DEW 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 a 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, as we have noted above, the applicant's 2016 offending was a "trigger event" that required the respondent to conduct a risk assessment under ss 14 and 15 of the WWC Act. Being satisfied that the applicant posed a risk to the safety of children, 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, (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. (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. Section 36A and s 30(1)(j1) were inserted into the WWC Act by the Child Protection (Working with Children) and other Child Protection Legislation 2016: see Sch 1, cl 11 and 13. Section 36A makes provision for the exchange of working with children check information between the respondent and bodies that administer working with children check clearances in other jurisdictions. Section 36A and 30(1)(j1) commenced on 25 October 2016: see Child Protection (Working with Children) and other Child Protection Legislation, s 2.
16. While the respondent has indicated in her submissions that no information falling within s 36A had been obtained, we doubt whether that provision or s 30(1)(j1) have any application to this review: see Child Protection (Working with Children) and other Child Protection Legislation, Sch 1, cl 17, s 25. As this is not a matter in issue in this application, we have considered it no further.
17. 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 29 September 2017; 2. a further affidavit sworn by him, on 27 October 2017; 3. a small bundle of documents (48 pages) attached to a letter from the applicant's barrister, Mr B Fogarty, dated 13 November 2017. Included in this bundle is a selection of documents the applicant had forwarded to the respondent in the course of her risk assessment and a selection of documents that had been produced pursuant to a summons issued by the Tribunal at the request of the respondent. The produced documents included health records of the applicant; and 4. a letter, dated 16 November 2017, from the applicant's treating psychologist, Mr A.
2. The respondent relied on four bundles of documents as follows: 1. The s 58 documents (i.e. s 58 of the Administrative Decisions Review Act), which included a copy of the respondent's risk assessment report and the information the respondent obtained in the course of her risk assessment. These included a copy of the information provided by the applicant, s 31 responses from the NSW Local Court, Family and Community Services, and Corrective Services. Also included in this bundle was a copy of the applicant's criminal history and his AVO history. We note that a number of the s 31 responses are identified by the respondent as having been received subsequent to the decision that is the subject of review and the date on which the applicant lodged his application for review. We accept that the responses are relevant to this application. However, they were equally relevant to the risk assessment made by the respondent; 2. Two bundles (Volume I and Volume II) of further documents filed on 8 December 2017, which included copies of s 31 responses and documents produced pursuant to a summons issued by the Tribunal at the request of the respondent. The s 31 responses included further responses from the NSW Local Court and the Department of Family and Community Services and responses from other relevant government agencies. The produced material included health records of the applicant, and school records of the applicant's son; and 3. A transcript of the police interview with the applicant on 2 March 2016, concerning the trigger event that occurred the previous day.
3. The applicant and the respondent also filed and served written submissions.
4. The applicant and his treating psychologist gave oral evidence at the hearing and they were both cross-examined by counsel for the respondent, Ms Giacomo.
5. 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. However, it is convenient to briefly set out the circumstances surrounding the "trigger event" which gave rise to the respondent's risk assessment and now the Tribunal.

The "trigger event"

1. The Police Fact Sheet described the circumstances surrounding the offence as follows: "… [On] Wednesday 2 March 2016 an Investigation into the alleged assault of Child 9 year old [name of the applicant's son] was commenced by the Joint Investigation Response Team (JIRT) following a disclosure made by the child to the Principal of [name] School. The disclosure was relative to an assault of the complainant by the accused whilst at the family residence the previous day. About 5pm on Tuesday 01 March 2016, it is alleged that the accused has become angered with the child as the child accidentally spilled water on the mobile telephone of the accused which is used predominantly for work purposes. Immediately following this it is alleged that the accused has punched the complainant to the abdomen on at least five occasions, and in the upper chest area (near his heart) on one occasion which caused the complainant to have difficulties breathing. It is alleged that the accused has struck the child with such force that this had caused the head of the child to come into contact with a wall within the residence in the lounge room. The punching and the impact with the wall caused the child immediate pain and discomfort to the right upper forehead and the abdomen of the child. The Child states that he was crying during the assault and asking the accused to stop. The child states that during the assault the accused yelled "I know how you feel because my father used to do this to me and I don't care". During the assault the sibling of the complainant [the applicant's daughter] who is 17 years of age witnessed the accused hitting the complainant on at least four occasions to the abdomen area with the back of his hand. The complainant was witnessed to be crying during the assault and crouched over. The child was not offered any aid by anyone at this point. The accused has left to go to work about 2 hours after the assault. It is alleged that the child has disclosed the assault to his mother in the absence of the accused. The natural mother of the child [name of the mother] dots stated that she would address it with his father "At the right time". The prosecution would assert that [the mother] was reluctant to raise that violence with the accused as she was fearful of further acts of violence that may be committed against her or the complainant. As result of the assault upon the complainant he has sustained the following injuries; slight bruising and swelling to the upper right forehead and bruising to the abdomen. The bruising around the abdomen is of a red/purple colour and appears circular in appearance and between 15 - 20 centimetres in length. The abdomen of the child is said to have caused the child pain and discomfort. The injuries appear consistent with the version provided by the complainant and his sibling [name of sister]. Upon attending school at [name of school] on Wednesday 2 March 2016 the complainant made a detailed disclosure to the 1st complainant in the matter. The child expressed that he was fearful of the accused and that he "Hurt him" and outlined the details of the assault as above mentioned in these facts. The 1st complainant in the matter is the school Principal Mrs [name] who contacted the mother of the complainant and requested that the child be collected from school and medical attention be sought for the child's injuries. On Wednesday 2 March 2016 the accused in the company of the mother of the complainant attended the school where a conversation took place with [the principal]. [The principal] advised the accused and his wife that she was aware of the Injuries sustained by the complainant as a result of being assaulted the previous evening and reintergrated (sic) the need for the parents to seek medical attention for the child. Whilst the child was in the custody of his parents and en route to their home [address] the complainant disclosed to police that the accused was angry and was yelling at him saying ''You should have not told the principal" and that he mentioned that he was about to hit the complainant and further assault him. The Child stated that his mother shielded him from the accused. The complainant stated that when they arrived home he was told to go into the house and hide or similar. The accused and the mother of the complainant failed to present the Child to a medical facility for assessment or examination. Subsequently Family and Community and Services along with Investigators attached to the Child Abuse Squad attended the address of the complainant. At the time the accused was not present at the residence and the complainant was transported to the [name] Hospital Accident and Emergency department where it was arranged that a PANOC assessment of the complainant [name] was to be completed. About 6:15pm the accused was contacted by Investigators attached to the Child Abuse Squad via telephone and it was arranged for the accused to attend [name] Police Station in relation to an incident that occurred with his son the previous day. About 6:40 p.m. on Wednesday 2 March 2016, the accused presented himself at the [name] Police Station where he met Investigators attached to the Child Abuse Squad. He was subsequently cautioned and placed under arrest. Upon the arrest the accused he said " I just gave him a backhand hit". …"
2. The Police Fact Sheet goes on to state that the applicant participated in an electronically recorded interview with police. During that interview the applicant made admissions to "tapping" his son four times with the back of his right hand with a sweeping backhand motion and with force towards the child's abdomen. The applicant went on to say that after the first "tap" to his son's abdomen his son crouched down and covered his stomach. The applicant is recorded as having said that his son was known to dramatise any injuries when he was being punished, or when he got hurt playing basketball. The applicant is also recorded as having told police that he was of the belief that his son was dramatising his injury on this occasion so as to stop him from continuing his punishment.
3. The applicant is recorded as having told police that he lifted his son up by the top left shoulder of his basketball jersey after he had crouched down and said to him words to the effect: "I'm not done with you yet now get up". The applicant is recorded as having admitted that he struck his son again with the back of his hand with force in a sweeping backhand motion to his abdomen area, whilst continuing to tell his son what he had done wrong.
4. The applicant is recorded as having told police that he usually punished his children by smacking them on the hand and it was different on this occasion. He told police he did not intentionally cause injury to his son and denied having slapped his son to the face or punching him in the chest near his heart.
5. The Physical Assault & Neglect of Child Assessment (PANOC) conducted on the applicant's son stated that the applicant's son had sustained significant bruising to the abdomen as a result of the assault. The doctor who conducted the assessment is recorded as having stated that in her medical expert opinion the injuries sustained by the applicant's son appeared to be consistent with his version of events.
6. Police obtained statements from the applicant's son and his daughter, a copy of which was contained in the respondent's bundle of documents in these proceedings.
7. We note that the Local Court Magistrate, who sentenced the applicant in regard to his offending conduct and also imposed the two-year ADVO, accepted that there was no evidence that the head trauma to the applicant's son was caused by the actions of the applicant: see Transcript of Local Court Proceedings, Exhibit R2, at p 30, line 25. However, she did find that the head trauma occurred during the course of the incident. We understand the Magistrate accepted that the applicant had not hit his son on the head, but accepted that the son's trauma occurred during the course of the assault. The Magistrate, we note also said: "Certainly, there was no intention by the [applicant] to cause any injury."
8. During cross-examination at the hearing of this application, the applicant explained that on the day in question, during the afternoon, he told his son that he was going for a quick nap because he was due to go to work that evening. He said he asked his son to wake him. He said his son did not wake him and he woke about 4:30 pm, which was late because he and his son had to go to basketball training before he went to work. He explained that he was the coach of his son's team. He said he was angry because his son had not woken him and because his son had put his water bottle into the sports bag they take to basketball training without the bottle being properly closed. The applicant had his mobile phone and wallet in the bag and they both got very wet. The applicant said that his family know that his mobile phone is very important to him as this is how he receives notice of the shifts he is to work in his role as a disability support worker.
9. The applicant otherwise accepted what was contained in the Police Statement of Facts, but re-iterated that he did not intend to injure his son - his intention was to discipline him. He agreed that on reflection he now knows he should have taken his son to the doctor.
10. The applicant said that since seeing his psychologist, Mr A, he has learnt how to deal with any family issues and has not hit his son since the events of March 2016.

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. We agree with the respondent that the "trigger offence" is very serious, especially as it involved a 9 year-old child, who sustained injuries, which required him to be hospitalised over night for observation.
2. The applicant also accepts that what he did is serious. He said he was ashamed of himself and the trauma this incident has caused his family. In his affidavit filed in these proceedings, the applicant said he was angry and he now knows he let his son down terribly as a father and a person who should have been protecting, not harming him.

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

1. As at the date of the hearing, it was almost 23 months since the commission of the "trigger offence".
2. The applicant pointed out that since his offending he has not reoffended. Instead he has undergone counselling for emotional regulation and anxiety. He is continuing with this counselling as at the date of the hearing of this application. Since May 2016, when the Family Court made orders enabling him to move back into his home and have contact with his son, their relationship has improved, as has his relationship with his wife and daughter.
3. The applicant also pointed out that his referees (his wife, neighbour and work supervisors) all say that his offending of March 2016 was totally out of character and that they have observed him undertaking remedial work to ensure it does not happen again.
4. In her written submissions, the respondent pointed to the applicant's behaviour on the day after the assault on his son and his account of events subsequent thereto. In regard to the applicant's conduct on the day immediately following the assault the respondent noted the applicant: 1. failed to determine whether he had caused any injury to his son despite having struck his son with sufficient force to cause him to fall, 2. failed to take his son for medical treatment when he knew his son had sustained an injury and when the school principal had directed him to do so, 3. became angry with his son for disclosing the assault to the school principal and attempted to assault his son again.
5. In regard to the applicant's account of events subsequently the respondent noted the following: 1. on 1 April 2016, when the applicant saw his GP he told her that a few days ago he had an argument with his son. He told his GP that he felt his son needed discipline. He said he had hit his son softly with his hand on his son's tummy. He went on to say that his son kept rubbing his tummy through his jersey which caused red marks to appear on his tummy; 2. on 2 May 2016, when he gave evidence at his trial, in response to a question by the police prosecutor that he had hit his son in the stomach, the applicant said "in the stomach. My son have a skin condition which is when you're scratching or something like a little bit of hit, he turn out, it turn out red"; 3. the applicant is recorded as having told his treating psychologist that the assault was a "one-off" event when his son had tampered with his phone and turned the alarm off causing him to oversleep and miss a work social engagement. The applicant is also recorded as having told a work colleague that the assault was a "one-off" and was unintentional. 4. on 7 December 2016, the applicant declared in a statutory declaration that "in March of this year I momentarily lost my temper with my 9 year old son and struck him on the stomach causing bruising. I was tired and stressed at work and I knew what I did was wrong". 5. On 14 June 2017, the applicant is recorded as having told the respondent's risk assessment officer the following: 1. FACS had pursued the charges against him, 2. his son had been naughty and he punched him, 3. a "big deal" was made out of this and he and his wife proved to the Court that he didn't harm his son, 4. he denied causing bruising to his son and said it was caused by his son's basketball jersey rubbing on his skin, which is sensitive, 5. he did not abuse his son in any way, 6. he denied that there was medical evidence that he caused the bruising. He repeated that he had proved to Court that he had not done this, 7. his son has eczema and his son's skin becomes agitated when scratched. 1. on 30 1 June 2017, the applicant again told the respondent's risk assessment officer that he did not do anything wrong. He said the Family Court knew he had not done anything wrong as they allowed him back into the home. 2. on 27 October 2017, the applicant deposed in an affidavit that: 1. he lost his temper with his son and struck him about five times in the stomach, 2. he hit him twice and the child fell to the side and hit his head on the sofa, he thought the child was pretending and he pulled the child up by the shoulder and told him he was naughty, he struck the child a further three times with the back of his hand to his stomach, and he accepts that he caused the bruising to the child and caused the child to stress.
6. The respondent contends that the differing versions of events provided by the applicant as to what had occurred, raised concern as to whether the applicant is willing and/or able to acknowledge his wrongdoing and whether he is willing and/or able to appreciate the impact of his wrongdoing on his son and his immediate family.
7. As we have already noted, at the hearing of this application, the applicant again gave oral evidence to the effect that he had not intentionally hit his son. He also stressed that what he was doing was disciplining his son for having been careless in putting his opened water bottle into the sports bag. He explained that in his culture this was not considered as abuse but discipline. At the same time the applicant acknowledged that what he had done was wrong and he now understands that what he did was abusive of his son.
8. In our opinion, the applicant's account of events, since the March 2016 assault do not differ significantly. They do, however, minimise what occurred. We understand this is not unusual for offenders and is not necessarily an indicator of risk of re-offending. Nevertheless, we share some of the concerns raised by the respondent as to whether the applicant has sufficient understanding about his behaviour in assaulting his son and his conduct immediately thereafter in failing to take him to a doctor to be examined. We accept the applicant's son may have sensitive skin. But what is of concern is that the applicant has not at any time acknowledged that his behaviour on the day in question caused his son's eczema to flare up significantly. His son's eczema is a vulnerability the applicant has at all times been aware of and instead of protecting him from this condition worsening, the applicant's behaviour aggravated it.
9. As pointed out by the respondent, the Family Court orders were made by consent. They were not made after a contested hearing and we note the Local Court Magistrate in making the final ADVO order said that the matter was one where a parenting order from the Family Court should be obtained. We note the applicant and his wife did not even appear before the Family Court for the purpose of seeking such orders. They, through their lawyers gave their written consent to the orders that were made. While the Family Court orders enabled the applicant to return to his home, this was not immediate - he had to wait four months. As we have noted above, the provisions of the ADVO remained in force, other than the restriction on the applicant being able to live in the family home. That ADVO and the applicant's good behaviour bond remain in force until May this year.
10. We accept that there is no evidence of the applicant having behaved in a similar way since the March 2016 assault of his son. We also accept his evidence that he has learnt a lot since undertaking a counselling. These factors, as we have noted below are factors in his favour.

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

1. The applicant was 38 years of age at the time of the trigger offence.

(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. The applicant's son was 9 years of age at the time of the offending conduct. As noted by the respondent, the applicant's son was particularly vulnerable at the time of the assault as he was in the care and protection of the applicant and in his family home where he would have expected to be safe.

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

1. There is a 29 year difference in age between the applicant and his son.

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

1. The applicant was aware that his son was a child.

(g) The person's present age

1. The applicant is 39 years of age presently.

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

1. Other than the trigger offence the applicant has no criminal antecedents. As pointed out by the applicant in his submissions, the applicant has no convictions. On a plea of guilty he was found guilty of the 2016 assault charge but he was not convicted of it. In our opinion, nothing turns on this for the purpose of this application, other than to indicate that overall the applicant's criminal offending is not serious.

(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. The applicant submits that the likelihood of him ever committing any offence or engaging in violence, against a child or any other person, is very low to negligible. As noted above, the applicant submits that the trigger event was a one-off incident for which he has been punished, which included the ADVO conditions that denied him access to his family for many months. He submits that he has had to confront the shame he felt from what he did to his son and by having to seek forgiveness from his son, his wife and his daughter.
2. The applicant submitted that there were many factors in his life today which meant he was not likely to reoffend. These factors included, his strong family and work support network, his ongoing counselling, his non-existent criminal record, his age and maturity, his good character (other than the trigger event), and his new-found insight and reflection on his emotional regulation.
3. The respondent, on the other hand, submits that there is a likelihood of the applicant reoffending. In this regard the respondent pointed to a number of reports of the applicant having been violent towards his wife. The respondent also noted that no formal risk assessment had been undertaken of the applicant, by a suitably qualified expert as to whether, at the present time, the applicant poses a risk to the safety of children.
4. In regard to the latter, we note there is no statutory requirement on the applicant to obtain a formal risk assessment. In his oral evidence at the hearing, the applicant explained that the cost of a formal risk assessment was substantial and one he could not afford. Instead he has relied on the reports and evidence of his treating psychologist, Mr A. We have dealt with Mr A's evidence below.
5. In regard to the applicant's alleged violence towards his wife, the respondent relied on the following: 1. on 2 March 2016, the applicant's son disclosed to the school principal that his father had hit his mother and sister before and that they were scared of him; 2. on the same day, the applicant's daughter disclosed to police that the applicant had slapped her on the face during a driving lesson. The applicant's daughter also reported that there had been domestic violence in the house. She told police that she feared that this kind of thing might happen again as her father was going to be angry because of what had happened; 3. on 11 March 2016, the applicant's son disclosed to FACS that he had witnessed his father hit his mother and sister many times before and seen his father punch a hole in the wall; 4. on 30 October 2005, the applicant's wife called police to attend the home following an argument between her and the applicant. It was noted that there was no threat of violence at this time; 5. on 30 March 2006, the applicant called an ambulance and reported that his wife had accidentally hit her own stomach whilst waving her arms around during an argument. The applicant's wife was pregnant at that time. Records of FACS noted concerns about domestic violence between the parents and the impending impact of violence upon the children; 6. on 20 November 2012, the applicant's wife left the residence with her son and attended the local Police Station. She reported that she and the applicant had separated but he was visiting the home. She said there had been an argument between them and the applicant pushed her backwards causing her to fall onto the lounge. She said the applicant grabbed her by the throat, pushed her up against the wall, struck her right upper arm and the back of her head and threatened to strike her car with a dumbbell. On the same day, police interviewed the applicant. He acknowledged that there was an argument. He said it occurred as he was trying to leave. His wife stood in the doorway to prevent him from going. He said he tried to get past her and she began flinging her arms in an attempt to scratch him and in an attempt to protect himself, he pushed his arms forward and made contact with his wife's chest. He acknowledged he had threatened to damage her car with a dumbbell - but put it down and left. He said he was angry. Police did not charge the applicant due to discrepancies in the account of events by his wife. However, an application for an ADVO was made and a report was made to FACS. A provisional ADVO was made that day for the protection of the applicant's wife. A final ADVO was made on 21 January 2013 and that ADVO was for a period of 12 months.
6. In response to these concerns, the applicant's evidence was that he had acknowledged what his son and daughter had told police and FACS, following the 2 March 2016 incident. In regard to hitting his daughter he said he had tapped her on the cheek one day when she was learning to drive. He said he did this as she was driving into the wrong lane. He also acknowledged he had hit the wall.
7. The applicant also explained that during 2005, 2006 and 2012 his marriage was under some strain due to financial problems. He said that in regard to the 2005 incident when police were called he and his wife were arguing and he agreed to leave the home at that time.
8. In regard to the 2006 incident, the applicant said he and his wife were arguing about their financial problems when she struck her stomach while waving her arms around. He said he called the ambulance, as he was concerned about her and their unborn child. He said police came to see him the next day, when his wife had gone to work. He said they did not charge him or contact him again.
9. In regard to the 2012 incident, the applicant said that he was not living at home at that time as they were going through a tough time and they were trying to work things out. At the hearing he explained he was living with his sister at that time and even though he was not living in the family home he continued to contribute financially and would visit often. On the day in question, his wife was working and he had just arrived at the family home as his son returned from school. He said his wife came home about 5pm and began yelling at him as soon as she came in. He acknowledged they had argued and his wife went to the local Police Station, which was about 200 metres from their home. He said he also went to the local Police Station where he was interviewed.
10. In regard to the ADVO, he said final orders were made in his absence, as he had not been notified of the hearing. As we have noted, at the time the applicant was not living at the family home. The applicant said he decided not to appeal the ADVO.
11. We also note that, in 2016, the applicant's wife gave evidence in support of her husband for the purpose of the ADVO hearing. In her evidence she stressed the importance to her and her children in having her husband return to the family home.
12. In support of the applicant's application for a clearance, the applicant's wife said 2016 was a period that was "one of the hardest and saddest times of my life and my family's life" when the Local Court prevented her husband from living in the family home. She said that she and their children were so happy when the applicant was allowed to return home. Since that time the applicant has undergone counselling and he has re-built his relationship with his children. She said: "currently, I have no ongoing concerns about my husband and what happened before. He has learned a very hard lesson".
13. In compliance with the orders of the Family Court, the applicant was referred by his GP to Mr A, a clinical psychologist. In support of his application, to the respondent for a clearance, the applicant provided a professional reference from Mr A. In that reference Mr A said he had provided the applicant with cognitive behaviour therapy to manage his anger problems. He also said he provided parenting strategies to help improve the communication between the applicant and his children. Mr A said the applicant had benefited from psycho-education about attachment theory which helped him to understand safe parenting practices. Mr A also explained that as at 3 November 2016, the applicant had completed his full 10 sessions allowed through his Mental Health Care Plan. He said the applicant had made significant improvement in controlling his anger and by reducing displaced stress from work to his family home.
14. In October 2017, the applicant's GP again referred the applicant to Mr A for treatment in managing his anxiety and to reflect over the assault charges that had been laid against him in 2016. That referral we note was made about a month after the applicant had lodged this application for review. At the time of the hearing of this application, the applicant had attended five further sessions with Mr A.
15. In his oral evidence at the hearing of this application, Mr A said that when the applicant was first referred to him for treatment, the applicant told him that the trigger of the 2016 offence was deceit. That is, the applicant had told him that his son had tampered with his mobile phone in that he had switched off the alarm so that he could continue to play his computer game, which made him angry when he woke up late. Mr A explained that during the 2016 sessions, the applicant had not disclosed to him that he had been domestically violent towards his wife previously or that he had slapped his daughter. Nor had the applicant told him that his son's school had told him to take his son to hospital. He agreed, during cross-examination, that these were matters that should have been raised with him during the course of therapy. He said that it was not until 23 October 2017 that the applicant disclosed to him that he was subject to an ADVO for the protection of his wife.
16. Mr A said that he had not undertaken any forensic risk assessment, as his role was a therapeutic role, but would recommend the applicant undertake a risk assessment. Otherwise, he said he wanted to continue with the remaining sessions available to the applicant under his current Mental Health Care Plan. These we note the applicant has undertaken to complete and he has already made an appointment for the next session.
17. While the applicant has attended counselling as a result of the orders made by the Family Court, we nevertheless commend him for doing so. He appears to have learnt a lot. However, in light of the evidence of Mr A, we agree there appears to be a need for him to continue with these sessions until such time Mr A or another health professional is satisfied the applicant has an understanding not only of safe parenting but also child protection in a child related working environment. We do not imagine this will take very long. However, in the absence of additional counselling we have some doubt as to whether the applicant has the necessary skills not to behave in an overly aggressive manner as he did in March 2016 if he were to find himself in a stressful situation with a child in a child-related working environment.

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

1. In his affidavit of 29 September 2019, the applicant explained that he came to Australia from the Philippines in 1998. From 1998 to 2010 he worked as a factory worker, sales worker, an administrative worker and a croupier. He said that in 2010 he started a business of his own which went badly and he had to declare himself bankrupt in 2011. He explained that in 2011 he started working as a disability support worker and has continued to work in this role since that time. The applicant explained that his work involved working with people with significant cognitive, physical and/or mental disabilities, with high and complex needs. He said his day-to-day work involved assisting his clients with living skills (e.g. personal grooming, cooking and shopping), appointments, day programs and activities. He said he enjoys the challenge and the gains he sees in his clients. He said he felt it was rewarding for him and his clients, in particular that he is able to assist his clients to access the community and live a fuller life. He works shift-work on a 24/7 rotating and on-call roster.
2. The applicant provided two employer references in support of his application for a clearance. Each referee refers to the 2016 assault of his son, which they state to have been a "one off incident". They state that the applicant is professional, and works in a patient and caring manner. In particular, it is said that the applicant remains calm, level headed and maintains a professional and courteous disposition when residents exhibit difficult behaviours. The applicant is described as being a very responsible gentleman and is a well respected and valued team member.
3. As we have noted above, the applicant also provided personal references.
4. We accept that the applicant is well regarded by his work colleagues and friends. What is unknown is the extent of the knowledge of these referees about the applicant's past behaviour. Nevertheless, we find that there are no adverse findings or reports of inappropriate conduct by the applicant in his work environment, which we accept is challenging and involves vulnerable people.

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

1. We have dealt with the respondent's concerns above.

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

1. We reiterate, there is no presumption that the applicant poses a real and appreciable risk to the safety of children.
2. However, given the seriousness of the applicant's 2016 offending, together with his conduct thereafter, in our opinion this does give rise to concerns that he poses a real and appreciable risk to the safety of children. The offending involved a nine-year-old child and was unprovoked. The seriousness of that offending, in our view, is reflected in the ADVO conditions as imposed by the Local Court Magistrate and the orders made by the Family Court. The offending, while isolated, is also relevantly recent and the applicant remains subject to a bond and the ADVO conditions as by the Local Court until May this year.
3. Also of concern is the applicant's reported history of alleged domestic violence towards his wife. These reports were not of an isolated alleged incident and while not of the same level of seriousness or severity as the 2016 offending, we agree with the respondent that the reports of alleged domestic violence are of concern. We accept the applicant's evidence that these reported incidents occurred at a time when his marriage was under some stress. However, this is not an excuse.
4. In our opinion, the applicant has been relatively frank in his account of what occurred in 2016 and during the times his wife reported incidents of alleged domestic violence to police. He has not fully denied what is alleged to have happened, but has minimised his role. While minimisation is not unusual, in our opinion, the applicant's minimisation reflected a misunderstanding of his role as a parent and as a consequence, his role in protecting children or vulnerable persons in his care.
5. We accept the applicant is ashamed of what he has done and commend him for having undergone counselling in regard to his behaviour. As a consequence, he has developed a more supportive and caring relationship with his wife and family. Regrettably, he has not fully disclosed some of his past behaviours and there is more work to be done. As we have noted, we do not anticipate this to take very long.
6. We also accept that during his seven years of working as a disability support officer there have been no complaints made against him. He had previously been issued a working with children check clearance under the previous provisions of the former Commission for Children and Young People Act 1998 and that he was able to continue to work as a disability support officer while the respondent conducted her risk assessment. Shortly after the respondent refused the applicant's application for a clearance, he was able to continue with his work as a result of a stay order made by the Tribunal. We note there have been no complaints made against the applicant during the time he has continued to work as a disability support person. In all, this has been for almost the entire period since his 2016 offending. However, since the stay order was made, the applicant's work has been subject to conditions, namely that he not work with children.
7. Accordingly, we accept that there are many factors in favour of the applicant.
8. As we have noted, a working with check clearance cannot be granted subject to conditions. Hence, we must determine whether, on the information before us, we can be satisfied that, as at the time of the hearing of this application, the applicant poses a real and appreciable risk to children in child-related work generally. In making that determination we must also have regard to s 4 of the WWC Act, namely 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.
9. We have considered very carefully all the factors in favour of the applicant, however, on balance, having regard to the paramount consideration, we are not satisfied that these outweigh the real and appreciable risk the applicant poses to children that arises from his 2016 offending and his conduct immediately thereafter. We make this finding on the basis of the severity and seriousness of the offending (which is not disputed) and the fact that the offending did not occur very long ago together with the applicant's need for ongoing counselling to fully address his behaviour. Accordingly, we are satisfied that, as at the time of the hearing of this application, the applicant poses a real and appreciable risk to the safety of children. In making this finding, we believe that with further counselling we may not be so satisfied. However, as we have explained below, this will be a matter for the respondent to determine in the event the applicant makes a further application for a clearance once he has undertaken further counselling.
10. We appreciate that the applicant may have some difficulty in accepting our finding, especially as there is a five year statutory embargo on him making a further application for a clearance: see WWC Act, s 13A(1). However, we encourage him to undertake the additional counselling suggested by Mr A and in doing so make full disclosure of his past behaviours. Evidence of additional counselling and any other information which demonstrates that the applicant fully understands child protection issues in a child-related work environment may be sufficient for the respondent to exercise her discretion to permit the applicant to make a further application earlier than the five year embargo: period see WWC Act, s 13A(1)(b) and (2)(d).

Section 30(1A)(a) - 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 light of our findings it is unnecessary for us to consider the s 30(1A) matters. However, in the event we are wrong in our findings we have also considered these matters.
2. First, in our opinion, given the applicant's 2016 offending and the fact that the applicant remains subject to a bond and the conditions of the ADVO, we could not be 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 applicant person is engaged in any child related work. In our opinion, a reasonable person would not allow his or her child to have direct contact with the applicant until the bond and the conditions of the ADVO had expired and then only if the applicant were able to establish that he had completed sufficient counselling so that he fully understood his role in protecting children from harm.

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. We accept that there is a right of every individual to be employed and to participate in the community and in this regard we accept the applicant is a valued member of those organisations for which he has worked and those for which he continues to work in his role as a disability support officer. We also appreciate that finding suitable persons to work in such roles may not be easy. However, for the reasons we have given above under the s 30(1A)(a) heading, we also find that as at the time of the hearing of this application it would not be in the public interest to grant the applicant with a clearance.
5. Again, with additional counselling this may change.

Conclusions and Orders

1. For the reasons set out above, we are satisfied, on balance that, as at the date of hearing, the applicant poses a real and appreciable risk to children if he were to be granted a clearance to work in child-related employment. Accordingly, we find that, at this time, the decision of the respondent is the correct and preferable decision. Hence the appropriate order is to affirm the decision of the respondent.
2. Notwithstanding our findings and decision, we encourage the applicant to undertake the additional counselling recommended by his treating psychologist.
3. On the basis of our findings, we make the following order: 1. The respondent's decision made on 8 September 2017 to refuse the applicant's application for a working with children check clearance affirmed. ​

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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

Amendments 16 April 2018 - typographical error - Date of Orders and Decision corrected. 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: 16 April 2018