DAI v Children's Guardian

1991 offence

1. In 1991, the applicant pleaded guilty to the offence of common assault for which he was placed on a two-year good behaviour bond.
2. According to the facts on which the applicant was sentenced, his then four- month-old son had been admitted to hospital and treated for injuries including small circular bruising to the body. The applicant admitted to the police that he had caused the bruising. The baby had been constantly crying and the applicant had hit him with what he thought was a nappy but which he later realised an infant's jumpsuit, with the metal press studs causing the bruising. The facts note that 'the infant is well cared for by the parents apart from this incident.'
3. The police facts further state that: Investigation into this matter revealed a tragic set of circumstances leading up to this event. Including an accidental pregnancy, a wife suffering from post-natal depression and other matters requiring surgery as a result of the birth of the infant. The defendant discharged himself from the Regular Army and obtained night work in order to assist his wife during the day. The pressure and stress of this situation obviously took its toll leading to this incident.'
4. A recommendation by the magistrate was made that 'this conviction be viewed in its context re the facts and be not necessarily a bar to [DAI's] continued holding of a licence for security work.'
5. Documentation contained on file reveals that on examination at the hospital, the baby was found to have sustained a fractured skull. No charges were laid in relation to this injury.
6. On the day of the injury, the applicant had told his wife that the injury had occurred when the baby car capsule - with the baby inside it - had fallen off the washing machine.
7. In his written statement prepared for these proceedings, the applicant stated that on the day the baby was injured, he had been looking after him while his wife was away. He had taken the baby shopping, returning home at 3pm. According to the applicant: I had a shopping bag in one hand and [the baby's] basket in the other as a I entered the house. I placed [the baby's] basket on the washing machine but it slipped down. [The baby] did not fall out of the basket and I checked him over to make sure he was OK before taking him into the lounge room he wasn't crying and didn't appear upset… Later that afternoon [the baby] began to cry and I examined him and found that his nappy was wet. He continued to cry as I undressed him and his crying angered me. I was holding his jumpsuit in my hand at the time and I hit him with it. I am unable to rationalise my behaviour which when I think about what happened I feel very low.
8. In oral evidence before the Tribunal, he agreed that it was possible that the baby had sustained the head injury when the baby car capsule fell off the washing machine. He told the Tribunal that he couldn't think of anything else that could have caused the injury. He denied having told hospital staff that he had caught the capsule as it fell off the washing machine, saying only that he 'might have made a grab for it' but that 'he could see it on the floor on the side.' He remembered that baby having still been strapped into the capsule and was confident that he was returning from shopping rather than going out to do the shopping. He knew this because he remembered having 'heaps of bags on the laundry floor' and told the Tribunal that he had put the baby on the washing machine because he had a handful of shopping and that there would have been 'no reason to put him on the washing machine if I had two hands.' He doesn't accept the accuracy of the police statement that he had been on the way to go shopping although he conceded that he had been upset, and that he 'may have said it, may have stuffed it up or got it wrong.'
9. He remembered the incident as having occurred at about 3pm but accepted that if he had told people that it occurred at midday, it was a possibility that that was when it had occurred. At the time, he didn't notice any unusual behaviour by the baby that would have led him to believe that he'd sustained a head injury or that he might have needed medical treatment. He didn't notice any swelling to the baby's head. He denied deliberately causing any head injury to the baby.
10. Notes taken during the applicant's attendance at a counselling service in 1991 state that: [DAI] is very upset about hitting his son and wants to help to prevent this ever happening again. Guilt about hitting his son. Suicidal thoughts…Stress.
11. Medical documentation prepared following the examination of the child in 1991 states that: On his right parietal area he had a boggy soft tissue haematoma. On the left side of his chest, upper abdomen and left knee there were approximately a dozen, browning bruises some with the configuration of a target, i.e. circular line with a dot in the centre, about the size of a press stud. He was clean and well grown…Skeletal Survey X-rays revealed a linear fracture of the right parieto-occipital region with no other fractures. A CT scan of his head done about a week later revealed no intracranial pathology.
12. The treating doctor found it conceivable that the fractured skull could have been caused 'by the fall as described if the boy was not securely restrained within the capsule' but noted that 'because of the non-accidental injuries to the child's body, considerable suspicion surrounds the events leading to his fractured skull.' The doctor suggested that the Department of Family and Community Services do a trial with a doll to assess whether the side of the head would hit the lower side of a dropped capsule. There is no evidence that any such trial or further investigations ever took place.
13. On the evidence before us, we are satisfied that the applicant caused bruising to his infant son by flicking a jumpsuit at him to stop him crying while he was changing him. We accept the applicant's evidence that he was exhausted and upset at the time and had mistaken the jumpsuit for a nappy, which he would usually flick at the baby to distract him. We accept that the applicant was upset when flicking the baby with the jumpsuit and flicked the baby with enough force to cause bruising. On the evidence before us, we accept that the applicant felt remorse immediately after the offence and continues to regret his actions today.
14. There is no evidence before us that the fracture sustained to the baby's head on the same day was deliberately inflicted by the applicant. Although a hospital staff member suggested that there was 'considerable suspicion' surrounding the events leading to the fracture, on the evidence before us neither the suggested trial by the Department of Family and Community Services or any further investigations ever took place. In the absence of any further evidence, we accept the evidence of the applicant that the car capsule containing the baby fell off the washing machine and that swelling to the baby's head was noticed by the baby's mother after that. On this basis, we find, on the balance of probabilities, that the fracture to the baby's skull occurred when the car capsule containing the baby fell off the washing machine at the family home. We are not satisfied that the applicant deliberately caused this injury to the baby's head. In reaching this finding, we give little weight to the slight differences in accounts provided by the applicant which we attribute to his emotional state and exhaustion at the time rather than to his being untruthful.

1993 offence

1. In 1993, the applicant pleaded guilty to assaulting his then wife for which he received a recognisance to be of good behaviour for a period of two years.
2. The facts sheet contained on file states that: The defendant and his wife began to have a verbal argument over custody of their two children as they are seeking a divorce. The victim stated to the defendant that she planned to place their two children into foster care until she had sorted her life out. As a result of this statement, the defendant became aggressive and told hold of the victim around the throat with both his hands threatening to kill her. The victim struggled with the defendant and as a result the defendant struck the victim to the left side of the head with a clenched fist causing redness and swelling to the left side of the victim's forehead.
3. In his statement to the Tribunal, the applicant wrote that on 7 August 1993, he and his by then ex-wife were arguing when she told the applicant that she was going to 'put the kids into foster care and you'll never see them again'.
4. In his statement, the applicant wrote: When she said that I reached out and put my hand on her throat and I said to her 'You are not a fucking mother's arsehole.' I have to take primary responsibility for what happened next as my insult sent [her] into a rage and she lunged at me and in trying to block her attack I struck her head unintentionally. [She] called the police and I was arrested and charged with assault which I pleaded guilty to but unfortunately I didn't read the charge sheet and found out later that it contained allegations I didn't agree with, nonetheless I take full responsibility for what took place as I should never have said that to [her].
5. According to the applicant, later that year his ex-wife moved out of the house she shared with the children and the applicant moved in to take up the sole care of the children. It is not disputed that the applicant was the primary carer for the two children for the majority of their childhood.
6. In oral evidence to the Tribunal, the applicant denied putting both hands around his then wife's throat and threatening to kill her. He denied having slapped her or punched her but agreed that he had grabbed her around the throat and told her that she was 'not a mother's arsehole.' He agreed that he made contact with his wife's face with the side of his open hand.
7. Further notes taken in 1991 noted the need to concentrate on the applicant's violent impulses. In a counselling questionnaire completed in 1991, the applicant answered yes to the following questions in a counselling questionnaire completed in 1991:

• did you ever hit or throw things at your husband/wife/partner?
• were you ever the one who hit or threw things first, regardless of who started the argument
• did you hit or throw things first on more than one occasion?

1. In oral evidence before the Tribunal, however, the applicant denied having been violent to his then wife prior to 1993 although he later agreed that he may have pushed her or grabbed her so he could stop her from hitting him. He was unable to recall specific details of the counselling he underwent in the 1990s.
2. In notes taken after the 1991 offence, the applicant is quoted as having admitted to an earlier incident of domestic violence when he 'hit his wife out of frustration as she had been provoking him for some time.'
3. In a report dated 22 September 1993, the psychologist, Carol Boland, considers the circumstances behind the assault and states that the applicant 'has expressed to me his regret at his actions which he appears to realise were unacceptable.'
4. It would appear from a Community Service Order report contained on file that the applicant breached his order and was fined $366. The applicant told the Tribunal that he was unaware of the breach. There is no evidence before the Tribunal to confirm that he was ever made aware of the breach.
5. There is little evidence before us in relation to the 1993 offence. Indeed, it is the advice of the NSW Police Force that all records would have been destroyed in relation to these proceedings. A facts statement in relation to the charge is before the Tribunal but it is unclear whether these are the agreed facts to which the applicant pleaded guilty. In evidence before the Tribunal, the applicant said that he put one hand (rather to two hands) to his ex-wife's throat, said that 'she was not a mother's arsehole' (rather than threatening to kill her) and made contact with the side of her head with an open hand (rather than striking her with a clenched fist).
6. No evidence from the applicant's ex-wife is before the Tribunal and the Tribunal accepts that the sentence given to the applicant, to be of good behaviour for two years, is an indication that the magistrate viewed the offence to be at the lower end of seriousness.
7. On the evidence before us, we accept that the applicant grabbed his ex-wife by the throat, was verbally abusive to her and made contact with the left side of her face.

Reports from authorities

1. The applicant's now ex-wife made a report to the Department of Family and Community Services on 21 May 2005 in relation to her concerns that the couple's then 14-year-old autistic son had been left alone overnight by the applicant. When contacted by police, the applicant agreed that he had left his son at home at lunchtime that day with the intention of visiting his mother and returning home the following day. The applicant told police that his son suffered only a minor case of autism and that he had been in contact with his son earlier that evening. No charges were laid or further action taken and in the absence of details of the incident, we give no weight to it.
2. According to a letter from the NSW Police dated 10 April 2017, apart from this incident and the applicant's two convictions for assault 'there are no other recorded events of violence, child abuse or matters of a sexual nature.'
3. A COPS event record notes that in 1995, there had been allegations that the applicant had struck the complainant's right cheek in an argument over maintenance payments. No further details were provided and it appears that no charges were ever laid. In light of the paucity of evidence before us, we give no weight to this report.
4. An officer from Family and Community Services interviewed the applicant's son when he was at pre-school in 1995 following reports that he and another child had been engaged in sexual behaviour. No action was taken and the investigation was closed. The officer noted that 'the applicant presented as a parent who take his job of parenting very seriously. [His son] appeared to be well cared for and very attached to his father.' On the evidence before us, we draw no adverse inference from this report.
5. A subsequent report in 1998 in relation to the children's grandmother confirmed the applicant as the children's primary carer, that the children stated that they were happy living with their father and noted that their mother had alternate weekend access.

Applicant's letter to the Children's Guardian

1. Following the refusal of his working with children check clearance, the applicant wrote to the Children's Guardian to express his disagreement with the decision and requesting that weight be given to his behaviour over the 23 years since his conviction for assault in 1993. He also explained the circumstances of his 1991 and 1993 convictions and described in details the financial and marital pressures he had been under at the time. His letter is emotional and addresses, in part, what he sees to be the shortcomings of the Children's Guardian's decision to refuse him a working with children check. The contents of the letter are, however, consistent with his statement and oral evidence to the Tribunal and we give little weight to its emotional content.

Psychological report by Dr Lennings

1. The psychologist, Dr Lennings, provided a risk assessment report for the applicant dated 25 May 2017 and a supplementary report on 30 May 2017.
2. Dr Lennings noted that the applicant was quite difficult to interview because he 'is a loquacious man who tended to ramble in his answers, and at time could be somewhat tangential. He has [a] very poor memory and has difficulty in sequencing events and is terrible with numbers.' He also expressed the view that the applicant 'appears to have some fundamental problem with literacy, and possibly he had some kind of learning disorder.'
3. According to Dr Lennings, although the applicant's account could be somewhat unreliable due to his difficulties on sequencing, Dr Lennings noted 'a general consistency in the accounts that he has given.' In particular, he noted that despite the sequencing issues, 'the broad features of the account in relation to how his son was injured remain[ed] standard across accounts.' He told the Tribunal he was confident that he on the basis of the documentation before him and his interview for the applicant, he had a reasonable picture of his life between 1991 and 1995.
4. In Dr Lennings' opinion, the slight inconsistencies in relation to the events occurring on the day when the baby sustained his injuries were peripheral rather than critical issues, did not alter the overall consistency of the applicant's account and needed to be considered in light of the fact that the applicant was both distressed and chronically fatigued at the time.
5. Dr Lennings found that at the time of the child abuse allegation, the applicant had been in a highly stressed state due to his having taken long service leave from the army, having to work a series of part time jobs and coping with the significant emotional problems of his wife after the birth of their son.
6. According to Dr Lennings, the applicant experienced significant remorse and guilt for his behaviour in hitting his baby son with a jumpsuit, such that the studs caused bruising. In making his assessment, Dr Lennings considered whether the applicant had deliberately caused the head injury to the baby and decided that he had not. He told the Tribunal that it would not have changed his opinion if the injury had been deliberate as the injuries sustained at around the same time are viewed as one broad event.
7. In relation to his risk assessment for the applicant, Dr Lennings made the following findings: The risk factors that would have impacted on risk of abuse in the 1990s would have been relationship discord, the age of the child and the finding of injury to the child. Had actuarial assessment occurred at that time [it] would have indicated moderate risk of a sustained re-notification within a 12- month period…Since no re-notification occurred, essentially his risk has reduced to that not distinguishable from a person in the general population… The main risks found are his ill health, which is a non-specific risk factor and unlikely to lead to any appreciable risk of harm to a child and the fact that he remains in financial difficulties because he cannot get his [working with children check clearance], and [were] he to do so that risk would cease to exist. On the basis of the assessment he appears to fall into the low risk category and it is difficult to see any appreciable risk of harm towards children as a result of the current assessment… In the circumstances where more than 25 years has elapsed without observation of further harm, the likelihood that a person is likely to harm a child is observably minimal….An assessment of risk factors suggests that he currently falls into the very lowest risk in regards to any concern about his risk of harm to children.
8. Dr Lennings further noted that according to the risk literature, age confers a protective factor upon risk. Given that the applicant is now 59 years old, it is Dr Lennings' view that 'it is highly unlikely given his current age that there would be any harm in his behaviour towards children.'
9. The applicant completed a Personality Assessment Inventory (PAI), which is regarded as a powerful test of adult personality. According to Dr Lennings, the applicant's responses indicated some defensiveness, a reluctance to admit some minor problems and that some of his responses were subject to exaggeration and that his answers were dominated by his excessive health concerns. Given his condition of chronic obstructive pleural disease (a lung disease), Dr Lennings expressed the view that the applicant's concerns had some basis in reality. In assessing the applicant's PAI, Dr Lennings stated he was not particularly concerning and that it did not change his view in relation to his finding that the applicant falls into the very lowest risk in regards to any concern about his risk of harm to children.
10. When shown notes taken in 1991 by the Vietnam Veteran's Counselling Service, Dr Lennings told the Tribunal that it 'suggested a lot more difficulty than I thought at the time.' Whilst this information would have affected his risk assessment at the time, Dr Lennings noted that he had already assumed that domestic violence had taken place when assessing the applicant and that this additional information did not affect his current risk assessment. When shown evidence that the applicant had been receiving treatment for anger management in 1991 and his statement that he had only pleaded guilty because he didn't want welfare involved and didn't want his wife to lose the children, he told the Tribunal that this information in relation to events occurring 25 years ago did not change his estimation of the applicant's risk now. Evidence that the applicant had experienced a difficult childhood himself did not alter Dr Lennings' clinical judgement of the applicant.
11. We found Dr Lennings' evidence, his initial risk assessment report and subsequent report to be thorough and considered and have given his views substantial weight in reaching our decision in this matter.

Statement of the applicant's daughter

1. In a statement prepared for these proceedings, the applicant's 25-year-old daughter stated that her father had become a sole parent in about December 1993 when she was approximately 18 months old and her brother was three years old. She and her brother lived with her father until she was 10 years old when she moved to Sydney to live with her mother so that she could attend the local public school which had a particularly good reputation.
2. She later returned to live with her father for her high school years.
3. She wrote that: Dad would spend time with me going through my school work. He was clever at maths and when I was in year 5 I was given year 7 maths to do. Dad has always had problems in expressing himself and mum used to review his written work for him although he makes up for it in being very good at maths. I had what I considered a normal childhood dad would take my brother to sport and help coach whenever he could. I particularly liked playing tennis and I would have tennis coaching on two days a week and play tournaments on Saturdays and dad would take me…Dad has always been very tolerant of Evan and me he only ever raised his voice if we were particularly noisy. He never physically disciplined me. I understand that my father and mother have had problems in the past but they get along now and dad has stayed with mum in Sydney from time to time. I don't believe they could ever live together as mum suffers from Asperger syndrome and can be difficult at times but they have always kept in touch especially with matters concerning Evan and me.
4. No issue was taken to the statement of the applicant's daughter and she was not required for cross-examination. On this basis, we accept her evidence.

Matters to be taken into consideration - section 30(1)

1. In determining this application, the Tribunal must consider those factors set out in section 30 (1) of the Act. The evidence will be considered under each of the following subheadings.

The seriousness of the offences that caused an assessment and a refusal of a clearance or imposition of an interim bar (s30 (1)(a))

1. The offence that caused the risk assessment was the applicant's assault on his then four-month-old son. On the evidence before us, we accept that the applicant struck his son with what he thought was a nappy but which he later discovered was a jumpsuit with press studs that had caused bruising to the child. The Tribunal recognises the seriousness of the offence in that it involved the physical assault of an infant. The Tribunal accepts, however, that the offence occurred in the context of those stressors recognised by the police officers to be 'a tragic set of circumstances leading up to this event' which included an accidental pregnancy, a wife suffering from post-natal depression', the applicant's self-discharge from the army and his obtaining of night work in order to assist his wife during the day.
2. We note that the infant also sustained a fracture to the skull on the day of the assault. For the reasons set out above, we are not satisfied that the applicant deliberately caused this injury to the baby's head and accept his evidence that, on that day, the baby car capsule had fallen from the washing machine with the baby still inside it.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b)

1. The trigger offence, namely the 1991 assault of the applicant's son, occurred 26 years ago.
2. In 1993, the applicant pleaded guilty to assaulting his ex-wife and was placed on a good behaviour bond for a period of two years. Although a facts sheet is contained on file, it is unclear whether it is an agreed fact sheets on the basis of which the applicant pleaded guilty. According to advice received from the police, it would appear that all records for the offence have since been destroyed.
3. For the reasons set out above, the Tribunal accepts that after his ex-wife had threatened to put their children in foster care, the applicant assaulted his ex-wife by grabbing her by the throat, was verbally abusive to her and made contact with the left side of her face. On the basis of the applicant's evidence and a 1993 report by the psychologist Carol Boland, we accept that the applicant regretted his actions at the time, and continues to regret them today.
4. Whilst there is evidence before us to indicate that the applicant breached his Community Service Order in 1993, we cannot be satisfied that the applicant was ever made aware of this. Given that 24 years has since passed without the applicant coming to the adverse attention of the authorities, we give little weight to the breach.
5. In light of notes taken in 1991 during counselling sessions with the applicant, the details of which are provided above, the Tribunal accepts that the applicant and his ex-wife had a volatile relationship involving some aggression by the applicant. We accept the evidence of the applicant and his daughter that the relationship between the applicant and his ex-wife is now good, that they get along well and discuss issues relating to the children.
6. For the reasons set out above, we give no weight to the COPS event records in relation to the applicant's supervision of his son in 2005 or to o the allegation of an altercation over maintenance payments.
7. For the reasons set out above, we draw no adverse inference in relation to alleged sexualised behaviour by the applicant's son in 1995.
8. On the evidence before us, it is clear that the applicant has not come to the adverse attention of the authorities since the mid 1990s and that he was the sole carer of his son for the majority of his son's childhood. He was also the sole carer of his daughter from the time she was 18 months until she was ten years old and again when she returned to live with the applicant for her high school years. We give weight to the positive parenting role the applicant had for his daughter, as set our in her statement.
9. We accept that the applicant retrained in naturopathy and traditional medicine until he became ill in 2011.

The age of the person at the time the matters occurred (s30(1)(c))

1. The applicant was 33 years old at the time of the trigger offence.

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 (s30(1)(d))

1. The applicant's son was four and a half months old at the time of the assault. We accept that he was vulnerable due to his age and because he was non-verbal and dependant on the applicant for his care and protection.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e))

1. There is 32 years difference between the applicant and his son.

Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f))

1. The victim was the applicant's infant child. He was aware of the child's age.

The person's present age (s30(1)(g))

1. The applicant is 59 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s30(1)(h))

1. The applicant has two convictions for assault and has not come to the adverse attention of the authorities since the mid 1990s.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30(1)(i))

1. While the impact on children of any repetition of the offences would be serious, on the evidence before us, we find that the likelihood of repetition is very low.
2. In making this finding, we give weight to Dr Lennings' findings that the applicant has lived a pro-social life without any ongoing difficulties since 1993 and that he currently falls into the very lowest risk in regards to any concern about his risk of harm to children. We give weight to the factor that age has been found to confer a protective factor upon risk and accept Dr Lennings' opinion that, given that the applicant is now 59 years old, it is highly unlikely that there would be any harm in his behaviour towards children.

Any information given by the applicant in, or in relation to, the application (s30(1)(j))

1. It is not disputed that the applicant was entrusted with the sole care of his two children after the trigger offence after the conviction for assault on his wife and after the involvement of the Department of Family and Community Services.

Any other matters that the Children's Guardian considers necessary (s30(1)(k))

1. We have considered the applicant's counselling sessions in 1991 and, as set out above, agree that at this time, the applicant and his now ex-wife had a volatile relationship marked by some aggression. On the evidence before us, however, we are satisfied that the applicant has not come to the adverse attention of the authorities since 1995.
2. For the reasons set out above, in light of the scarcity of evidence before us, we give little weigh to the applicant's apparent breach of the terms of his good behaviour bond in relation to the 1991 assault.

Conclusion on section 30(1) matters

1. For the following reasons, we find that the applicant does not pose a real and appreciable risk to the safety of children.
2. The 1991 assault by the applicant on his infant son, which was serious, occurred in the context of enormous stressors for the applicant, which have long since abated.
3. The 1993 assault of the applicant's ex-wife was also serious and occurred in the context of her threat to put their children in foster care. In light of the lack of evidence before us, we give little weight to the other allegations of physical aggression by the applicant around this time. We accept the evidence that the applicant had poor impulse control during what was a particularly stressful time for the family, but accept the evidence of Dr Lennings that since the time, he has learnt to manage this behaviour.
4. Our jurisdiction is protective and not punitive in nature and we accept the evidence of Dr Lennings that, despite his earlier convictions, the applicant now falls into the very lowest risk in regards to any concern about his risk of harm to children, a risk which is therefore not greater than a person in the general population.
5. We have also given weight to the statement of the applicant's daughter, who was not required for cross-examination by the Children's Guardian, and who confirms that her father was the primary carer for her and for her brother for the majority of their childhood.
6. On the evidence before us, and for the reasons set out above, we are satisfied that the applicant does not pose a real and appreciable risk to children.

Reasonable person & public interest test - s30 (1A)

1. Section 30 (1A) of the Act applies to this application. It provides that the Tribunal may not make an order which has the effect of enabling the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that: 1. 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 child-related work, and 2. it is in the public interest to make such an order

Reasonable person test

1. The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires: the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the 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 over-optimistic attempt to facilitate rehabilitation.
2. In order to properly consider this test, a "reasonable person" would need know about the disqualifying offence, the circumstances surrounding the offence, the applicant's entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him.
3. Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work. In this regard, the reasonable person would note the circumstances surrounding the offending behaviour in 1991 and 1993 and would accept that the applicant now has insight into his behaviour and the circumstances that led to it, which has enabled him to develop strategies to ensure such behaviour does not re-occur. The reasonable person would give weight both to the applicant's pro-social behaviour over the past twenty-four years and to the findings of Dr Lennings that the applicant's risk to the safety of children is at the lowest level, and is therefore not greater than a person in the general population.

Public interest

1. In Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143, at [24]-[26] the Victorian Court of Appeal considered the meaning of the term "public interest" in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said: "[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]: 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. [25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in 'protecting children from sexual or physical harm'. The Act does this by 'ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body'. [26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest."
2. On the evidence before us, we are not satisfied that the applicant poses a risk to children.
3. Having regard to material before us, and giving particular regard to the applicant's pro-social behaviour for over twenty years, including as the sole carer for his children, we are satisfied that it is in the public interest to make the orders sought.

ORDERS 1. The decision of the Children's Guardian dated 16 November 2016 to refuse the applicant's working with children check clearance is set aside. 2. In substitution for that decision, the following decision is made: The applicant is granted a working with children check clearance.

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: 25 October 2017