.

55. Section 15(4A) provides that the respondent may determine that an applicant for or the holder of a WWCC clearance ‘does not pose a risk to the safety of children only if the respondent is satisfied’:

(a)  a reasonable person would allow the person’s child to have direct contact with the applicant or holder—

(i)  while not directly supervised by another person, and

(ii)  while the applicant or holder was engaged in child-related work, and

(b)  the making of the determination is in the public interest.

56. We have dealt with sections 15(4) and (4A) below.

Grant of a WWCC clearance

57. The respondent has no power to grant a WWCC clearance subject to conditions. Hence, if granted, a WWCC clearance is a clearance for any child-related work.

58. Section 22(1) provides that a WWCC clearance ceases to have effect 5 years after the date it was granted, unless it is sooner cancelled or surrendered.

59. Section13A(1) of the WWC Act provides that a person who has had his or her WWCC clearance cancelled or application for a WWCC clearance refused, is not entitled to make a further application for a clearance for five (5) years after the cancellation of refusal was made. Section 13A(2) contains some limited circumstances where an further application is permitted.

Interim bar

60. Section 17 of the WWC Act gives the respondent a discretion to determine imposing an interim bar on a person who has made an application for a WWCC clearance or a person who is holder of a WWCC clearance where the respondent forms an opinion that it is likely that there is a ‘risk to the safety of children’ if the applicant for or the holder of a WWCC clearance were to engage in child-related work.

Cancellation of a WWCC clearance

61. Section 23(1) provides that the respondent must cancel the WWCC clearance of a person if she becomes aware that the person is a ‘disqualified person’, or she is satisfied that the person ‘poses a risk to the safety of children’.

62. The applicant is not a ‘disqualified person’.

Jurisdiction of the Tribunal

63. The provisions of the WWC Act relevant to the jurisdiction of the Tribunal is dealt with below.

WWC Act - Jurisdiction of the Tribunal

64. Section 26 in Part 4 of the WWC Act provides that persons who have been convicted of the offences (committed at a time the person was an adult) prescribed in that section, and for which the person received a full time custodial or non-custodial sentence are not entitled to make an application to the Tribunal.

ADR administrative review – person poses a risk to children

65. Section 27 in this Part makes provision for a person who has been refused a WWCC clearance by the respondent, or whose WWCC clearance has been cancelled by the respondent the right to apply to the Tribunal for administrative review, under the ADR Act, of the respondent’s refusal or cancellation decision.

66. The applicant’s application is brought under section 27 of the WWC Act which relevantly provides as follows:

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

(1)  …

(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)  …

(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)  …

(9) …

(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.

67. While section 27 does not expressly state which refusal and cancellation decisions of the respondent are the subject of review under that section, it clearly applies to those refusal and cancellation decisions where the respondent was satisfied that the applicant for or the holder of a WWCC clearance ‘poses a risk to the safety of children’.

68. As we have noted, there are only two statutory grounds on which the respondent can (mandatory) refuse an application for or cancel a WWCC clearance. These are:

1. the applicant for or holder of a WWCC clearance is a ‘disqualified person’; or

2. the respondent is satisfied that the applicant for or holder of a WWCC clearance ‘poses a risk to the safety of children’; and

69. As noted below, section 28 of the WWC Act expressly makes provision for applications to be made to the Tribunal by a ‘disqualified persons’ whose application for a WWCC clearance has been refused or whose WWCC clearance has been cancelled on the grounds of being a ‘disqualified person’ (WWC Act section 28(3)).

70. Hence, in the absence of any other statutory ground of refusal for or cancellation of a WWCC clearance, section 27 applies to those decisions of refusal or cancelation, made by the respondent because she was satisfied that the applicant for or holder of a WWCC clearance ‘poses a risk to the safety of children’.

Enabling order – disqualified person

71. Section 28 in Part 4 of the WWC Act makes provision for a ‘disqualified person’ to make an application to the Tribunal under that section, for an order declaring that he or she is not to be treated as a ‘disqualified person’ for the purpose of that Act in respect of the offence(s) that are the person’s disqualifying offences.

72. Section 28(7) provides that in proceedings brought under that section, it is to be presumed that the person ‘poses a risk to the safety of children’, unless the applicant proves to the contrary.

How the Tribunal is to determine an application for administrative review and an enabling order

73. Section 30 of the WWC Act sets out the matters the Tribunal is to have regard in determining an application review made under section 27 and an application for an enabling order under section 28. That section is in the following terms:

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.

30(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.

74. Section 30 is in similar terms to the risk assessment provisions in section 15(4) and (4A).

75. As we have noted above, sections 15(4) and (4A) apply where an applicant for or holder of a WWCC clearance is subject to a risk assessment. In such circumstances, under section 15(1), the respondent is required to conduct a risk assessment to determine whether the applicant or holder ‘poses a risk to the safety of children’. If so satisfied, the respondent must refuse to grant to an applicant a WWCC clearance or cancel the WWCC clearance of person.

76. On administrative review, under section 27, the Tribunal is also tasked to undertake a risk assessment in determining the correct and preferable decision. That is, the Tribunal, like the respondent is required to undertake a risk assessment to determine whether, on the material before it, it can be satisfied that the review applicant meets the statutory test to have their WWCC clearance cancelled or their application for a clearance refused.

77. We reiterate, the statutory test is that prescribed in sections 15(1), 18(2) and 23(1), namely the review applicant ‘poses a risk to the safety of children’. As we have already noted, this is the only ground a WWCC clearance can be refused or cancelled.

78. If the Tribunal is satisfied that the statutory test is met, the Tribunal must find that the decision of the respondent to refuse to grant the review applicant a WWCC clearance or cancel the review applicant’s WWCC clearance is the correct and preferable decision and affirm the decision of the respondent.

79. If the Tribunal is not satisfied that the statutory test is not met, the Tribunal must find that the correct and preferable decision is that the review applicant be granted a WWCC clearance or have their WWCC clearance restored.

80. Section 30 prescribes the matters the Tribunal must have regard in conducting a risk assessment.

81. Sections 15(4A) and 30(1A) were inserted into the WWC Act three years after the Act had been enacted and came into operation. Prior to the insertion of these sections the statutory test of whether a person the subject of a risk assessment was determined by considering the matters in sections 15(4) and 30(1). Since the coming into force, sections 15(4A) and 30(1A) have been construed to be further matters the respondent and the Tribunal are to consider after having determined, based on the consideration of the section 15(1) and 30(1) matters, that the person or review applicant does not pose a risk to the safety of children.

82. For the reasons set out below, in our opinion, this is a misapplication of sections 15(4) and (4A) and 30. How the Tribunal is to determine an application for an enabling order

83. In an application for an enabling order under section 28, the Tribunal is also tasked to undertake a risk assessment. The difference being that, by reason of section 28(7) the applicant is presumed to ‘pose a risk to the safety of children’ unless he or she proves to the contrary. This means that the applicant bears the onus to prove that the presumption does not apply by having regard to the matters in section 30.

Application of section 30(1A)

84. Sections 30(1A) and 15(4A) were inserted into the WWC Act, in 2015, by clauses 16 and 31 of Schedule 2 of the Child Protection Legislation Amendment Act 2015 (NSW) (2015 Amendment Act). They were inserted when the Child Protection Legislation Amendment Bill 2015 (NSW) (2015 Amendment Bill) was before the NSW Legislative Council on 16 September 2015. The amendments were subsequently agreed to, and the Bill was passed the following day. In the second reading speech of the Bill (as amended by the NSW Legislative Council) the Hon. Sarah Mitchell (Parliamentary Secretary), on behalf of the Hon. John Ajaka, made the following remarks regarding the insertion of sections 15(4A) and 30(1A) into the WWC Act (NSW Legislative Council Hansard, 16 September 2015, at 3733):

Finally, to better reflect community expectations and to apply community standards to the issues at hand, we propose that both the Children's Guardian and NCAT apply an objective "reasonable person" and a "public interest" test when making their respective determinations. This is similar to the test under the Victorian Working with Children legislation. The test requires that the decision maker is satisfied that a reasonable person would allow his or her own child to have direct contact with the applicant without any supervision. Further, the decision maker must be satisfied that in all the circumstances, it is in the public interest to make the determination. This bill represents the Government's continued commitment to supporting vulnerable children by tightening and strengthening the legislative frameworks and systems that underpin their safety and wellbeing. I seek leave to incorporate the remainder of my second reading speech in Hansard.

85. Not long after these sections were inserted into the WWC Act, in CHB v Children’s Guardian [2016] NSWCATAD 214 (CHB), at [107] the Tribunal considered the application of section 30(1A) and said:

107 Having found that the applicant poses a risk to children, it is not strictly necessary to consider the application of s 30(1A). This only applies in circumstances where the Tribunal is considering making an order enabling the applicant to work with children. It could only make such an order if not satisfied that she poses a risk to the safety of children. As with the Victorian legislative scheme, the matters in s 30(1A) of the Act and its Victorian equivalent only need to be considered once the risk test has been satisfied: see ZZ v Secretary, Department of Justice [2013] VSC 267.

86. This approach has been adopted in other decisions of the Tribunal: see DPH v Children’s Guardian [2019] NSWCATAD 202; ELJ v The Children’s Guardian [2021] NSWCATAD 51; DGZ v Children’s Guardian [2022] NSWCATAD 250, FLE v Children’s Guardian [2023] NSWCATAD 89 and FND v Children’s Guardian [2024] NSWCATAD 125.

87. In ZZ v Secretary Department of Justice [2013] 267 (ZZ) the applicable provisions of the Working with Children Act 2005 (Vic) (Victorian WWC Act) did not include a reasonable person test or a public interest test. However, a public interest test was included in the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) (see clause 102(b) of Schedule 1), which the Victorian and Civil Administrative Tribunal (VCAT) was required to apply on review of a decision of the Secretary of the Department made under the Victorian WWC Act. This test was in addition to those matters the Secretary was required to consider, when making his or her decision the subject of review by VCAT. Hence, in that context the remarks of the Tribunal concerning the application of the Victorian provisions in ZZ was correct.

88. A reasonable person and public interest test were subsequently inserted into the Victorian WWC Act, and their meaning and application have been the subject of decisions of the Victorian Civil and Administrative Tribunal (VCAT) and the Victorian Supreme Court: see OYJ v Secretary of the Department of Justice & Regulation (Review and Regulation) [2019] VCAT 33 (OYJ).

86. However, the application of these tests under the Victorian WWC Act and its replacement, the Worker Screening Act 2020 (Vic), differs to how they are applied in the NSW WWC Act. It is convenient to briefly deal with the Victorian legislation.

Victorian WWC legislation

90. Under the Victorian WWC Act, provision was made for three categories of ‘application’, each of which required consideration against specific criteria for an assessment notice (Victorian equivalent to a WWCC clearance) to be issued (Victorian WWC Act sections 12, 13 and 14). A category A (previously 1) application was an application made in respect of a person who is charged or has been convicted or found guilty of any category A offences: see Victorian WWC Act section 12(1) which lists offence of the kind listed in Schedule 2 of the NSW WWC Act. An application falling within this category had to be refused by the Secretary of the relevant Victorian Department.

91. A category B (previously 2) application was an application made in respect of a person who is charged or has been convicted or found guilty of a Category B offence: Victorian WWC Act section 13(1) which lists offence of the kind in Schedule 1 of the NSW WWC Act. Section 13(2) of the Victorian WWC Act provided that the Secretary of the relevant Victorian Department must refuse to give an assessment notice (clearance) to a category B application unless satisfied that doing so would not ‘pose an unjustifiable risk to the safety of children’ having regard to matters prescribed in that subsection, which are like those in section 15(4) of the NSW WWC Act.

92. Section 13(3) of the of Victorian WWC Act went on to provide:

13(3) In satisfying himself or herself that giving an assessment notice would not pose an unjustifiable risk to the safety of children, the Secretary must be satisfied that -

(a) a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work; and

(b) the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

93. A category C (previously 3) application was an application made in respect of a person who is charged or has been convicted or found guilty of an offence other than a Category A or B offence: Victorian WWC Act section 14(1). Section 14(2) of the Victorian WWC Act provided that the Secretary of the relevant Victorian Department must refuse to give an assessment notice (clearance) to a category C application unless satisfied that doing so would not ‘pose an unjustifiable risk to the safety of children’ having regard to matters prescribed in that subsection, which are the same as those prescribed in section 13(2). Applications in this category of application are not subject to the reasonable person test.

94. Division 5 and 6 of Part 2 of the Victorian WWC Act made provision for the re-assessment of a person’s eligibility to continue to be the holder of an assessment notice and the revocation of that assessment notice, after the Secretary of the relevant Department was notified of any relevant change in circumstance of the holder of the assessment notice. In making a re-assessment, the applicable criteria were that which applied to the relevant category of application to which the notified changed circumstances related (for example the notification of a person having been charged with a category A or category B offence).

95. Division 7 of Part 2 included provisions relating to VCAT’s jurisdiction in determining applications made to it from decisions of the Secretary of the relevant Department to refuse an application for an assessment notice or to revoke an assessment notice. Again, determinations made by VCAT are based on the category of the application to which the decision of the Secretary of the relevant Department relates.

96. For example, on a category A application or re-assessment, section 26A(3) of the Victorian WWC Act provided that VCAT must not make an order for the giving of an assessment notice on an application under that section, unless it is satisfied that the giving of the notice would not ‘pose an unjustifiable risk to the safety of children’, having regard to the matters prescribed in that subsection which mirror the matters in section 13(2) of the Victorian WWC Act and like those set out in section 30(1) of the NSW WWC Act. Subsection 26A(4) of the Victorian WWC Act contains the same reasonable person test as contained in section 13(3) of that Act. And section 26A(5) of the Victorian WWC Act includes a public interest test which is in the following terms:

26A(5) If, in accordance with this section, VCAT is satisfied that giving an assessment notice would not pose an unjustifiable risk to the safety of children, VCAT may by order direct the Secretary to give an assessment notice to the applicant if it is satisfied, that in all the circumstances, it is in the public interest to do so,

97. On review of a decision of the Secretary of the relevant Department relating to a category B application or re-assessment (similar to a section 27 application under the NSW WWC Act), section 26B(1) of the Victorian WWC Act provided:

26B(1) In a review of a decision to give a negative notice on a category B application or in relation to a category B re-assessment, VCAT must determine that it is appropriate to refuse to give an assessment notice unless satisfied that giving the assessment notice would not pose an unjustifiable risk to the safety of children, having regard to any matters to which the Secretary must have regard under section 13(2).

98. Section 26B(2) of the Victorian WWC Act, provides that, in satisfying itself that giving an assessment notice would not ‘pose an unjustifiable risk to the safety of children’, VCAT must be satisfied of the reasonable person test. And section 26B(3) of the Victorian WWC Act provided that, even if VCAT is satisfied under subsections (1) and (2) that the giving an assessment notice would not ‘pose an unjustifiable risk to the safety of children’, VCAT must determine that it is appropriate to refuse to give the assessment notice unless it is satisfied that it is in the public interest to give the assessment notice.

99. Section 26C of the Victorian WWC Act relates to VCAT’s jurisdiction regarding a category C application. That section is in similar in terms to section 26B.

100. The working with children provisions in the Victorian Worker Screening Act 2020, are in similar terms to those that were contained in the Victorian WWC Act.

101. As can be seen from the terms of the Victorian legislative scheme, the statutory test for risk (giving an assessment notice would not ‘pose an unjustifiable risk to children’) in the Victorian legislation differs to that in the NSW WWC Act (applicant for or holder of a WWCC clearance ‘poses a risk (real and appreciable risk) to the safety of children’). While both legislative schemes contain similar matters to be considered in determining whether the statutory test in each scheme is met, the Victorian legislation expressly provides that the reasonable person test is relevant to determining whether the statutory test, would not ‘pose an unjustifiable risk to children’ is met. However, the public interest test in the Victorian legislation is an additional factor VCAT is required to consider, after it has found that the statutory test risk has been met. As noted by Bell J in ZZ at [212] the public interest test is independent of the statutory unjustifiable risk test.

NSW WWC Act – application of section 30(1A) to a section 27 application

102. We reiterate, the statutory test to refuse or cancel a WWCC clearance of a person the subject of a risk assessment is that the respondent is satisfied that the person ‘poses a risk to the safety of children’. The test is not, as expressed in the introductory words of section 15(4A) whether the person does not pose a risk to the safety of children and to that extent, the introductory words in section 15(4A) are inconsistent with the statutory test in sections 15(1), 18(2) and 23(1). It is also inconsistent with the objects of the WWC Act.

103. While the reasonable person test and the public interest tests in sections 15(4A) 30(1A) may appear to be matters independent of those prescribed in sections 15(4) and 30(1). The difficulty with that approach is that, where the respondent determents, under sections 15(4) of not being satisfied that the person ‘poses a risk to the safety of children’, a finding that the person does not meet the reasonable person test or the public interest test, is not a finding or a ground on which the respondent could decide to refuse to grant or cancel a WWCC. The same would apply if the Tribunal were to adopt the same approach to the application of section 30(1A).

104. In our view, the application of sections 15(4A) and 30(1A) should not be considered in isolation, especially as the statutory risk test in sections 15(1), 18(2) and 23(1) were not amended with the insertion of these sections. Instead, they should be considered in the context of the objects of the Act, the application of sections 15(1), 18(2) and 23(1), the purpose of sections 15 and 30 and the intent of Parliament in inserting these provisions into the Act.

105. We reiterate, the objects of the Act include not permitting certain persons to engage in child-related work and to require persons engaged in child-related work to have a WWCC clearance. Consistent with these objects, the respondent must, where a person is subject to a risk assessment under the Act, refuse that person’s application for a WWCC clearance or cancel that person’s WWCC clearance if satisfied that the person ‘poses a risk to the safety of children’: WWC Act sections 18(2) and 23(1).

106. The purpose of section 15 of the WWC Act is to specify who is to conduct a risk assessment, additional circumstances where a risk assessment may be conducted, the purpose of a risk assessment (to determine whether the person the subject of the assessment ‘poses a risk to the safety of children’) and how a risk assessment is to be conducted.

107. As noted above, when inserting section 15(4A) and section 30(1A), the intent of Parliament was to require the Tribunal, and the respondent, when making their respective determinations under the WWC Act, to apply an objective reasonable person test and a public interest test along the lines of the Victorian legislation.

108. As we have noted, the equivalent section 15(4A)(a) and section 30(1A)(a) reasonable person test in the Victorian legislation is a directive to VCAT and the Secretary of the relevant Department, that immediately follows a subsection in similar terms to section 15(4) and 30(1), to apply this test in satisfying themselves, under the subsection immediately before it, whether the person meets the statutory test under that legislation, namely – the person would not ‘pose an unjustifiable risk to the safety of children’.

109. In our view, Parliament’s intent was for sections 15(4A)(a) and 30(1A)(a) to have a similar application, namely having considered the matters in section 15(4) and section 30(1) the respondent and the Tribunal are to apply the reasonable person test in their respective determinations as to whether the person ‘poses a risk to the safety of children’.

110. Parliament’s intent included the insertion of a public interest test, again like that which applied in the Victorian legislation.

111. However, unlike the Victorian legislation, where the public interest test does not apply to decisions made by the Secretary of the relevant Victorian Department, it does apply to the respondent under the WWC Act.

112. The other difference is that, unlike the Victorian legislation, the public interest test in sections 15(4A)(b) and 30(1A)(b) are not expressly independent of the statutory test in sections 15(1), 18(2) and 23(1) of the WWC Act. Nor, in our opinion, for the reasons stated above, can the public interest test be construed as being a factor that is independent of the statutory test in sections 15(1), 18(2) and 23(1). Nevertheless, Parliament intended the public interest test to be included as a factor to be taken into account in determining whether the person ‘poses a risk (real and appreciable) to the safety of children’.

113. In conclusion, in our view, to give effect to Parliament’s intent, in accordance with the objectives of the WWC Act, the statutory test for refusing or cancelling a WWCC clearance and the purpose of sections 15 and 30, the proper approach to sections 15(4) and (4A) and 30(1) and (1A) in determining whether a person ‘poses a risk to the safety of children’ is a step approach as follows:

1. based on the material before the respondent or the Tribunal, make findings, on the balance of probabilities, relevant to each of the matters in section 15(4) of the WWC Act;

2. based on the findings made at step (1) and any other relevant matter, apply the section 15(4A)(a) reasonable person test. In the event the reasonable person test is not met, a finding that the applicant for or holder of a WWCC clearance ‘poses a risk to the safety of children’ should be made; and

3. in the event the reasonable person test is met, apply the public interest test in section 15(4A)(b). In the event the public interest test is not met, a finding that the applicant for or holder of a WWCC clearance ‘poses a risk to the safety of children’ should be made.

114. Having found, at step (2) or (3) above, that the applicant for or holder of a WWCC clearance ‘poses a risk to the safety of children’ the respondent must refuse to grant and cancel a WWCC clearance. However, if having considered the reasonable person test and the public interest test, the respondent is not satisfied that the applicant for or holder of a WWCC clearance ‘poses a risk to the safety of children’ the respondent must grant the applicant or holder with a WWCC clearance.

115. In our view a similar approach should be taken by the Tribunal in the application of section 30(1) and 30(1A), the only difference being where the application is an application made under section 28 of the WWC Act, where it is presumed that the applicant ‘poses a risk (real and appreciable) to the safety of children’ unless he or she proves to the contrary.

116. As the applicant is not a ‘disqualified person’ we have approached the application of sections 30(1) and (1A) in the manner suggested above. However, as we have already noted, had we approached these sections as being independent of an assessment of risk under section 30(1) we would have reached the same conclusion.

The applicant’s offending and alleged offending

June 2019 charge and conviction for an ADVO breach

117. On 8 June 2019 the applicant was charged with an offence of contravening a prohibition/restriction in an apprehended domestic violence order (ADVO) under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Crimes Domestic Violence Act). On 13 June 2019 the applicant was fined $250 regarding this contravention.

118. The ADVO was imposed on the applicant, on 5 June 2019, after the applicant’s father had telephoned police seeking assistance with an ongoing verbal argument between the applicant and her then partner, Mr A. The argument started during the previous evening. Both the applicant and Mr A had been drinking alcohol for approximately two hours when they commenced arguing. They continued to argue and drink alcohol as they went into the applicant’s bedroom. At about midnight, Mr A said he was leaving. The applicant tried to stop him as she wanted him to stay. The applicant’s father heard the commotion and tried to calm the applicant down and separated them by getting the applicant to move to another bedroom in the home. At about 2.00 am the applicant’s father again heard the applicant and Mr A arguing. He called the local police who attended the home. The police have recorded that when they attended the home, the applicant and Mr A were observed to be highly intoxicated with the applicant stumbling over her words. It is recorded that the applicant smelt of strong intoxicating liquor.

119. Neither the applicant, Mr A or the applicant’s father agreed to provide a statement to police. However, police advised the applicant that she would be receiving an ADVO in which she would be named as the defendant, the applicant became agitated and yelling at police and her parents. Due to the escalation of her behaviour after being told she would be subject to an ADVO, she was detained and taken to the local police station where she was served with an ADVO. We understand from the material before the Tribunal that Mr A was also made subject to an ADVO: see Event Report E 73927388 Narrative 2 of 2.

120. Police also recorded the incident as a Mental Health Act incident as it had been alleged that the applicant had taken several tablets prescribed for severe pain.

121. This was not the first time that police had been called to the applicant’s home due to a domestic verbal argument between the applicant and Mr A. They had also been called on 3 April 2019 and 28 May 2019. On each occasion it was one of her parents who called police for assistance. No action was taken by police on either occasion as neither the applicant or Mr A expressed any fears for their safety or sought further action by police.

122. On 6 June 2019, the applicant and Mr A were staying in a hotel to celebrate a birthday. During dinner that evening, they began to argue and continued to argue when they went to their room. Hotel staff moved the applicant into another room. Police attended the hotel at about 11 pm that night after having received a telephone call from the applicant’s mother. The applicant had called her mother to tell her about her argument with Mr A and that she had injured her finger after Mr A had pushed her over the lounge onto the floor. She told her mother that she thought her finger was broken. Police have recorded that the applicant’s finger looked broken and that there were red marks to the left side of the applicant’s neck. Police also gained access to the room where Mr A was asleep, he was woken and arrested and taken to the local police station where he was charged with assault (domestic violence). Neither the applicant nor Mr A would provide a statement to police.

123. On 8 June 2019, police were again called to attend the hotel as the applicant and Mr A were again involved in a verbal argument. When police arrived, the applicant and Mr A were both in the room. They were observed to be intoxicated. The applicant had extremely blood shot eyes, mascara was running down her face and her upper lip was slightly swollen – she looked as though she had been crying. Mr A had several bruises on his body and face. Again, neither the applicant nor Mr A would provide a statement. Police charged the applicant with breaching the 5 June 2o19 ADVO. Whether Mr A was also charged is not clear.

September and October 2019 offending

124. On 27 September 2019 the applicant was charged with an offence of assault occasioning actual harm (Crimes Act section 59(1)) and two offences of contravening a prohibition/restriction in an ADVO (Crimes Domestic Violence Act section 14(1)).

125. The incident giving rise to the above charges occurred at the home of the applicant’s parents during the late evening of 26 September and the early hours of 27 September 2019. The applicant’s father had called police for assistance as the applicant and Mr A were arguing and involved in a physical altercation. When police arrived at the home, they were shown a video the applicant’s mother had taken of the applicant and Mr A arguing and the physical altercation. The Police Fact Sheet records the video as showing the applicant and Mr A arguing and the applicant attacking Mr A. Police noticed that Mr A had scratches to his face, chest, abdomen and right thigh, a bloody nose and a lump under his right eye and forehead. The applicant had drops of blood on her clothing and skin and had a bleeding finger and a broken nail. Mr A advised that he and the applicant had been drinking alcoholic during dinner that night.

124. Police arrested the applicant and conveyed her to the local police station where she was charged with the abovementioned offences. The Police Fact Sheet notes that ‘all parties were uncooperative’ and refused to give any statements regarding the incident. Mr A did not consent to Police taking photographs of his injuries.

125. The ADVO offences related to the 5 June 2019 ADVO order that she was subject to.

126. On 16 October 2019, the applicant was charged with two offences of common assault (Crimes Act section 61) and a charge of commit an act of cruelty upon an animal under section 5(1) of the Prevention of Cruelty to Animals Act 1979 (NSW) (PCA Act). The victim of one offence of common assault was the applicant’s mother and the victim of the other common assault offence was the applicant’s sister.

127. The Police Fact Sheet concerning these charges state that they arose from an incident that occurred during the evening of 16 October 2019, at the home of the applicant and her parents, after the applicant had returned home from work at about 8.30 pm. The Fact Sheet notes that when the applicant arrived home, she had already consumed several alcoholic drinks. She continued to drink alcohol and began arguing with her mother and sister who were trying to calm her down. The applicant’s yelling woke the one-year-old child of her sister who was asleep in one of the bedrooms of the home. The applicant could not be calmed down and was alleged to have pushed her mother and her sister. The applicant’s father and mother called the local police station. The applicant was taken to the local police station and charged with the abovementioned offences. The information on the Fact Sheet concerning the cruelty to animal charge has been deleted. That charge was later withdrawn, and it is the evidence of the applicant’s sister is that no harm was caused to her dog.

128. On this day, police sought and obtained an interim ADVO against the applicant for the protection of her mother and sister. A condition of the ADVO was that the applicant was not to approach or be in the company of her mother or her sister for at least 12 hours after drinking or taking illegal drugs. We understand that this is one of the standard orders made in an ADVO. At the same time there is no evidence of the applicant having taken illegal drugs on this occasion or at any other time.

April 2020 alleged offending

131. On 25 April 2020, the applicant was charged with the following offences:

1. an offence of destroy or damage property (a sliding door) (Crimes Act section 195); and

2. offence of contravening a prohibition/restriction in an ADVO (Crimes Domestic Violence Act section 14(1)). The ADVO the subject of this charge was the ADVO that was made following the 16 October 2019 incident.

132. The Fact Sheet concerning these charges state that they arose during an incident, at the home of the applicant’s parents and the applicant, on 24 and 25 April 2020, where the applicant had been abusive and aggressive towards her mother on the evening of 24 April. On the morning of 25 April 2020, the applicant continued to be abusive and aggressive and while outside she ‘threw’ a plastic chair at the glass door to the dining area of the home. She did this four times, which caused the door to crack and smash.

133. Police attended the home in response to the telephone call of the applicant’s mother. When they arrived at the home police spoke to the applicant and noted in the Police Fact Sheet that they ‘could smell a strong odour of alcohol coming from the applicant’ and asked whether she had been drinking. The applicant responded, ‘I have had three glasses of wine’.

134. The applicant was conveyed to the local police station where she was charged with the above offences. The Fact Sheet notes that the applicant refused to participate in a record of interview. The applicant’s mother and father also refused to provide a police statement.

July 2020 Conviction for the 2019 offending

135. On 24 July 2020, the applicant pleaded guilty to the abovementioned 2019 charges of common assault, assault occasioning actual harm and contravening a prohibition/restriction in an ADVO (2). As noted above, the offence of commit an act of cruelty to an animal was withdrawn by police.

136. On 24 July 2020, the NSW Local Court convicted the applicant of each charge and made a two-year community correction order, under section 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Crimes Sentencing Act), that the applicant:

… [abstain] from both alcohol and illicit drugs for 6 months. To continue to engage in psychological treatment with Ms Katie Reeves or similarly qualified health professional, for as long as her health provider considers appropriate. To continue to take medication as prescribed by her GP...

137. A pre-sentence report prepared for the Local Court for the purpose of sentencing the applicant noted that the applicant:

1. acknowledged the offences, however minimised her actions stating they were out of character;

2. apportioned blame to the victim and claimed that her actions were in response to being verbally and physically assaulted by the victim in the lead up to the offending;

3. claimed to have an unclear recollection of the offending due to her level of intoxication at the time; and

4. identified alcohol use as a factor in her offending behaviour.

November 2020 dismissal of the April 2020 charges under the Mental Health (forensic Provisions) Act 1990

138. On 17 November 2020, the NSW Local Court made a diversion order, under section 32(3)(a) of the then Mental Health (Forensic Provisions) Act 1990 (NSW) (Mental Health (FP) Act), by dismissing the applicant’s April 2020 and discharging her into the care of Ms Katie Reeves (Ms Reeves) and her general practitioner on the condition that she abstains from consuming alcohol and maintains treatment and counselling for mental health, including attending appointments as directed.

139. We note that where a diversion order is made section 32(3) of the Mental Health (FP) Act, and there is a failure by the person the subject of the order to comply with the conditions of that order within six months, the Magistrate may deal with the charges as if they had not been discharged: Mental Health (FP) Act section 32(3D),

140. Section 32(4) of that Act also that a decision made under that section to dismiss charges against a person does not constitute a finding that the charges against the person are proven.

September 2021 alleged offending

141. On 9 September 2021, the applicant was charged with an offence of common assault, assault occasioning actual harm, and destroy or damage property.

142. The Police Fact Sheet concerning this incident notes that the circumstances giving rise these charges occurred during the early morning of 9 September 2021 at the home of the applicant’s new partner, Mr B. The applicant and Mr B had visited the home of the applicant during the afternoon of the previous day when the applicant’s mother asked them to leave. At Mr B’s home the applicant and Mr B consumed an amount of intoxicating liquor. At 1.00 am the applicant was angered by something Mr B had said and became verbally and physically abusive towards him. At the request of Mr B, his housemate made a triple zero call to police who attended Mr B’s home some time thereafter. At that time police attended Mr B’s home, the applicant had already left and as she was leaving, she ran an object along the length of Mr B’s car causing long scratches to the duco of the car. Police noted that Mr B had a 4 cm bruise to the upper left side of his back, a scratch to the left side of his neck that ran from the rear of the neck to the front of the neck and a scratch running from his stomach to his left thigh.

143. The Fact Sheet states that police did not obtain a statement from Mr B when they attended Mr B’s home following the tripe zero call. Instead, they obtained a statement from Mr B later that morning by way of ‘DVEC’ (Domestic Violence Evidence in Chief). Police also obtained a handwritten statement from Mr B’s flat mate. A copy of these statements is not before the Tribunal.

144. The Fact Sheet notes that the applicant attended the local police station the following day. She was arrested and charged with the abovementioned offences. The applicant was also made subject to an ADVO in which Mr B was named as the person for whom protection was sought under that ADVO. A condition of the ADVO was that the applicant was not to approach or be in the company of Mr B within 12 hours of drinking alcohol.

145. In an affidavit sworn by the applicant’s father, on 22 February 2022, he refers to video calls the applicant had made to him around 1.19 am on 9 September 2021 requesting that he come and collect her. He states that the applicant was visibly upset and shaking while holding the phone. He said he could hear the applicant and Mr B arguing and Mr B appearing to act aggressively towards the applicant. He eventually collected the applicant who was waiting for him at the side of the road.

October 2021 – Alleged breach of ADVO

146. On 2 October 2021, the applicant was charged with an offence of contravening a prohibition/restriction of the September 2021 ADVO. This charge arose during a visit by police to the home of Mr B that morning. The applicant, who was there at the time, told police that she and Mr B had argued. Mr B told Police that he and the applicant had consumed alcohol, and the police noted that the applicant appeared to be intoxicated.

July 2022 alleged offending

147. On 11 July 2022, the applicant was charged with an offence of assault occasioning actual harm, destroy or damage property, and contravening a prohibition/restriction in an ADVO.

148. The Police Fact Sheet records that, at about 12.39 am on 10 July 2022, Mr B made a tripple zero call to police requesting their assistance. Shortly thereafter police telephoned Mr B to enquire as to the nature of the emergency to which his call related. Mr B told police that “You need to get her out of here”. When asked who he was referring to, Mr B named the applicant. Police arrived shortly thereafter. The Fact Sheet notes that there were visible red marks and minor scratches on Mr B’s face and that there was a large amount of broken glass on the kitchen floor. Mr B explained that the broken glass was a glass candle holder. He refused to name the person who was responsible for this.

149. On the morning of the following day (11 July) Police attended the home of the applicant, arrested her and conveyed her to the local police station where she was charged with the abovementioned offences and taken into custody.

150. We note that because of these charges having been laid the applicant was also in breach of her bail conditions. Consequently, she was remanded in custody subject to an order for bail being made by the NSW Local Court. This did not occur for one month.

151. We note that on 12 August 2022, the applicant’s mother swore an affidavit in support of the applicant being granted bail. In that affidavit the applicant’s mother said that on the morning of Monday 11 July 2022, she noticed that the applicant had bruising to both the right- and left-hand side of her neck, which appeared to be finger marks. The applicant’s mother also said that she saw scratches on the applicant’s neck.

152. In an undated letter, the applicant asserts that it was she who had been assaulted by Mr B during the evening of 11 July 2022. From the content of the letter, it appears to have been written some time before 25 August 2022, as she refers to this being the next Court date which was going to be attended by her lawyer. In the letter, the applicant said that she did not want to go to Mr B’s home on the day in question because she knew her bail conditions prevented her doing so. She said that Mr B had assured her it was fine. When they got to Mr B’s home and while they were making dinner and having a few drinks, they began to argue, which turned into an altercation that became physical. She said she went up-stairs in Mr B’s home. He followed her and shoved her – she fell to the floor of the bathroom hitting her head. She said Mr B was on top of her, and she pushed him away, but he had a hold of her hair. She eventually pushed him off, left and went home where she told her parents what had happened.

June 2023 – dismissal of the September and October 2021 and July 2022 charges under the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW)

153. On 9 June 2023, pursuant to s 14(1)(a) of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) (Mental Health CIFP Act), the NSW Local Court made another diversion order dismissing the charges that had been laid against the applicant in September 2021 and July 2022.

154. In making the order, the Local Court Magistrate found, under sections 12(1) and 14(1) of the Mental Health CIFP Act, that it appeared to him or her that the applicant has a mental health impairment or a cognitive impairment, or both but is not a mentally ill person or a mentally disordered person AND on the alleged facts in the proceedings or other evidence considered relevant, it would be more appropriate to deal with the applicant in accordance with the provisions of Part 2 Division 3 of that Act.

155. In dismissing the charges, the Local Court went on to discharge the applicant into the care of Michael Costello on the condition that the applicant attend scheduled appointments with Katie Reeves and her general practitioner, and take all medication prescribed and provide reports to Michael Costello as directed, regarding her counselling sessions.

156. Section 14(2) of the Mental Health CIFP Act also provides that an order to dismiss a charge under that section does not constitute a finding that the charge against the person is proven or otherwise. The period within which the Magistrate may deal with the charge if the person fails to comply with the conditions of the order made under section 14(1), is extended to 12 months under section 16(4) of the Mental Health CIFP Act.

December 2023 – Breach of ADVO

157. On 10 December 2023, the applicant was charged with an offence of contravening a prohibition/restriction in the 9 June 2023 ADVO that she was subject to. The protected person in this AVO was Mr B.

158. The police Event Report 79757315 states that at 2.00 am of the morning of 9 December 2023, police received a triple zero call from Mr A’s phone. The voice of a male was heard in the background, but full details could not be obtained. Police attended the home of Mr B to ‘confirm and check the welfare of all persons’. As police arrived, they could see the applicant in the front bedroom. After knocking on the door for 10 minutes, Mr B opened the door and police ‘instantly formed the opinion that he was well affected by alcohol’. The police asked to speak to the applicant, to which Mr B responded by saying that she was not there, but changed his storey and said everything was ok. Police explained that they were seeking to check on the welfare of the applicant and they were let in. The applicant was hiding in a wardrobe in the bedroom. When asked why she was hiding the applicant became argumentative and would not provide any details to police. The applicant and Mr B walked to the back yard where they sighted, on a table, a glass of wine and a bottle of wine. On becoming aware of the presence of Mr B’s flatmate, police were informed that the applicant and Mr B had been drinking alcohol that afternoon and into the evening. When asked, the applicant denied that she had been drinking alcohol. The Event Report states that the applicant smelt of alcohol and she was conveyed to the local police station and charged with the above ADVO offence. We understand that Mr B and his flat mate did not provide a statement to police.

159. At the time of hearing the applicant’s review application, this charge was still pending awaiting a hearing date in August 2024. The applicant proposes to plead not guilty to this charge, as she had not been drinking alcohol – she was drinking non-alcoholic wine. A copy of that bottle of non-alcoholic Rose is included in the respondent’s section 58 bundle of documents. The applicant also denied breaking the glass candle holder.

The applicant’s evidence

160. At the hearing of her administrative review application, the applicant presented as lacking in confidence, which we assume to have been due to being anxious about the outcome of the hearing. She was nevertheless co-operative and, in our view, open to the best of her recollection. She did not seek to evade questions asked of her in cross-examination and some of her responses were contrary to her interests.

161. The applicant explained that she has not been drinking. She agreed that she had relapsed in the past, but through ongoing counselling she has not been drinking as she did before. She explained that her past excessive drinking was not due to feeling stressed, but because she believed she could handle it. She now only drinks occasionally.

162. She explained that following her ten-year controlling and physically abusive relationship with her partner prior to Mr A, she had decided to retaliate when being abused and regrets that she did not report that abuse.

163. She explained that she was no longer in a relationship with Mr B. However, she does visit him because she is lonely. She explained that when she is at home, there is a lot of talk about her WWCC clearance which Mr B does not discuss at all.

164. She said she understands that, even though she works in an adult surgical ward, she needs to have a WWCC clearance so that she can return to her nursing career which she loves. She spoke very enthusiastically about her work as a nurse, and we were left with the impression that it is her work as a nurse which provided meaning to her life.

165. She said she has never hurt a child and often looks after her sister’s children and believes that she does not pose a risk to the safety of children.

166. We have otherwise dealt with the applicant’s evidence below.

Consideration

Section 30 (1) considerations

(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.

167. As we have already noted, the applicant is not a disqualified person.

168. The matters that caused the imposition of an interim bar and the cancellation of the applicant’s WWCC clearance are:

1. the charges arising from alcohol fuelled and violent incidents between the applicant and her partner in September 2019, September 2021 and July 2022; and

2. two incidents at the home of the applicant’s parents in October 2019 and April 2020, where the applicant was intoxicated and acted violently.

169. The most serious of these charges are the assault occasioning actual harm (3), common assault (2), and destroy or damage property (3) charges. Arising from these incidents the applicant was also charged with five offences of contravening a prohibition/restriction in an ADVO that she was subject to. These ADVO charges arose because, at the time of these incidents the applicant was intoxicated and acted aggressively towards her partner.

170. In assessing the seriousness of the offences that caused the imposition of an interim bar and the cancelation of the applicant’s WWCC clearance we have not considered the October 2019 charge of commit an act of cruelty to an animal, as this charge was withdrawn by police and the details regarding that charge have been deleted from the Police Fact Sheet. Furthermore, the applicant and the applicant’s sister have also explained that no harm had been caused to the sister’s dog on the day in question: see letter of the sister dated 19 February 2024. This evidence was not disputed by the respondent.

171. The only charges of which the applicant was convicted are the 2019 offences of common assault, assault occasioning actual harm and a breach of a condition of her ADVO. This offending is serious as it involved acts of physical violence, threats of physical violence, aggressive and abusive behaviour.

169. On the material before the Tribunal, we are not persuaded that the offending conduct arising from the October 2019 incident occurred in the presence of the applicant’s one-year-old niece. However, we accept that it may have been conduct that woke the child who was sleeping in another room.

170. While the applicant’s 2019 offending is serious, it is at the lower end of seriousness for such offending. This is reflected in the two-year community correction order imposed on the applicant by the Local Court on her plea of guilty.

171. Even though the April 2020, September 2021 and July 2022 charges were dismissed, this does not diminish the seriousness of the circumstances giving rise to the charges.

172. The applicant has not disputed the following:

1. in April 2020, while intoxicated she destroyed the glass door at her parent’s home and acted aggressively towards her mother;

2. in September 2021, she and Mr B, while intoxicated became embroiled in an argument that became violent where Mr B sustained some injuries and she scratched his car.

176. Regarding the September 2021 incident, the applicant asserts that Mr B had also assaulted her during this incident. The applicant’s father and mother provide support for that assertion in their respective affidavits.

177. This does not excuse the applicant’s violent and aggressive behaviour. At the same time, the Police Event Reports indicate that the incident’s giving rise to the applicant’s charges involving Mr A and Mr B, also gave rise to Mr A and Mr B being charged and made subject to an ADVO. Again, this does not excuse the applicant’s behaviour but supports the applicant’s contention of domestic abuse by her former partners.

178. Regarding the applicant’s alleged July 2022 offending, in the absence of Mr B or his flat mate having provided a statement to police, we do not accept the respondent’s contention that the applicant’s account of events regarding the July 2022 incident, as made in her letter of August 2022, should be rejected. Nevertheless, she does acknowledge that while she was at Mr B’s home she was drinking alcohol, which arguably contravened the ADVO she was subject to and any other orders she may have been subject to.

179. The applicant’s ongoing alcohol fuelled violent and aggressive conduct, while in the company of her equally intoxicated intimate partner, resulted in further ADVO charges and a breach of her bail conditions.

180. In conclusion, we find that the offences and alleged offences that caused the imposition of an interim bar and the cancellation of the applicant’s WWCC clearance are serious, but at the lower end of seriousness of such offending and alleged offending. They do however, evidence a pattern of domestic violent, aggressive and abusive behaviour by the applicant, while in the company of her intimate partner, when she and her partner were both intoxicated.

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

181. The most recent incident of alleged violent offending occurred in July 2022. While the applicant denies the charges of assault occasioning actual harm, she does not dispute that she had been drinking alcohol while in the company of Mr B.

182. The most recent charge for beaching a prohibition/restriction of an ADVO is in December 2023. At the time of hearing this charge was pending. The circumstances giving rise to this charge involved an allegation that the applicant was drinking alcohol while in the company of Mr B. It did not involve an allegation of violence.

183. The applicant said she was defending the charge as she had not been drinking alcohol. Instead, she had been drinking non-alcoholic wine. A copy of the label of a bottle of non-alcoholic wine that she asserts she was drinking was included in the material relied on by the respondent.

184. We accept that the applicant was not drinking alcohol. However, it is not disputed that Mr B was drinking alcohol, which should have been of concern to the applicant.

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

185. In 2019 the applicant was 29 years of age and in 2022 she was 32 years of age.

(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.

186. The victims of the applicant’s offending were her mother, sister and intimate partners. They were all older than the applicant and the difference in age between the applicant and each victim is not material to the issue as to whether the applicant poses a risk to children. In this regard the respondent also acknowledged that there is no evidence of the applicant having held a position of power or authority over the victims.

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

187. As the victims of the applicant’s offending were not children, this is not a consideration that is material to this application. However, we do note that at the time of her October 2019 offending the applicant was aware that her niece, the daughter of her sister, was in the home asleep. There is no evidence of a child being present during the September 2019 offending or the alleged subsequent offending in 2020, 2021 and 2022.

(g) The person's present age.

188. The applicant is 34 years of age.

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

189. In 2016, the applicant was found guilty, but not convicted, of an offence of larceny and placed on a 12-month good behaviour bond.

190. The applicant’s offending is otherwise that to which this application relates and set out above.

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

191. Relevant to section 30(1)(i) is the evidence of the applicant, the psychological reports of Tim Watson-Munro (Mr Watson-Munro) and Michael Costello (Mr Costello), and the reference from the applicant’s treating psychologist, Katie Reeves (Ms Reeves).

192. In her written material, dated 16 April 2024, the applicant said:

1. she is aware of her criminal record;

2. she has done everything she can to rectify the bad decisions she has made in the past by, continuing regular appointments with her psychologist, completing a six-month smart recovery programme;

3. she has completed multiple treatments for depression, anxiety and a posttraumatic stress disorder as diagnosed by psychologist Tim Watson-Munro (Mr Watson-Munro) and Michael Costello (Mr Costello); and

4. she has changed her behaviour and is now more centred and calmer and focused on maintaining a healthy life and continuing to work as a registered nurse.

193. Mr Watson-Munro assessed the applicant in November 2019. The purpose of the assessment was to consider and report to the Local Court on the applicant’s suitability for the making of a diversion order under section 32(1)(a) of the Mental Health (FP) Act regarding the applicant’s 2019 offending. In his report, in support of a diversion order being made, Mr Watson-Munro said:

1. the applicant presented as a co-operative though psychologically troubled woman;

2. the applicant has suffered a longstanding severe and recurring depressive disorder with features of an anxiety disorder dating back to 2015 when her grandmother was diagnosed with cancer and died shortly thereafter;

3. from that time, the applicant’s symptoms varied and intensified by a dysfunctional and allegedly violent relationship with a long-term partner of 10 years. When that relationship ended, and before she met Mr A, the applicant had been involved with another man who was manipulative and controlling;

4. the applicant alleged that Mr A was violent towards her, both physically and psychologically. Additionally, she and Mr A, developed a co-dependency in terms of alcohol consumption and would drink solidly between Friday evenings and Sunday’s. At the time of the applicant’s 2019 offending, they were both ‘highly intoxicated’;

5. while the applicant remained significantly depressed and anxious, she had ‘ceased drinking’ and was actively engaged in treatment, taking medication and seeing a psychologist;

6. there was a ’direct nexus’ between the applicant’s mental illness at the time of her offending; and

7. the applicant would benefit from continuing psychological attention focused upon the further development of relapse prevention strategies, social skills training for her diminished self-esteem, systematic desensitisation for her anxiety and supportive and motivational psychotherapy. Becoming involved with Alcoholics Anonymous was encouraged. Attached to the report of Mr Watson-Munro was a treatment plan.

194. On 13 November 2020, Mr Watson-Munro provided a supplementary report, for consideration by the Local Court, as to the applicant’s suitability of the applicant for a diversion order, under the Mental Health (FP) Act, regarding her April 2020 offending. In that report Mr Watson-Munro noted that the applicant had informed him that:

1. following the July 2020 Court hearing she was progressing well, until there was a recurrence of her symptoms and associated drinking that led to the April 2020 offending at her parent’s home;

2. she had ceased drinking since then and was focussed on her physical health;

3. she continued in treatment with Ms Reeves, although COVID 19 restrictions had meant that these were done through telephone and tele health facilities; and

4. she acknowledged that she was additionally pressured by the impact of COVID in the context of being confined in her parent’s home and reported that she comfort ate and gained considerable weight which she had subsequently lost.

195. In his supplementary report, Mr Watson-Munro said that notwithstanding her progress, the applicant remained psychologically vulnerable. She had matured again in the context of having treatment, maintaining her medication and remaining alcohol free. He said that he believed that the applicant was suitable for consideration of a diversion order and in support of that belief said:

5. It is notable that notwithstanding her difficulties, in terms of her professional life, [the applicant] is highly regarded. She works in a very stressful profession, where there evidently has never been complaints concerning her performance, nor indeed her interaction with patients. This clearly demonstrates the fact that in a state of sobriety, she is pro social, highly efficient and professional in terms of her interactions with others. She also has a great capacity to effectively negotiate her life. It is apparent that she now has clearer insight to the devastating impact which alcohol has upon her mood, judgement and impulse control. It is apparent that alcohol exacerbates her depression and anxiety and she acknowledges that it is a highly ineffective and destructive means of self-medication.

196. The 29 May 2023 psychological report of Mr Costello was prepared for consideration by the Local Court dealing with the applicant’s 2021 and 2022 alleged offending. At the end of his report Mr Costello said that he believed that the applicant was on track to achieve her goal of better managing her mental health issues and that she represents little threat to the community for the following reasons:

• She shows no signs of antisocial personality disorder. She has a forensic history limited to lashing out against people who have domestically abused her.

• She has a solid work history in a high-pressured environment.

• At the time of the current offences, her decision-making ability was substantially impaired by severe depression and PTSD.

• She is now receiving the care she needs.

• She is genuinely motivated to continue with counselling and learn strategies that will ensure she never repeats the same mistakes.

• She genuinely loves nursing and is aware any future offences could end her career.

In my opinion, if the applicant continues her current path she is on track to achieve her goals of managing her mental health issues and moving forward with her life with a much more adaptive decision making process.

197. In a letter dated 1 August 2023, Ms Reeves explained that the applicant had self-referred to the health centre on 4 May 2019 and had attended nine sessions thereafter until December 2019. The applicant re-presented:

1. on 8 May 2020 and attended seven (7) sessions thereafter until December 2020;

2. on 1 November 2021 and attended four (4) sessions thereafter until December 2021;

3. on 5 September 2022 and attended twelve (12) sessions thereafter up to 1 August 2023.

198. The entirety of the applicant’s session notes, produced by Ms Reeves, pursuant to a summons issued by the Tribunal at the request of the respondent, notes that after 1 August 2023, the applicant attended a further three sessions up until mid-December 2023.

199. In her oral evidence, the applicant agreed that she did not have any further sessions with Ms Reeves since December 2024. However, she had booked a further session with Ms Reeves for the week following the hearing of her application. That booking having been made a week before the hearing. However, she has continued to receive treatment from her general practitioner for her PTSD, depression and anxiety.

200. In conclusion we find that:

1. the reports of Mr Watson-Munro and Mr Costello indicate that with ongoing psychological counselling and other treatment to address her depression, anxiety and PTSD, the likelihood of the applicant re-offending as she did in 2019 and alleged to have done in 2020, 2021 and 2022 is low;

2. the applicant’s engagement with counselling has in a sense been ongoing as she did seek counselling following the incidents giving rise to the charges laid against her. Nor is there any evidence that the applicant failed to attend counselling as ordered by the Court or directed by her treating psychologist Ms Reeves;

3. the applicant accepts she needs ongoing counselling; and

4. it goes without saying that violent conduct of the kind for which the applicant has been charged, if perpetrated on or in the presence of a child would have a serious impact on that child. However, there is no evidence of an escalation of the applicant’s violent and alleged violent conduct to situations other than those where she is with her intimate partner and where they both drink excessively.

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

201. At the time of hearing, the applicant was subject to bail conditions regarding the December 2023 charge. Her most recent ADVO was about to or had expired.

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

202. The applicant has provided statements from former employers and work colleagues that attest to her good character and work as a nurse, most of which appear to have been prepared for submission to the Court regarding the applicant’s offending and alleged offending. The most recent reference is that of a work colleague of the applicant, Ms NA, dated 3 January 2024, in which she states that she has known the applicant since 2015 on a professional and personal level. She states that she is aware of the applicant’s offending and her struggles with domestic violence in past relationships. This, however, has at no time affected her professionalism while at work which she undertakes with great integrity, above standard professionalism and genuine compassion.

203. The applicant has also provided letters of support from her parents and her sister.

204. As noted above, in support if her application, the applicant provided copies of correspondence she received from the N&M Council and the more recent correspondence she received from her employer. This correspondence is evidence of the N&M Council being satisfied, in July 2023, that it was unnecessary to retain the restrictions placed on the applicant’s nursing registration because of her offending and alleged offending and that the applicant’s employer remained willing to consider employment opportunities.

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

205. There is no additional matter the respondent considers necessary.

Section 30(1A)(a) reasonable person test

206. In PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 at [57], his Honour Bell J made the following remarks regarding the equivalent public interest test in the Victorian WWC Act:

57 …, [I have strong reservations] with the proposition that the reasonable person test can be equated with a ‘”pub test” for what might be considered reasonable in the circumstances’, as submitted for the Secretary and accepted by the deputy president. Having regard to the nature and gravity of the issues involved, I think that, at best, it is a distraction to apply the reasonable person test by reference to what people in a pub might consider to be reasonable in the circumstances. As was correctly stated earlier in the reasons of the deputy president, the ‘reasonable person test is an objective test ...[that] relies upon a “reasonable” person having knowledge of all of the facts and surrounding circumstances’, and it is safer simply to apply the test upon this basis

207. In VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 at [36] Macnamara J made the following observation as to the application of the equivalent reasonable person test in the Victorian WWC Act:

36 … [The reasonable person] would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before (the Tribunal), giving an applicant for a positive assessment a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some overoptimistic attempt to facilitate rehabilitation. 

208. In DGH v Children’s Guardian [2018] NSWCATAD 130, at [137], we noted:

137 It is accepted that the “reasonable person” in s 30(1A)(a) of the WWC Act would not approach the matter with a closed mind and would apply an objective test to the material that is before the Tribunal together with the submissions that have been made: see CZZ v Children’s Guardian [2018] NSWCATAD 56, at [142] to [145]. Additionally, a reasonable person would approach the issues as to risk in the same manner prescribed in s 30(1) of the WWC Act.

209. In our view, the question as to whether a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant is engaged in any child-related work is finally balanced.

210. In this regard a reasonable person would consider the violent offending and alleged violent offending of the applicant to have been very serious. This is particularly so as the offending and alleged offending demonstrates a pattern of aggressive and violent conduct when the applicant is intoxicated, and that conduct occurred relevantly recently. Any repetition of aggressive and violent conduct of this kind while the applicant had direct and unsupervised contact with his or her child while engaged in any child-related work would be of considerable concern to the reasonable person.

211. The reasonable person would also be concerned that the aggressive and violent offending and alleged offending occurred at a time when the applicant was intoxicated, notwithstanding the restrictions imposed on her by orders of the Court and ADVOs.

212. Balanced against this would be:

1. the applicant having acknowledged her offending and the circumstances giving rise to her alleged offending;

2. the offending and alleged offending was domestic in nature, primarily at a time when the applicant was together with her partner where she and her partner were drinking alcohol excessively;

1. there is no evidence of the applicant’s offending and alleged offending having involved a child, being directed towards a child or being engaged in before a child;

2. there is no evidence of the applicant’s offending and alleged offending having escalated to a non-domestic setting or work setting;

3. the December 2019 and November 2020 assessments of Psychologist Mr Watson-Munro that at the time of her 2019 and 2020 offending the applicant was suffering a range of psychological problems and using alcohol as a means of self-medication;

4. the 29 May 2023, assessment of Clinical Psychologist Mr Costello that through ongoing counselling to manage her mental health the applicant represented little threat to the community;

5. the evidence of the applicant having engaged in counselling and treatment for her psychological problems and excessive drinking;

6. the applicant’s stated intention to continue with on-going counselling;

7. the most recent alleged violent offending occurred two years ago, in July 2022, which the applicant denies;

8. there is no further evidence of the applicant having drunk alcohol excessively since the July 2021 incident;

9. the evidence of the applicant’s work colleagues and mangers that the applicant is highly regarded in her work setting which, as a registered nurse involves her caring for adult hospital patients, many of whom would be vulnerable while under care; and

10. the applicant’s registration as a nurse is no longer subject to any restrictions as, in July 2023, the N&M Council were satisfied that they were not required to protect the community. The restrictions were in place for a limited period following the self-reporting by the applicant to the N&M Council.

213. Having regard to these above matters and the paramount consideration in section 4 of the WWC Act, in our opinion, on balance a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant is engaged in any child-related work.

Section 30(1A)(b) public interest test

214. In ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51 at [20]; (2009) 240 CLR 140, French CJ, Gummow and Crennan JJ said;

20 The term "in the public interest" is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question …

215. The subject matter, scope and purpose of WWC Act is to protect children from child abuse by not permitting certain persons from engaging in any child-related work, requiring persons engaged in child-related work to have a WWCC clearance.

216. For the reasons provided above, the Tribunal is satisfied that a reasonable person would allow their child to have direct unsupervised contact with the applicant while engaged in any child related work.

217. The applicant is a registered nurse and keen to return to her career. She has worked as a nurse for about eight years and is highly regard by her managers and work colleagues.

218. The respondent submits that the public interest considerations are finely balanced and while it is in the public interest to have a registered nurse work in the health sector, it is also in the public interest that such persons be of good character as their work involves persons in positions of vulnerability.

219. While the N&M Council have removed the restrictions on the applicant’s registration as a nurse, the public interest in this case relates to the applicant being granted a right to work in any child-related work, be it paid work or voluntary work.

220. Based on our findings above, we are satisfied that it is in the public interest to grant the applicant a WWCC clearance.

Conclusion

221. For the reasons set out above, we are satisfied that the applicant meets the reasonable person test in section 30(1A)(a) and the public interest test in section 30(1A)(b) of the WWC Act.

222. Based on the finding that the applicant meets the reasonable person test and the public interest test, we are not satisfied that the applicant poses a real and appreciable risk to children.

223. Based this finding, we find that the decision of respondent to cancel the applicant’s WWCC clearance is not the correct and preferable decision and should be set aside. As we have already noted, if the respondent’s decision to cancel the applicant’s WWCC clearance is not set aside the five (5) year embargo in section 13A of the WWC Act applies. The applicant’s WWCC clearance is also due to expire on 20 November 2024. Hence it is appropriate to make an order granting the applicant with new WWCC clearance.

Orders

1. The decision of the respondent, made on 1 February 2024, to cancel the applicant’s working with children check clearance, is set aside and in substitution thereof a decision to grant the applicant a clearance under section 18(2) of the Child Protection (Working with Children) Act 2012.

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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: 15 November 2024