CWW v Children's Guardian

The WWC legislative scheme

1. The WWC Act came into force on 15 June 2013. The objects of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: see WWC Act, s 3.
2. Section 4 of the WWC Act provides that the "safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration" in the operation of that Act.
3. The word "children" is defined in s 5(1) to mean persons under the age of 18 years. Consequently, the word "child" has the same meaning.
4. The term "child abuse" is not defined in the WWC Act and should be given its ordinary meaning. In this regard, the Tribunal has referred to s 227 of the Children and Young Persons (Care and Protection) Act (NSW), which creates an offence of "child abuse", which is in the following terms: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units."
5. Subsection 8(1) of the WWC Act prohibits a person from engaging in "child-related work", unless: 1. the person holds the relevant working with children check clearance; or 2. there is a current application, by the person, to the respondent for the relevant working with children check clearance (i.e. a clearance).
6. Subsection 9(1) contains a similar prohibition on an employer from employing, or continuing to employ a person, in child related work where the employer knows, or has reasonable cause to believe, that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.
7. Child-related work is very broadly defined in ss 6 and 7 of the WWC Act. There is no dispute that the applicant requires a clearance in order to continue with his work.
8. A clearance is not granted for specific child-related work. Once it is granted it is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].
9. Section 18 prescribes how the respondent is to determine an application for a clearance. That section relevantly provides: "18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. (3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3".
10. The applicant is not a "disqualified person" for the purpose of this application. However, in July 2014, when he was charged with the sexual assault offence against his partner he was a disqualified person under s 18(1)(b) above while that charge remained pending. When that charge was withdrawn, the applicant was no longer a disqualified person. However, because he had been charged with the July 2014 alleged offending this became a "trigger event" that required the respondent to conduct a risk assessment under ss 14 and 15 of the WWC Act. In conducting that risk assessment, the respondent was satisfied that the applicant posed a risk to the safety of children. Hence, the respondent was required, under s 18(2), to refuse the applicant's application for a clearance.
11. The Tribunal has accepted that the word "risk", in the context of the WWC Act, should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949, at [42]. That meaning was in the following terms: "What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children."
12. As we have noted, a person who has his/her application for a clearance refused under s 18(2) of the WWC Act has a right to seek external review of that decision by the Tribunal under s 27(1) of the WWC Act. Subsection 27(4), provides that in review proceedings an applicant must fully disclose to the Tribunal any matters relevant to his/her application.
13. The matters the Tribunal must consider in determining an application for external review are those set out in s 30 of the WWC Act, which are similar in terms to those matters the respondent is to consider when conducting a risk assessment under s 15.
14. Section 30 relevantly provides as follows: 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 … any matters that caused a refusal of a clearance …, (b) the period of time since those … matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the … matters occurred, (d) the age of each victim of any relevant … conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the … conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order."
15. In CTM v Children's Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered by the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267, where it was held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.

Evidence

1. At the hearing of this application, the applicant relied on the following material: 1. an affidavit sworn by him on 2 August 2017; 2. an affidavit sworn by his partner, Ms AB, 2 August 2017; and 3. a report of Dr Emma Collins, Clinical and Forensic Psychologist, dated 27 March 2017.
2. The respondent relied on the s 58 documents (i.e. s 58 of the Administrative Decisions Review Act) that were filed on her behalf and copies of material produced pursuant to summonses that were issued by the Tribunal at the respondent's request.
3. Included in the s 58 Documents were copies of:

• the applicant's criminal history,
• material the applicant had forwarded in support of his application for a clearance (including a number of references),
• responses the respondent had received from the relevant Local Area Command of NSW Police, the relevant NSW Local Court, the Department of Family and Community Services, and the appellant's employer and former employers, and
• the respondent's risk assessment notes.

1. Included in the summonsed material were the transcripts of the triple zero calls Ms AB and her father had made on the night it is alleged the applicant assaulted Ms AB (i.e. July 2014). The respondent objected to the transcript of the call Ms AB's father made being placed before us. The grounds of objection were that the allegations against the applicant, as contained in the transcript could not be tested because Ms AB's father was not available for cross-examination: see FZ v Commissioner for Children and Young People [2010] NSWSC 1144 at [48]. After hearing submissions from the respective parties and noting that the Tribunal is not bound by the rules of evidence and "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" we allowed the material to be placed before us: see Civil and Administrative Tribunal Act, s 38(2). However, as Ms AB's father was not available for cross-examination we have placed very little weight on that evidence other than to note that AB's father made a triple zero call on the night in question.
2. The applicant also objected to a Police Event Report at pages 149 and 150 of the s 58 documents filed by the respondent. Again we allowed the tender of that document on the basis it was a police record of an event and not on the basis of the truth of what was asserted in the report.
3. The applicant, Ms AB and Dr Collins also gave oral evidence at the hearing and they were cross-examined by counsel for the respondent.
4. We have dealt with the evidence below in so far as it is relevant to the matters we are required to consider under s 30 of the WWC Act.

Background to the applicant's WWC application

1. The applicant initially applied for a WWC clearance in early May 2014. He was granted a clearance nine days later. In her reasons for decision, the respondent said the applicant had been granted a clearance because "he had no records to suggest he posed a risk to children."
2. At the time the applicant made his application for a WWC clearance there were two criminal charges pending against him. These were a charge for an offence of common assault and a charge for an offence of destroy or damage property. The victim of the alleged assault was the applicant's partner, Ms AB. The offences were alleged to have occurred during the early evening of 1 January 2014. The charges were laid the same day and a Provisional DAVO was also made against him. The protected person of the Provisional DAVO was Ms AB. On 6 January 2014, the Local Court converted the Provisional DAVO to an Interim DAVO.
3. It would appear that some time prior to 8 July 2014, the applicant pleaded guilty to the 1 January 2014 offence of destroy or damage property charge. However, he had not entered a plea on the common assault charge. When the charges were next before the Local Court, on 8 July 2014, there was no appearance by the applicant. The Court dealt with the common assault charge on an ex-parte basis and, in the absence of the applicant, entered a convicted on each charge and fined the applicant a total sum of $1,200 (i.e. $600 on each charge). The Court also converted the Interim DAVO into a final DAVO.
4. Twelve days later, on 20 July 2014, the alleged offending that gave rise to the sexual intercourse without consent charge occurred.
5. On 25 July 2014, having become aware of the charges, the respondent issued the applicant with a "Notice of Disqualification". The Notice was made under s 18(1) of the WWC Act with the effect of cancelling the applicant's WWC clearance, pursuant to s 23(1) of that Act.
6. The respondent was required to cancel the applicant's WWC clearance as the offence of sexual intercourse without consent is a prescribed "disqualifying offence" under cl 1(1)(e) of Sch 2 of the WWC Act. Having been charged with that offence the applicant became a "disqualified person" under s 18(1)(b) of the WWC Act while the charge remained pending.
7. On 30 March 2015, when the charge of sexual intercourse without consent was withdrawn, the applicant ceased to be a "disqualified person" for the purpose of the WWC Act. This did not mean his WWC clearance was re-instated. Under the provisions of the WWC Act, it remained cancelled, but he was entitled to make a further application after the charge had been withdrawn as long as he could satisfy the requirements of s 21 of the WWC Act, as it applied at that time (now s 13A). Section 21(1) places a five-year embargo on making a further application for a clearance after it has been cancelled, "unless there has been a change of circumstances under which a further early application is permitted under that section". Section 21(2)(a) provides that a further early application can be made where "proceedings that were pending at the date of the refusal or cancellation are withdrawn or dealt with without the person being found guilty of the offence."
8. The applicant did not make a further application until March 2016. As we have already explained, notwithstanding the withdrawal of the charge of sexual intercourse without consent, the respondent was required to conduct a risk assessment of the applicant under s 15 of the WWC Act.

Applicable Legal Principles

1. As the applicant is not a "disqualified person" there is no statutory presumption that he poses a risk to the safety of children, unless he proves the contrary: see WWC Act, s 28(7). Hence the general principle of administrative review applies in that neither party bears a burden of proof in establishing that the decision was, or was not, "the correct and preferable" decision: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]-[40]; BSR v Office of the Children's Guardian [2015] NSWCADTAD 264 at [17] and BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]. However, as noted by the Administrative Appeals Tribunal of Australia in Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 at [18]: "… [when] either party to such an application [i.e. a review application] raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge."
2. It is also accepted that where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at p362: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [33]. That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 at [15] per Dean J; BSR (supra) at [18]; BJB (supra) at [32] and Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 at [23].
3. In BKE (supra) at [30], His Honour Justice Beech-Jones said, where there are allegations of sexual abuse by an applicant for a clearance, significant guidance as to the approach to be adopted when considering the allegation and risk can be derived from the High Court's decision in M v M [1988] HCA 68; (1988) 166 CLR 69. His Honour went on to say at [33]: "... [it] may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
4. Finally, the jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.

(a) Seriousness of the matters that caused a refusal of the applicant's application for a clearance

1. The "trigger events", if true, are very serious. The respondent contended that it was open, on the material before us, to make a finding, on the balance of probabilities, that the 20 July 2014 alleged offending (i.e. sexual intercourse without consent, assault occasioning actual bodily harm and contravene a DAVO) had in fact occurred. In this regard the respondent pointed to the immediate and contemporaneous record of events, being the triple zero calls made by Ms AB and her father on the night in question and the police records of interview with Ms AB the same day. These records, the respondent contended were the most reliable record of events and that Ms AB's subsequent retraction was illogical in light of what she had said on the night in question.
2. In her triple zero call Ms AB is recorded as having said "it all started as we were having a few drinks and I come home and we started making … having sex and he stuck a fucking can up my cunt and I told him to stop it. …..(Inaudible). When I told him to stop he hit me with the bat." The call was made around 3am that morning and Ms AB went on to explain that her son stepped between them while the applicant was hitting her with the bat. She said she did not lose consciousness and her son was not hurt. However, her nose was bleeding and her face felt sore. She also said she wanted the applicant "charged with sexual assault."
3. Ms AB's father rang triple zero at about the same time. He is recorded as having said that his granddaughter had called him ten minutes earlier to say that her mother and the applicant were "having an argument" and she wanted him to pick her up. He is recorded as having said that he called her back and she asked him to call police.
4. Shortly after these calls, police attended Ms AB's premises. Ms AB was taken to the local hospital by ambulance and the applicant, who was standing in the neighbouring yard, was spoken to, arrested and taken to the local police station.
5. In her record of interview with police about, 1½ hours after she had made the triple zero call and was transported to the hospital, Ms AB reiterated the allegations she had made earlier. Ms AB explained that she and the applicant had gone to her friends place earlier that evening to have a few drinks. She said the applicant went home about half an hour before she did. She said she jumped into the bed and the applicant "started getting sexually, um active so I …. started getting sexually active with him." About five minutes later, Ms AB said the applicant "shoved a Rexona can up " her vagina when she told him to get off her because she felt intimidated. She said that was when the applicant "jumped up hysterical" and hit her in the head with a bat, "en axe handle". She said she fell to the ground at the door to her bedroom. It was then that her 14 year-old son came running in to see what was going on. She said her son told the applicant to stop when the applicant started packing his bag and moving it out of the door. She said she rang the police after the applicant "walked out the door." She also said that prior to leaving the applicant threatened her daughters who were aged 13 and 12 at that time.
6. In a follow-up record of interview a little later that morning, Ms AB explained that she and the applicant had gone to Ms AB's friends home at about 9pm that evening. She said she had consumed "four to five glasses" of Jim Beam while she was there and the applicant had six Hahn beers. She said they did not eat anything while they were there. She said she was a bit tipsy, but not drunk. She also said she thought the applicant was a little tipsy. She said the applicant went home at about 1am and she followed at about 1.30pm.
7. In the medical report dated the same day, Ms AB's "emotional presentation" was described as being "teary at times but coherent and logical in verbal account". Under the heading "General Examination", the medical report noted "bruising to medial left orbital ridge and tenderness across bridge of nose".
8. The applicant did not give an account of what had happened that evening. Police asked him whether he would participate in a record of interview. He refused, which he was entitled to do.
9. As we have noted above, about seven weeks later Ms AB made a statement to police retracting her version of events. In her statement Ms AB said the following: "I remember that I made a statement to Detective Meagan... at Hospital by Audio. The statement I made to Detective Megan was made without me thinking about what had really happened. On the night of the incident I was drinking with [the applicant] at my friend's place. I had not had any alcoholic drinks prior to this for about three years. I am still in a relationship with [the applicant]; we have been going out together for about three years. We have had our problems over the years and I now know from my point of view, that alcohol was the biggest fault where I am today. [The applicant] and I made love on the morning of the incident, I had stated that I did not want the Rexona can in my Vagina at the time I reported it. I want to go on record that I was in the act of making love with [the applicant] and that the Rexona can was part of the lovemaking process. I was angry with [the applicant] as we had had a great time while he was here on holiday, I knew he was going to go away and with the alcohol that I had consumed I was angry and said things that I should not have said. I did also get into a fight with [the applicant] and again I believe that alcohol was part of the problem. I said things to [the applicant] and the whole thing escalated out of control. After the incident I realised that I had an alcohol problem. I immediately decided to seek counselling for alcohol and depression, anxiety and stress. I sought out a counsellor through the women community health centre …. I also spoke to [the applicant] and he realised that we both love each other and we need to sort ourselves out. I have just completed my Certificate III in business administration and first aid and MYOB from …. I am now confident in being able to get some work and eventually start my own business. I have a applied and was accepted to move to [name of Town in central NSW] to live. I believe that this whole incident is an eye-opener and I am changing my life. I'm not saying [the applicant] did not hit me, but we both were in the wrong on that night."
10. In her affidavit filed in these proceedings Ms AB said the following in regard to the trigger event: "It is not true that [the applicant] picked up the wooden axe handle. He did not do that. I was acting in the same way I was on 1 January 2013 (sic) and [the applicant] wanted to leave. He pushed me away so he could leave. He pushed me with his hand. He said just leave me alone babe, I gotta go. That's when my nose started bleeding. [The applicant] kept saying " just leave me alone babe, just leave me alone". I think he was aiming for the shoulder but because I moved to side, he got me in the face. I lied in that statement I gave to the police. That's why I told police I didn't want to go through with the charges. I didn't think it was right going through something that he didn't do. My fault, I provoked. The kids were there. We were both raising our voices at each other. I kept pushing [the applicant], he was pushing me away. My son tried to help [the applicant], to help him leave, and I got upset with my son for trying to help [the applicant] leave. I thought my son had turned on me. [The applicant] would never threaten the kids. He did not threaten to hurt them if they called 000."
11. It was agreed that Ms AB's reference to the events of 1 January 2013, should have read 1 January 2014. On that day police had also been called to Ms AB's home after she had complained about having been assaulted by the applicant during an argument. As we have noted above, the applicant was charged and subsequently convicted of an offence of common assault and malicious damage to property. In her affidavit in these proceedings, Ms AB also retracted the allegations she made in regard to these charges. We have dealt with this incident in more detail below.
12. At the hearing of these proceedings, the respondent did not cross-examine Ms AB on her account of events set out in her 2014 retraction statement to police or her account of events as set out in her affidavit filed in these proceedings. In response to questions asked of her, she acknowledged that she and the applicant had been in an ongoing relationship for some years. They still live some distance apart, with the applicant visiting her and her children every couple of months and he stays for two to three weeks. Ms AB said she also goes and visits the applicant on occasions. She said the applicant helps her a lot, including financially. When asked whether it would be hard for her to manage without the applicant's help Ms AB said: "he's always there for me and the kids."
13. In her written submissions the respondent contended that in light of Ms AB's "clear" statement to police on the night in question and the fact the applicant had been convicted of having assaulted her on 1 January that year, her retraction statement lacked credibility. It was also contended that it was improbable that Ms AB would make up what she told police so as to stop the applicant leaving. We note that Dr Collins when assessing the applicant had also spoken separately to Ms AB. In her oral evidence, Dr Collins said that, based on Ms AB's account of events, she was of the opinion that Ms AB's relationship with the applicant was a genuine one.
14. Having heard Ms AB give oral evidence, we find that her relationship with the applicant is genuine. Despite living some distance apart, they have remained supportive of each other and there was no suggestion of her being fearful of the applicant or that she had altered her account of events because she was financially dependent on him. That is, we were not persuaded that she was untruthful in her evidence before us, or that her retraction statement lacked credibility. As we have noted, her retraction statement was made very shortly (i.e. seven weeks) after the alleged events are said to have occurred. In that statement, Ms AB did not go so far as to say nothing had happened. She acknowledged that she was intoxicated at that time, they had argued and the applicant wanted to leave but she intervened and tried to stop him. In doing so, the applicant pushed her and she fell. She said they were equally responsible for what occurred. She also explained that following the incident she realised that she had a problem with alcohol, which had caused tensions in their relationship. She did not go on to say that the applicant had a problem with alcohol and was intoxicated. She went on to say she had taken steps to address her alcohol problem, which included moving to another town. The lack of any further reports of a similar altercation between Ms AB and the applicant, in our view, supports the evidence she gave in these proceedings and in her unchallenged retraction statement.
15. The applicant's account of events is largely consistent with that of Ms AB. They differ in that Ms AB said they had consensual sex that evening and the applicant said they did not have sex that evening. As pointed out by the respondent, police undertook a screening test for semen on the top of a Rexona aerosol can that had been found on the floor behind the door of Ms AB's bedroom. The test was undertaken by Senior Constable C Wells, who said in his statement dated 11 October 2014, that the test "indicated positive for the possible presence of semen". We note Senior Constable Wells went on to say that "a positive test result indicates that semen MAY be present."
16. Senior Constable Wells was present when police attended Ms AB's home on the night in question. He located and removed the can for testing. We note Senior Constable Wells also tested a 900mm pick handle that was located up against the wall between the toilet and bathroom doors. He said it appeared new and unused and there was "no sign of any biological matter anywhere on the item." Swabs were taken from the handle end and the head end, but no blood was found. In his statement, Senior Constable Wells said: "There was no other area of interest with this item".
17. In our opinion, the test for the presence of semen undertaken by Senior Constable C Wells is not sufficient to establish that Ms AB and the applicant engaged in sexual intercourse that evening. As we have noted, Ms AB's evidence was that the aerosol can was something she/they used in their lovemaking. The applicant did not state otherwise, he only said they did not have sex that evening. We accept he could be mistaken, as could Ms AB on the question as to whether they engaged in sexual intercourse that evening. In any event we accept that if they had engaged in sexual intercourse it was consensual.
18. Having had the benefit of observing the applicant give his evidence we found him to be a credible and reliable witness. He presented as being genuinely nervous, yet respectful and very open and frank, to the best of his recollection, when giving his evidence.
19. The first recording of the applicant's account of events is that contained in his affidavit filed in these proceedings. In that affidavit he said that it was Ms AB's birthday so they went out with friends for drinks and dinner. He said he doesn't usually drink or smoke around the children, but that night he had a few Hahn Lights. He said that at around 11pm or 1am Ms AB said he looked a "bit drunk" and asked if he wanted to go home. He said after "deliberation" they both went home. He had a shower and fell asleep. When he woke up he found Ms AB had gone across the road to a friend's house. He went over to the house and found she was drinking. He returned home and she followed some 10 to 15 minutes later. He said when she came back: "… [she] was galivanting around, raising her voice saying you don't want me with you, she was upset, she came in the room yelling, she said a bunch of stuff about me cheating … I said I don't cheat, … I said I live all the way up in [name of the town], I'm not coming all the way up here not to be with you. This is a good life for me at the moment, having someone who cares for me, I'm working, …."
20. The applicant said Ms AB "just kept going on" so he said he was going to go home "even if I have to sleep at the police station or a friend's house until I sober up." He said Ms AB tried to stop him leaving. She pushed him, but did not hurt him. He said he pushed Ms AB away from him because he wanted to get out and she was holding onto him. He said that when he pushed her away he did not intend to hurt her. He wanted to leave and she was stopping him. He said one of the kids came in and he said; "get your mother away from me, I want to get out of here - she won't let me out - I want to get out." He said he did not want to be with Ms AB when she was drunk and abusive and he thought Ms AB's son tried to get her off him.
21. The applicant denied he swung a wooden axe handle at Ms AB, or that he had threatened the children.
22. In his oral evidence, the applicant's account of events earlier in the evening of the night in question differed a little to what was contained in his affidavit. In this regard he said he, Ms AB and the children had gone to the club earlier that evening and returned home at about 9.30pm. At about 10pm he and Ms AB went across the road. He said he returned home about 11.30pm and midnight and fell asleep. When he woke up at 1.30 to 2.00am he found that Ms AB had not returned home, so he went across the road. He said she was still there drinking. He said they came home about 2.30am. He said Ms AB was drunk and stoned. He agreed they argued that evening and he wanted to leave and go home, but Ms AB was stopping him. Later in his oral evidence, the applicant explained he does not like violence and always leaves ("gets out") in situations of violence. He said he told police that he had done nothing wrong and that he wanted to "get out of there". He said the police made arrangement so that he could leave.
23. For the reasons set out above, on the material before us, we cannot be satisfied, on the balance of probabilities that the applicant engaged in sexual intercourse without consent as charged. On the contrary we find it did not occur as initially alleged by Ms AB. We also find that the applicant did not assault Ms AB with a bat causing actual bodily harm. Whether the applicant's push/hit of Ms AB amounted to an assault we cannot say on the material before us. However, on the basis of Ms AB's retraction statement and her evidence in these proceedings we are satisfied that she was not fearful of the applicant at that time, or any other time. As she has noted she was only fearful of him leaving her.
24. In terms of risk to the safety of children, our only concern is that the argument between the applicant and Ms AB was such that it woke the children who witnessed or heard what was being said and done. The argument also occurred at a time the applicant knew Ms AB was intoxicated and that her children were sleeping in the house.

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

1. It is three years since the events of July 2014 and the applicant has not been convicted of any further offences. However, he has been the subject of two complaints to police for anti-social behaviour. Both incidents occurred in October 2015. The first incident appears to have been a family issue and for which police took no action. The second incident occurred when the applicant became involved in an argument with an adult customer at the art gallery/café where he was working. In his oral evidence, the applicant acknowledged he got into an argument with a customer whom he had asked to leave as he was swearing. Again, police took no further action.
2. The respondent's s 58 documents contain a further report, dated October 2014, of alleged sexual assault of a 47 year old female, in which the applicant is named as the person of interest (POI) in the heading of the report. We have placed no weight on this report as there is a statement, in bold, at the end of the report which states that the POI was not known at that stage and the victim was not returning their calls. We also note the applicant was unaware of this report and denied he has ever sexually assaulted anyone. We have placed very little weight on this report.

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

1. The applicant was 34 years of age at the time of the trigger events.

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

1. Ms AB was 35 years of age at the relevant time and vulnerable due to being intoxicated.

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

1. The applicant and Ms AB were of a similar age. They were partners and have continued to be partners since that time.

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

1. Ms AB was not a child.

(g) The person's present age

1. As at the hearing, the applicant was 38 years of age.

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

1. The applicant has a criminal history dating back to 2002, when he was 22 years of age. However, his criminal record is neither lengthy nor very serious. In August 2002, the applicant was found guilty of an offence of behaving in an offensive manner in/near public place/school. The NSW Local Court did not enter a conviction and the applicant agreed to be subject to a 12 month good behaviour bond. In March 2010, the applicant was charged with the offence of affray. That charge was subsequently dismissed.
2. The next offence occurred on 1 January 2014. This offending conduct also arose at a time the applicant was visiting Ms AB. The Police Fact Sheet states that at about 7.30pm that day when Ms AB saw the applicant in her bedroom packing his bags. An argument ensued and it was alleged that as Ms AB walked back into the kitchen she turned around to see the applicant had followed her and that he picked up a chair and raised it above his head and told Ms AB: "I'm gonna bash you all over your fucking head." It was alleged the applicant hit the chair against the kitchen window a number of times - the glass broke and some landed on Ms AB who was down on her hands and knees. It was alleged the applicant then left and Ms AB called the police. Police found the applicant sitting outside. The Fact Sheet notes that the applicant was compliant and co-operative. The applicant was subsequently charged with an offence of common assault and an offence of destroy or damage property.
3. As we have noted above, the applicant pleaded guilty to the property offence. He was subsequently convicted, in his absence, of that offence and the common assault offence and fined a total sum of $1,200.00.
4. In his affidavit filed in these proceedings, the applicant said he had gone out earlier that day because Ms AB was drunk. He said that when he got back he wanted to leave to go back to his home-town and Ms AB was not happy about this. He said he attempted to go out the back door but Ms AB blocked him and tried to make him stay. He denied he picked up the chair and threatened Ms AB as alleged, but he did recall that the window smashed when the chair on top of the table fell backwards onto the window as he was trying to leave through the back door. He said he did not fight the DAVO. Instead he went back home to: "let it settle because I didn't want to rush in and get myself in trouble." That is, he continued working at home.
5. In her affidavit, Ms AB said that she and the applicant had a dispute that day. She said she was intoxicated and the applicant "wanted to walk". She said she pulled him back and that she kept "going at him". She said the applicant did not threaten her as alleged. She said the applicant is not a violent person - that he avoids violence and that she blamed herself for what happened. She said she assaulted him and that she told the police the applicant had smashed the window because she knew the police "would take him away because he was a male" and she wanted him back.
6. During cross-examination the applicant was asked why he pleaded guilty to the property offence and why he did not appear at the hearing or appeal his convictions if he had not behaved in the manner alleged. In regard to his failure to appear, the applicant said he was out working on "the properties" and did not get the papers on time and he took no steps to appeal because the legal aid office was not open on the day he returned to town.
7. Again, we found the applicant to have been a credible witness. He was clearly unfamiliar with what his rights might have been and he does live in a remote area of NSW where legal assistance is difficult to obtain, especially legally aided assistance.
8. The respondent also pointed to two incidents in 2013 when the applicant came to the attention of police. The first incident occurred in October when police witnessed an altercation between members of the applicant's family. The applicant was present and there was a fight between two members of the family. At the end of the fight the fighting family members shook hands and went their separate ways. No complaints were made to police and we note the applicant has a large extended family.
9. The other incident occurred in December 2013 and involved an argument between the applicant and his brother-in-law. Police took no action, but noted the brother-in-law appeared to be the aggressor.

(i) The likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition

1. Dr Collins, Clinical and Forensic Psychologist, assessed the applicant on 27 March 2017. Dr Collins interviewed the applicant for the purpose of her assessment via Audio-Visual Link. As we have noted, Dr Collins also had a telephone discussion with Ms AB on 23 March 2017.
2. In her report filed in these proceedings, Dr Collins set-out the applicant's background history, his psychosexual history, medical history, substance use and gambling history, criminal history, Family and Community Services (FACS) history, psychological assessment and risk assessment.
3. In this regard Dr Collins noted the applicant did not endorse any deviant sexual practices, including a sexual interest in children. He also denied any history of pathological gambling or illicit drug use. He told Dr Collins he had never been interested in drugs, but has been exposed to the harmful effects of drugs through extended family members. He told Dr Collins that he first consumed alcohol when he was 22 or 23 years of age, but does not drink regularly.
4. Dr Collins noted that from early childhood the applicant had been diagnosed with epilepsy, which is being treated with medication. He manages his epilepsy by ensuring he does not become overly tired. He has a regular afternoon sleep and has not had any seizures recently. Dr Collins noted the applicant did not report any significant symptoms of depression or anxiety. However, she did note that the applicant said that at times his anti-convulsant medication has an affect on his mood. Eating regularly and taking naps assist with his moods.
5. Dr Collins also noted the applicant's response to a report FACS received in March 2014 concerning Ms AB's son, who had reported that the applicant "boots him up the ass." We note the report was made in the context of Ms AB's son having come to school "stoned" and his mother having disciplined him. We note there is a further report to FACS of the applicant having hit Ms AB's eldest daughter, because she had been using drugs. The applicant denied hitting any of Ms AB's children, but he did acknowledge that he had made a threat to kick the son up the arse and was "somewhat rough with them" when he found out they were using drugs. In his oral evidence, the applicant explained that the children's' case workers came and spoke to him and Ms AB about such threats and made suggestion of more acceptable disciplinary methods. We note no further reports were filed.
6. In regard to assessing risk, Dr Collins said that as the applicant's criminal history reflected charges and convictions against a current intimate partner, tools associated with risk of future partner violence were applied. In terms of risk, Dr Collins concluded as follows: "In terms of risk assessment, [the applicant] was assessed across tools predicting spousal assault recidivism risk. He was rated as falling in the low risk range for future partner assault. Whilst it is of course the role of the Tribunal to establish the facts in this matter, I had to code allegations for the purpose of conducting a risk assessment. I do not believe there is clear and convincing evidence to suggest that [the applicant] poses a specific risk in terms of violently or sexually assaulting someone outside of his spousal relationship. It may be argued that if there is any risk posed within the partner relationship (low or otherwise), there is the possibility that this could be witnessed by his partner's children. This is indeed possible. However, the risk of spousal assault is considered low and therefore the risk of children bearing witness to this is also rated as low. I do not consider that [the applicant] has any significant risk factors currently present or relevant that highlight specific risk towards any children. In providing this opinion I have considered all of the information available to me, including his prior offences and allegations and the evidence provided to me by his partner."
7. During cross-examination Dr Collins agreed that she based her assessment on what she was told by the applicant and Ms AB during their respective interviews. However, we note Dr Collins was provided with a copy of the s 58 documents for the purpose of her assessment and it was on the basis of the information contained in these documents that she questioned the applicant and Ms AB.
8. Dr Collins also agreed that she had not been provided with a copy of Ms AB's retraction statement to police, or the transcript of the triple zero calls made by Ms AB and her father. She also agreed that this material would have been relevant to her assessment.
9. In light of our findings that the applicant and Ms AB gave credible evidence, we doubt Dr Collins' conclusion would have differed had she been provided with this material.

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

1. In support of his application to the respondent, the applicant provided a reference from his employer, a friend and a colleague. His friend and colleague completed a proforma "Reference" form provided by the respondent. His colleague and friend both said they had seen the applicant work with students and in response to the question as to whether, to their knowledge the applicant ever demonstrated inappropriate behaviour or abuse to children, his colleague said "Not to my knowledge" and his friend said "[The applicant] has always shown good character with children."
2. The reference of the applicant's employer said they had always found the applicant to be true to his word, diligent, well organised and a man of high integrity and pride in his artistry of painting and larger scale mural painting. The employer also said he had no hesitation in recommending the applicant for any work in relation to painting, art, and engagement of youth and young people in meaningful ways. However, the employer made no reference to having any knowledge of the charges laid against the applicant.

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

1. In her oral submissions, the respondent reiterated her position that we could be satisfied that the applicant posed a risk to the safety of children for the reasons set out in the written submissions filed prior to the hearing of the matter.

Can we be satisfied that the applicant poses a risk to the safety of children?

1. In our opinion, having regard to the s 30(1) matters set-out above and that the safety of children is paramount, we are not satisfied the applicant poses a risk to the safety of children if he were to be granted a working with children check clearance. In summary we have found that the alleged July 2014 offending, as charged, did not occur and that Ms AB's complaint to police was exaggerated and fabricated in part. We have made a similar finding in regard to the alleged events of 1 January 2014. That Ms AB and the applicant argued/fought is not disputed and of concern in this application is the fact that their argument was such that it woke Ms AB's children, who witnessed or heard them argue/fight. It would appear that Ms AB may have been aggressor. However, to the knowledge of the applicant she was also intoxicated at that time. She has addressed her problem with alcohol and the applicant has acknowledged that arguing/fighting in front of children can affect them adversely. That his relationship with Ms AB has remained stable is another factor in his favour.
2. There is no evidence of the applicant having abused, or sought to abuse any child. His altercations (those reported and those found to have been established) are limited and appear to have been largely domestic in nature between himself and his partner and his extended family. We accept his evidence that he endeavours to avoid violence at all times.
3. We also accept the opinion of Dr Collins that given the applicant's background and history the risk of spousal/partner assault by the applicant is low and that there is otherwise no evidence of any significant risk factors that are currently present or relevant which highlight any specific risk of harm to children by the applicant. That is, on the evidence we are satisfied, to use the terms of his Honour Young CJ, in the circumstance of this application the applicant does not pose a real and appreciable risk to the safety of children.

Are we satisfied 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 affected person is engaged in any child - related work?

1. In our opinion, a reasonable person, being acquainted with all the relevant facts of which we have been made aware (including Ms AB's retraction statement and the report of Dr Collins), would allow his or her child to have direct unsupervised contact with the applicant while he was engaged in child-related work. As we have noted, there is no evidence of the applicant having harmed a child, yet he has mentored children in his work as an artist.

Is it in the public interest to make an order?

1. In ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162, at [20], the High Court (per French CJ, Gummow and Crennan JJ) said: "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."
2. In ZZ v Secretary, Department of Justice [2013] VSC 267, at [206], Bell J noted that the Victorian Working with Children Act plainly identified the primary public interest to which it was addressed. The main purpose of which is the protection of children from sexual or physical harm and this was achieved by "ensuring that people who work with, or care for children have their suitability to do so checked by a government body."
3. In our opinion, the same applies to the WWC Act. That is, the public interest consideration in s 30(1A(b)) is a broad concept with the main purpose of protecting children from harm in a child-related work environment, which is achieved by not permitting certain persons to engage in child-related work and requiring those who do engage in such work to have a clearance (WWC Act s 3). Bell J went on to explain that the concept of what is in the public interest can change with time in response to changing economic and social circumstances and cannot be "confined by inflexible specification."
4. In our opinion, based on our findings above, it is in the public interest to make the order sought. We make that finding primarily on the basis that there is no evidence of the applicant posing a real and appreciable risk to the safety of children and the fact that the January and July 2014 alleged offending that gave rise to the respondent's decision to cancel the applicant's clearance and her subsequent decision to refuse his re-application for a clearance were founded on a complaint the victim (Ms AB) has admitted to have been exaggerated and false in part. The applicant is otherwise a valued member of his community and his former employer we note is willing to re-employ him if his clearance is granted.

Orders

1. For the reasons set out above, the Tribunal orders: 1. The respondent's decision made on 16 November 2016 to refuse the applicant's application for a working with children check clearance is set aside. 2. In substitution for that decision a decision is made to grant the applicant with a working with children check clearance.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 January 2018