DCQ v Children's Guardian - [2017] NSWCATAD 305 - NSWCATAD 2017 case summary — Zoe

NSWNSWCATAD

DCQ v Children's Guardian

[2017] NSWCATAD 305

NCAT Administrative and Equal Opportunity|2017-09-27|Before: Prof P, Foreman AM

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2017-09-27

Before

Prof P, Foreman AM

Source

Original judgment source is linked above.

Judgment (39 paragraphs)

[1]

Introduction

By application filed 6 June 2017, the applicant seeks a review of a decision of 28 April 2017 of the respondent, the Children's Guardian, to refuse to grant him a Working with Children Check Clearance (WWCCC)(the Decision).
The respondent opposes the application and the grant of a WWCCC.
For the reasons that follow, the Tribunal has decided to affirm the decision of the respondent.
Due to the nature of the proceedings, the Tribunal made an order under s 64 of the Civil and Administrative Tribunal Act 2013 prohibiting publication or broadcasting of any information that would identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. Under this order the applicant, his family and other witnesses and persons including former partners of the applicant and their children, have also been given pseudonyms.

[2]

The documents

Prior to the hearing, the applicant filed a bundle of documents including a large number of photographs. His documents included letters of support from his daughter (who is 29 years old), and his son (who is 25 years old), his son's fiancée and a family friend. The photographs depict the applicant enjoying the company of his family and friends. The applicant brought to the hearing a number of photo boards containing a very large number of photographs depicting similar scenes. At the hearing, the applicant tendered further supportive material from a former employer, and a former girlfriend in the period 1996 to 2001.

[4]

The Decision

On 21 December 2016, the respondent completed its recommendation that a Notice of Proposed Refusal of a WWCCC be issued to the applicant pursuant to s 19 of the Act. In coming to that recommendation, the respondent took into account, in summary: 1. The 20 February 2007 incident; 2. The applicant's "AVO history" in that he had been a defendant in four final AVOs in the period 2006 to 2013; 3. An incident which occurred in August 2014; 4. The four incidents involving CD; 5. The applicant's drink driving convictions.
The respondent concluded: The information gathered during the risk assessment process indicates that violence and alcohol misuse are the two main risk factors. The applicant's unresolved anger management issues have led to him being convicted of one child-related violence offence and identified as an alleged perpetrator of domestic violence on four other occasions. The applicant's alcohol misuse has been identified as a contributing factor on several of these occasions. Furthermore the applicant was disqualified from driving following drink-driving conviction … directly related to the applicant's employment where [he] is responsible for passenger safety while working as a coach driver. To this point, the applicant has been the subject of alcohol-related work complaints in August 2015 and August 2016. There is no information before the Children's Guardian to demonstrate that the applicant has addressed his behavioural issues. There is also no information to demonstrate that the applicant has insight into his actions or support structures that would prevent further episodes of violence or alcohol misuse. Without this information the risks associated with the applicant's behaviour weigh in favour of him posing a risk to the safety of children. While these concerns remain it is recommended that the applicant is refused a WWCC clearance.
After the applicant received the s 19 Notice, he advised the respondent that he wished to obtain legal advice. His solicitor provided written submissions dated 7 February 2017. His solicitor made a number of submissions including the following:

First, the court outcome in respect of the 20 February 2007 incident, (namely no conviction recorded and the imposition of a good behaviour bond for 12 months) indicates that the applicant was given the lowest criminal penalty available, and demonstrates the trivial and non-serious nature of the incident. In its recommendation completed 2 March 2017 to refuse the applicant a WWCCC, the respondent stated that this physical assault of a child was a serious offence and that the applicant's inability to manage his actions and emotions in a manner that did not result in violence against a much younger child is concerning and serious.
Secondly, that the 20 February 2007 incident was an isolated one that occurred 10 years ago. The respondent acknowledged in its recommendation that there has been no repetition of violence against a child since that time, but that the applicant had been charged for a number of allegedly violent offences since that time, including one incident in the presence of a child.
Thirdly, the assault charges the subject of the 18 May 2013 incident should not be afforded any weight as they were dismissed, and therefore untested, unproven, and that the applicant is innocent. In its recommendation, the respondent acknowledged that these charges were dismissed, but considered that that there was sufficient information before it to demonstrate that on balance the applicant's conduct was concerning. This information included the number of allegations, the reporting sightings of injuries by the police and the issuing of Apprehended Violence Orders (AVOs/ADVOs). It was also noted that in the 18 May 2013 incident, the applicant was alleged to have assaulted his partner in the presence of her children then aged five and seven years.
Fourthly, the applicant's convictions and charges do not indicate that he had unresolved anger management issues, as the only proven matter on record was the common assault charges the subject of the 20 February 2007 incident. The respondent disagreed, stating that: …[I]n addition to the common assault from 2007 [the 20 February 2007 incident], the applicant came to the attention of police in December 2012 [the 22 December 2012 incident], May 2013 [the 18 May 2013 incident], August 2014, and February 2015 [the 20 February 2015 incident] for domestic violence related matters, demonstrating a pattern of concerning behaviour or conduct. The applicant was also named as the defendant in four final AVOs between 2006 and 2013 indicating that the threshold had been met to justify that the victim and her children were in need of statutory protection. This alleged repetition of violence demonstrates that the applicant may have the capacity to act in a harmful way towards his partner in the presence of her children which indicates that risk is present.

On 2 March 2017, the respondent completed its recommendation that the applicant be refused a WWCCC. It concluded that the applicant's solicitor's submissions highlighted the difference between the legal system and the field of child protection. While it was acknowledged that the majority of the allegations against the applicant had been dismissed, the number of charges, reports and AVOs was sufficient to demonstrate a concerning pattern of allegations in relation to the applicant's conduct.

[6]

The 20 February 2007 incident

The applicant was charged with two counts of common assault pursuant to s 61 of the Crimes Act 1900. At the time of the incident, the applicant was living with his partner AB, her eight year old son EF and her 11 year old daughter IJ. The Facts Sheet relevantly states: At about 5.55pm on the 20 February 2007, the victim [AB] was preparing to go to parent/teacher interviews with the children. The accused has walked in and an argument has occurred about the accused drinking and not being home on time to look after the children. The victim walked out onto the balcony to get some space between her and the accused. At this time the children have come up from the garage and were with the victim. The accused has walked out onto the balcony and the victim has then went back inside with the children. The victim's son [EF] has then attempted to close the sliding door. The accused has put his hand against the door to stop [EF] closing the door. The accused threatened to kick the victim [EF] to the buttocks. The accused has then pushed the door open, grabbed victim [EF] from behind and kicked him three times to the buttocks and upper leg. This caused immediate pain to the victim [EF]. The victim has then run out to the accused and pushed him away from her son. The accused has then grabbed the victim from behind by her upper arms and pushed her face first into the lounge.
Included in the police brief were a number of statements including a statement of AB dated 20 February 2007. She stated that her son attempted to close the door to the balcony so the applicant would stop arguing with her. She stated that the applicant grabbed the door and opened it, and that he then walked into the apartment and kicked EF three times to the buttock area which made EF cry. EF was screaming out "ow it hurts". AB states that she pushed the applicant away and said "Don't hit my son". AB states that the applicant then grabbed both of her upper arms from behind and pulled them to her back and pushed her head into the lounge. Meanwhile her daughter IJ, who observed the incident, was screaming "I'm calling the police, I'm calling the police".
EF states in his statement that he could hear his mother and the applicant yelling at each other. When he tried to close the door to the balcony the applicant put his hand against the edge of the sliding door and said to [EF] "you move your body or I'll come in there and kick your arse". The applicant then pushed the door open and grabbed him on the upper arms so he could move them and kicked his bottom three times. He says he felt pain straight away, and when the applicant kicked him the third time he yelled as loud as he could "Mum". He says that his mother came over and said "get away from him, don't ever touch again."
EF's sister IJ provided a statement to similar effect.
The applicant pleaded guilty to both offences. In relation to the common assault charge against EF, the Local Court found the offence proven, but pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 dismissed the charge and discharged the applicant on condition that he enter into a good behaviour bond for 12 months and not assault, molest, harass or otherwise interfere with EF or incite any third person to do so.
In relation to the common assault charge against AB, the Local Court found the offence proven, but pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 dismissed the charge.
In a letter sent by the applicant to the Department of Education and Training dated 8 June 2011, the applicant referred to this incident. He states that he was "guilty of toeing [EF] up the bum with a bare foot". He described this as "within the boundaries of lawful chastisement".

[8]

The 22 December 2012 incident

The Facts Sheet states that on 27 November 2012 an ADVO had been obtained and then relevantly states: Offence 1 - breach ADVO At about 5 PM on Sunday 23 December 2012, the accused…and the victim, [CD], were in a verbal argument about personal issues at the accused's apartment at…Both parties had been consuming alcoholic drinks during the afternoon and both parties were somewhat affected by alcohol Offence 2 - common assault At this point the victim has attempted to remove her picture frame off the wall when the accused has lunged towards her and punched her in the head and face. The victim has fallen forwards into the lounge room and felt another thump to her right cheekbone and another to her left cheek. The victim has managed to lift both her arms up to protect herself from further assault. The victim yelled "please stop". The accused replied "you make me do these things". The victim was at this point crouching over trying to protect herself. The victim was very dazed and confused and was assessing her injuries. She noticed out of the corner of her eye the accused rush again towards her and strike her twice in the left arms between her shoulder and elbow then another to her left collarbone. At this point being afraid and confused the victim has decided to reside at the home of the accused until the afternoon of 25 December as she was afraid of what the accused would do if she attempted to leave. The afternoon of the 25th the accused and victim have gone to [identifier deleted] camping. About 30 minutes after arriving the accused got into his vehicle and abandoned the victim at the location. The victim contacted her mother who picked her up shortly after. Once in the vehicle the victim's mother has noticed bruises over her arms. The victim advised her mother about being assaulted by the accused. The victim's mother drove the victim to Coffs Harbour police station and reported the matter. Victim would not provide a statement at that time as she did not want the accused to be arrested and taken to jail.
The police brief included a statement of the applicant signed by him and dated 18 January 2013. The applicant relevantly states: About a week before Christmas [CD] and I spent the afternoon together. We went to the [identifier deleted] fishing club for a few hours. We then came back to my place. [CD] continued to drink to the point where she became severely affected. She started to accuse me of having an affair with her friend. She then said, I've had enough of my life. I want to kill myself". At that time she was standing in the living area. She started to walk into my kitchen. I knew that she was wanting to get to my kitchen knives, because that is exactly what she has tried to do before. I stood in front of her and grabbed hold of the upper arms in an attempt to stop her getting into the kitchen. I said, "Don't be stupid." She said "Let me go". She then tried to break free. I wouldn't let her go because I knew if I did she would have got a knife from the kitchen and stabbed herself. When she knew I would not let go, she slumped to the floor and broke down and cried. At that stage I did my best to try and console her. She seemed to settle down to the point where she did not want to kill herself. I stayed with her and supported and comforted her that night.
Included in the police materials is a statement of CD signed by her on 28 December 2012. She gives a different account of this incident, which is consistent with what appears in the Facts Sheet summarised above.
A statement of CD's mother dated 28 December 2012 corroborates CD's version of events. Also included in the police materials were 11 photographs of CD dated 25 December 2012 showing visible bruising to her left neck and shoulder, upper chest, left upper arm, and swelling to her left jaw line and her right jaw line.

[9]

The 18 May 2013 incident

The applicant was charged with three offences in respect of this incident: namely contravening an ADVO pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007; assault occasioning actual bodily harm (s 59(1) of the Crimes Act) and common assault (s 61 of the Crimes Act). These charges relate to an event in the applicant's car when travelling with CD and her two children, a son GH and a daughter OP, then aged 6 and 7 years respectively. The charges were laid but later dismissed by the Court when the prosecution offered no evidence.
The Facts Sheet relevantly states: At about 5 PM on Saturday, 18 May 2013, the victim and her two children and the accused went to the [identifier deleted] Bowling Club for dinner. There they consumed several alcoholic drinks consisting of about 3 middies of V.B. with their meal. At 7 PM they left the club to return home. Along the way they were discussing something, not arguing or raising their voices when the victim states, "the next thing he punched me to the head". The victim felt immediate pain and the children commenced to cry. The accused then yelled at them to "shut up". When they arrived home the accused got out of the car got into his own car saying "that's it, I'm out of here". He then drove off. The victim contacted her father and advised him of what occurred before he then contacted the police. Police arrived a short time later and spoke to the victim. The victim was rubbing the right side of her head near the temple and the police could see it was raised and slightly red. The victim then made a statement outlining the allegation. As police were about to leave they heard a car pull up outside and the horn sound. A short time later the front door opened and the accused walked in saying "Right, I've had enough of this". The accused had his arms up and was raising his voice. The children, who were in the lounge room became upset and commenced to cry. Police told the accused to calm down and advised him of the allegations to which he replied "she punched me, so I punched her". He was placed under arrest at which time he wanted to fight both arresting police. He put up a brief struggle before being overpowered and handcuffed. He was taken to the police vehicle and then conveyed to the Coffs Harbour police station. . . .The accused was cautioned and taken to an interview room where he participated in an ERISP. The accused denied stating "she punched me so I punched her". He denied attempting to fight Police. He denied assaulting the victim however stated she had asked to box with him the evening before and it was during this consented boxing match that she may have received an injury to her head. He denied punching her in the head during this boxing match however added that this morning in bed she had told him about the bruising and swelling and he felt it. Yet it was about above her right ear. The accused stated he had consumed five middies of V.B. beer from 5pm to 7pm until, in the company of the victim and whilst driving home from the ---- Bowling Club they were having a dispute and the victim reached across and put her hand over his face blocking his vision while he was driving. He stated he grabbed her hand and removed it from his face, that is the only time he touched her. In relation to the A.V.O. the accused stated he has no A.V.O. against him as it is on the 12/4/13 it was dismissed. When questioned about this point the accused stated "[CD] never turnED up to court and the assault was dismissed and the A.V.O. was dismissed". The accused was informed that the A.V.O. is still in existence and what the conditions were. He again stated that the magistrate dismissed the A.V.O. on the 12/4/13. The accused was then charged with the present matters
On the day of the incident, CD provided an account to police and signed a notebook statement to the effect that the family went to the Bowling Club for dinner and during the drive home an argument developed with the applicant punching her in the head while he was driving. The children, who were in the back seat, began to cry. The applicant drove CD and the children to the house and drove away. CD called the police and they attended. Shortly after police attended, the applicant returned home and yelled out "Right I've had enough of this" and behaved in an aggressive manner, causing the children again to become upset and cry. The Police recorded in the COPS entry (and in the facts sheet) that the applicant admitted that "She punched me, so I punched her" and then attempted to fight police, was restrained and then arrested. This admission is also contained in the statement of Senior Constable Phillips and of Constable Bajanov, who both attended the house on the day and prepared statements.
The applicant provided a record of interview to police. The applicant denied the assault and asserted that any lump to CD's head was the result of prior boxing in the days previously. He said that he only pushed CD's hand away from him and did not otherwise assault her.
Also included in the police materials were three photographs of CD dated 18 May 2013 showing a lump near CD's right temple.
In January 2013, the applicant provided his own statement to police. He explained the incident by reference to CD's suicidal threats and overuse of alcohol.
In May 2013, the police were provided with a statement of CD in regard to the incident. The statement is different to the police notebook statement signed by CD on the day of the incident. In the later statement, CD states that the applicant pushed her hands away on three occasions and on the third occasion he struck her head with his hand. CD also states that there was a lump on her head but she sustained this from boxing with the applicant some days prior.

[12]

The 20 February 2007 incident

The applicant said that he "toed [EF] up the bum" on 20 February 2007, and that he also "toed [EF] up the bum" on the previous Saturday (namely Saturday 17 February 2007). The applicant described his conduct as "a reminder" to EF to behave, commenting that it was not as if he was wearing steel-capped boots. The applicant said that the incident was explicable by reason of EF's mother AB being bi-polar, and the applicant having a "brain snap" in response to her behaviour. The applicant said that EF tried to lock him on the balcony, and that he warned EF three times that he would "toe him up the bum" if he did not let go of the door. As EF refused to do so, the applicant "toed him up the bum".
In cross-examination, the applicant described the incident as "like a mother smacking her kids". He said that there were different ways to discipline kids, and that this was a convenient way to do it.
The applicant agreed that he pleaded guilty to the offence of assaulting both AB and EF. However, he said that he misunderstood what he was doing. Counsel for the respondent asked him questions about the Facts Sheet, in particular asking the applicant if he agreed that the Facts Sheet stated that "the accused then pushed open the door, grabbed the victim EF from behind and kicked him three times to the buttocks and upper leg". The applicant said that he would not read the Facts Sheet and that counsel could rely on whatever "rubbish" she liked. He denied having read the Facts Sheet on the day of the court hearing and said that he would have disputed it if he had. When questioned about this by counsel, (whom he addressed as "darling"), he told her that he was just telling her the facts. He also said that, despite pleading guilty to both charges, he did not accept that he was guilty "and never will". When asked if he was seriously saying that he did not understand he was pleading guilty at the time, his response was to say that he was at the Tribunal hearing "to tell the bloody truth".
The applicant agreed that he warned EF that he would kick him, and agreed that he formed the intention to kick him. The applicant said that he had also done so on the previous Saturday. When asked if there were other ways he could have controlled the situation, the applicant said that "everyone is brought up in different ways and the way I used is as it happened to me". He agreed that his acts constituted an assault, and were not acceptable in today's society. He said that when he kicked EF (once) in the buttocks this "was a form of discipline". He claimed that EF told him years later on the beach that the applicant had not hurt him.
When asked if he considered his conduct to be unlawful and unacceptable, he said that "today's society does not accept it, we have a 'do-gooder' society, kids are filled up with Ritalin, the kids are on ice".
He agreed that eleven year old IJ was present during this incident. He denied that IJ would have been scared by the incident.
When asked whether AB was upset because he had kicked her son, the applicant said that "she was upset because I called her Dad a pisshead". When asked whether EF stated that he was scared that he would hurt his mother, the applicant said that that was "a typical police line".
The applicant explained that AB, who was four inches taller than him and very fit, came to him in a rage. He grabbed her arm and manipulated her onto the lounge. He did not throw her onto the lounge as was asserted by the police, nor did he kick EF three times as was stated in the evidence.
The applicant said that he had been brought up with a "iron fist, and used to get beaten with an electric cord". The applicant was bullied at school and his father made him learn boxing for self-defence. He told the Tribunal that he was told that these were the skills he needed to get through life. He said that he did not regret his upbringing. As to "toeing [EF] up the butt", he said that there was no school curriculum on how to bring up kids, and that families had to use their own initiative. He said that his problems with AB were as a result of AB being bipolar.
He denied that he kicked eight year old EF three times, as alleged in the police statements, but agreed that he kicked EF once. When asked if he was saying that EF's account was incorrect, the applicant said that the police wrote the statement.
Counsel asked him whether he had read his interview with the police. He said that he might have, but could not remember. He said that he did not care what was in the police notes, as he does not respect what the police write. When counsel put to him that he told the police that he told them that he had not kicked EF at all, he agreed that he lied "initially". When asked whether he was trying to explain this incident as being AB's fault due to her bipolarity, the applicant said that he was advised to do so by another policeman. When counsel put to him that he denied to the police that the incident constituted an assault, the applicant asked "but how many times was I assaulted?"
Counsel explored with the applicant at some length about his present attitude to disciplining children, and asked him about his description to the Department of Education and Training of the incident as one of "lawful chastisement". He said that "I am not going out today and toe someone up the butt, with today's society, I could not". The applicant explained that he could see what kids are doing (that is, drugs), when brought up with a "softly softly approach" by "do-gooders". Counsel asked him whether a lack of appropriate discipline contributed to that. He replied: Absolutely. I listen to John Laws, we really need to bring the cane back into the schools. I would like to see some form of discipline bought into schools, the cane never hurt me, a toe up to the bum never hurt me.
In conclusion, counsel asked him whether he thought it was appropriate to use physical violence on an 8 year old. He replied that "I didn't consider it to be physical violence - they're fancy words - he suffered no injury".

[14]

The 22 December 2012 incident

The applicant gave little evidence about this incident in his oral evidence. He said that the evidence of the police was untested and unchallenged, and that the police notes contained "glaring things" (that is errors), with one officer suggesting that he punched CD after she had punched him. The applicant said that he used to box with CD, and that she had been throwing punches around, including "haymakers". Afterwards, she said that she had a bruise, but she never complained thorough the night, or at all.
In cross-examination, the applicant agreed that he had had an argument with CD. He said that she was about to wreck a photograph of the applicant with his family, including his children. When asked whether there was an AVO in place at the time which prevented him from seeing her, he replied "There's so much there, I don't know". However, he agreed that he was charged with breaching the AVO. He agreed that he left bruises on CD when she attempted to remove the photograph.
Counsel took him to CD's statement of 28 December 2012 which records the following: 6 I took a step into the kitchen to go get my picture of [the applicant] and I that was hanging in my frame on the wall and went to take it off. As soon as I stepped into the kitchen until I thump in the back of my head at the base of my head. I fell forward into the lounge room and felt another thump to my right cheekbone and another to my left cheek. I was in shock, I thought [the applicant] was going to kill me because this felt worse than the last time he hit me. I raised both my hands to my face to protect my face I said - Please stop. He said - You make me do these things and he walked to the left over to the blinds in the lounge room which is next to the kitchen and closed the blinds. He said I don't want the neighbours to see coz they'll call the police and I'll go to jail. 7 I crouched down to the ground as I still afraid still holding my face. I was still in shock and my face felt swollen. 8 I saw out of the corner of my eye [the applicant] rushed back towards me on my left with both fists raised. I felt two punches on my left arm between my shoulder and elbow then another to my left collarbone. I said - Please stop. He said - We need to go for a walk to the beach now. I said - No. Leave me alone. He said - I'm taking your phone off so you don't ring your father or the police.
The applicant described CD's account of events as "total bullshit", and "crap".
In cross-examination, Ms Stevens noted that CD's version of events was supported by a statement of her mother, who said that she saw bruising on CD's upper left arm, and on her left cheek where there was a large amount swelling.
The applicant agreed that he pleaded not guilty to the two charges, and that he prepared a statement for the proceedings. Counsel put to him that his statement did not say anything about a picture frame, and that it referred to knives being in the kitchen, this account being set out in par [26] above. Counsel suggested to him that the two accounts were inconsistent, and asked which one was true. The applicant said that he was talking about two different events. He also said that "my mind is choked, it is full of rubbish" and that "there is so much stuff in my head". Counsel suggested to the applicant that he was trying to evade her questions. He said he did not care what dates counsel came up with.
Counsel suggested to the applicant that CD's allegations were in fact true, and that he did punch her in the back of the head. He responded that "I have certainly left bruises on her arms on two occasions".
Counsel suggested to the applicant that even on his own version it was inappropriate to grab CD with such force as to leave bruises. He said "she wasn't moving, she was wrecking, she definitely was not going to wreck my photos". The applicant confirmed that at the time, CD's son GH was present, but said that he had no idea and could not recall whether GH observed what happened. When asked if he had been exposed to this conduct, the applicant said "young [GH] was punching my nuts, he was exposed to his mother's behaviour every week". When asked if this was a risk to GH and his sibling, the applicant said "I think they've seen risk from their mother every day".
Finally, counsel asked the applicant what he would do in the future. He said that "when I ask people what they would do they don't have an answer".

[15]

The 18 May 2013 incident

In his oral evidence, the applicant explained that CD put her hand across his face three times while he was driving. He said to her "what the fuck are you doing, you're being absolutely stupid". Three times he pushed her away. The applicant confirmed that her children were in the car, and did cry, but that they were not hysterical, as claimed in the police statements. When they returned home CD called the police who came and arrested him. One of the arresting officers twisted his arm up his back and said that he was arrested for resisting arrest.
The applicant said that the children got more upset at this than the previous conduct. The applicant said that what appears in the various statements were "fancy words written by police to appease what they did to him". The applicant reminded the Tribunal that he was taught to fight as a kid. He handled himself very admirably during this incident, and denied that he clenched his fist the way it was described. He could have "arse overheaded him like a bag of salt".
By this time, the applicant was growing restless. Ms Stevens reminded the applicant that CD had made allegations about his conduct when driving home from a club. The applicant described the allegations as "a load of bullshit". He said that "I am not prepared to talk anymore about these allegations", as they were untested in a court of law. He said that the police notes of CD's statement appearing in the police note book was written by the police, and signed by CD while intoxicated. He said that she refuted that version of events when she was sober a few days later.
The applicant agreed that he was charged with assault, and that a statement of Constable Bajanov stated that he had seen swelling on CD's head just near her right temple. However, the applicant said that Constable Bajanov's statement was false. He said that the statements of Constable Bajanov that: 14. Leading Senior Constable PHILLIPS said "[CD] has told me you punched her in the head"
and 15. The accused said "She punched me, so I punched her. I've had enough of this shit, I'm taking you cunts on"
were lies.
Ms Stevens then took the applicant to his record of interview, in which the police told him that CD had accused him of punching her. The applicant denied the allegation stating that he did not hurt her at all and that the lump to her head had been sustained when the two were boxing the previous evening. When counsel put to the applicant that CD had signed the police notebook attesting to him punching her, the applicant claimed that she had signed it while intoxicated. The applicant denied punching CD in the head, and denied punching her at all. When asked whether she sustained an injury he said that he had "no idea". This is not credible since he knew about the lump on her head which he says she may have sustained through boxing.
We note that during the record of interview the applicant admitted that during the car incident the children were upset and that he had yelled at them to "shut up". The record of interview also records the applicant as laughing during the interview, and that CD being named as a person in need of protection was "a joke". This was similar to his behaviour at times during the hearing, which we comment on below.
Counsel then took him to a later statement signed by CD. The statement was not dated, and counsel suggested that it was signed after 20 May 2013, counsel could put this suggestion to him as the statement referred to the events alleged to have occurred on that day. Even when the statement had clearly been prepared after that date the applicant would not agree. Be that as it may, counsel noted that the statement contained information that was not in CD's earlier statement, and did include information about the applicant. He explained this by stating that his focus at the time was on his treatment by the police (which he described as "disgusting"), and that CD prepared the second statement "When she realised that the kids were more upset about the way I was treated - the kids cried more dramatically because of the manner I was treated".
Counsel asked the applicant, who had said that CD signed the statement in front of him, whether he had been involved in its drafting, noting that CD's letter was is similar in tone, style, language and form as the applicant's own statement to police. The applicant said that he did not remember and would not assume anything so much later. He said that CD looked at his statement. Counsel asked him what he meant by that and his response was "I don't care what the Tribunal does at this stage". His cross-examination on this incident concluded with the following exchange: Q Did you assist [CD] to draft this statement to put your version of events in her statement? A I don't know what she did and that's all I've got to say Q You encouraged [CD] to write this statement? A I don't know Q It's a significant statement - A Of course I would talk to her about it. I said Q Did you draft this? A I don't know Q Is it possible? A I don't know, if she asked me as she was writing it. Even if I did, who cares, let's assume what happened. At the end of the day who cares?
In our view, this evidence amounts to the applicant not denying that he influenced CD to sign her second statement.

[22]

Assessment of the applicant's evidence and findings of fact

The applicant presented as a physically confident man. He described himself as fit, and said that he could do 50 to 60 push-ups in a session. As noted above, he has boxed since a young age, and has used his boxing skills and physicality to protect himself and, regrettably, to harm others (such as the victim in the 1986 assault, AB's eight year old son EF, and - as we will find - CD). He said that he had not had a drink since 27 March 2017, although he did not explain why this was the case, save that he liked to be fit.
The applicant clearly presented as someone who did not agree with contemporary approaches to the physical discipline of children (that is, that physical punishment is not acceptable). He repeatedly referred to his own childhood, his physical punishment, and to the views expressed by "do-gooders". His view was that today's teenagers were "soft".
In his appearance before us, the applicant had an ill-disciplined approach with a capacity for inappropriate and undisciplined behavior and presentation, repeatedly referring to counsel's suggestions as "lies", "crap", and "bullshit", He indicated that he did not care about the evidence which counsel read to him, or about counsel's submissions or even what the Tribunal may decide to do. As he said at one point, "if that's what we are here today for, it's a load of crap".
The Tribunal was left with the impression that the applicant had no real insight into the circumstances of the offences the subject of the trigger incident, offences to which he pleaded guilty. As we have noted, the applicant told us that he did not accept that he was guilty and never would.
The applicant also repeatedly blamed others for all incidents: AB was bipolar, CD was an alcoholic, eight year EF closed the door on his hand, and five year old GH punched him. He minimised the impact of his behaviour on others, stating that eight year old EF would not have been frightened by his conduct, that eleven year old IJ would not have been distressed at him kicking EF and yelling at her mother; and that five and six year old GH and OP were more upset because of the manner in which he was treated than they were by him punching their mother.
He also gave answers which were on their face not credible, and refused to answer questions knowing that when confronted with unpalatable truths, such as having provided differing accounts of the 18 May 2013 incident, or that he was in a position to influence CD when she provided a second statement in relation to the same incident.
We find that the applicant has a tendency for aggressive acts, and aggressive speech, and these amount to what the respondent described as "anger management issues".
As we have noted above, the applicant appeared from time to time to be enjoying himself, laughing at suggestions put to him by Ms Stevens and being smilingly smug.
Regrettably, given the applicant's concession that he has lied to police in the past, and the unbelievable nature of some of the evidence and submissions he made to us, we find that the applicant is prepared to give any evidence which simply suited his purposes, even if patently untrue. The Tribunal does not consider it can accept the applicant's uncorroborated version of events.
In those circumstances, the Tribunal is comfortably satisfied (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34) of the following matters, and makes the following relevant findings.
First, we find that the 20 February 2007 incident occurred, as set out in the Facts Sheet at par [17]. We find that the applicant kicked eight year old EF in the presence of his mother AB and his eleven year old sister IJ. We have come to this conclusion, on the balance of probabilities, based on the applicant's guilty plea and his own evidence to us during the hearing (namely that he had in fact warned EF that he would kick him, that he formed the intention to kick him and did in fact kick him).
We also find that on 20 February 2007, the applicant assaulted AB. We have come to this conclusion, on the balance of probabilities, based on the applicant's guilty plea, that is, the applicant grabbed AB from behind and pushed her face first into the lounge.
We further find on the balance of probabilities that, in addition to kicking eight year old EF three times on 20 February 2007, the applicant also kicked EF on 17 February 2007. We have come to this conclusion based on the applicant's evidence to us during the hearing that he did so.
Secondly, we find that the 23 November 2012 incident occurred, that is that the applicant had an argument with CD in the presence of five year old GH and seven year old OP and pushed five year old GH in such a way as to cause him to cry hysterically. We have come to this conclusion, on the balance of probabilities, and based on the applicant's evidence to us that he had pushed five year old GH on the day. We reject the applicant's evidence that GH did not cry hysterically and was unhurt.
Thirdly, we find, on the balance of probabilities, that the common assault and the breach of the ADVO the subject of the 22 December 2012 incident occurred. In relation to the common assault, we find, on the balance of probabilities, that the applicant punched CD in the head and face as alleged in the Facts Sheet set out at par [17]. We have come to this conclusion based on the materials in the police brief, including the statements of CD and her mother, the photographs of CD, and the applicant's evidence to us summarised above (namely that he had an argument with CD on the day, and that he left bruises on her when she attempted to remove the photograph).
Fourthly, we find on the balance of probabilities that the breach of the ADVO, the assault occasioning actual bodily harm and the common assault the subject of the 18 May 2013 incident occurred. In relation to the assault charges, we find that the applicant punched CD on the right side of her head as alleged in the Facts Sheet set out at par [30]. We further find that this incident occurred in the presence of CD's two children then aged respectively five and six years. We have come to this conclusion based on the materials in the police brief, including the statement of CD, the photographs of CD, and the applicant's evidence to us summarised above (namely that his actions resulted in bruising to CD, and that the two children were present).
Fifthly, we find that the 20 February 2015 incident occurred. We find on the balance of probabilities, and based on the statements of CD and the applicant's evidence to us summarised above, that the applicant grabbed CD's arms and shook her, causing her pain and scaring her.
We further find that in 1986, the applicant assaulted a person, that the charge was proven but no conviction recorded pursuant to (the then) s 556A of the Crimes Act. We have come to this conclusion based on the applicant's criminal history and the applicant's evidence to us summarised above.
We accept the respondent's submission and find that the five incidents referred to in its written submissions indicate that violence and alcohol misuse are risk factors for the applicant. We note that the applicant told the Tribunal that he had not drunk alcohol since March 2017. However, he could not explain what had led him to make take this decision. Given our findings about the applicant's credibility, we place little weight on this assertion. The Tribunal accepts the respondent's submission that the applicant's alcohol misuse has been identified as a contributing factor on several of these occasions. We find that the applicant was disqualified from driving following a drink-driving conviction.
We accept the respondent's submission that unresolved anger management issues have led to the applicant being convicted of one child-related violence offence and identified as an alleged perpetrator of domestic violence on four other occasions. Indeed, manifestations of that anger were repeatedly on display during the hearing.
We accept the respondent's submission that there is no information before us to demonstrate that the applicant has insight into his actions, or support structures in place or undergone any counselling that would prevent further episodes of violence or alcohol misuse. There is substance in the respondent's submission that without this information the risks associated with the applicant's behaviour weigh in favour of him posing a risk to the safety of children.

[23]

Relevant legislation

The starting point for the Tribunal's consideration is s 4 of the Child Protection (Working with Children) Act 2012 (the Act) which 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 the Act.
In determining an application for review, s30 of the Act provides that the Tribunal must consider the following matters: (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 total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (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.
Section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) provides that the Tribunal is required to determine what "the correct and preferable decision is having regard to the material then before it". This includes material which may not have been before the original decision maker: YG v GG v Minister for Community Services [2002] NSWCA 247.
Section 63 of the ADR Act provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the 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.

[24]

Relevant legal principles

The applicable legal principles include the following: 1. The Tribunal is to determine the applicant's application for review by determining what the "correct and preferable decision is having regard to the material then before it": s 63, ADR Act; 2. Neither the applicant nor the respondent bears an onus of proof in relation to the application (BJB v NSW Office of the Children's Guardian [2014] NSWCATAD 111) and the Tribunal must consider all of the evidence, whether adduced by the applicant or the respondent (BMU v Children's Guardian [2015] NSWCATAD 129; 3. The jurisdiction of the Tribunal under s 27 of the Act is protective of children and not punitive of an applicant: BJB at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111; R v Commission for Children and Young People [2002] NSWlRComm 101. 4. The issue for determination is whether the applicant poses a "risk" to the safety of children: ss 18(2) and 27(1) of the Act. The respondent must grant a WWCCC to a person who is subject to a risk assessment unless the respondent is satisfied that the person poses a risk to children (s 18(2)). 5. The Tribunal is to determine, having regard to all the circumstances, whether "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": Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949. In determining the existence of "real and appreciable risk" there must be a link between such "risk" and the safety of children; 6. The paramount consideration is the "safety, welfare and well-being of children and, in particular, protecting them from child abuse": s 4 of the Act. 7. In determining the application, the Tribunal must have regard to the matters set out in ss 15(4) and 30(1) of the Act: BJB at [45]. These matters are in similar terms: see CHB v Children's Guardian [2016] NSWCATAD 214 at [25].
The statutory test in s 18(2) of the Act which we must apply has recently been considered by the Supreme Court in Office of the Children's Guardian v CFW [2016] NSWSC 1406. We think it useful to set out the following paragraphs of the Court's judgment: 13 The test in s 18(2) of the Act requires a decision maker to consider whether a person "poses a risk to the safety of children". "Risk" in this context excludes "fanciful or theoretical risk" and instead requires a decision maker to determine "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": Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]. 14 The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. 15 The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to: "... determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child's welfare." 16 Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]. 17 A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left "open", the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.