This is an Application for review of a decision made by the Respondent on 11 August 2017 to refuse to grant the Applicant a Working with Children Check clearance.
The Applicant applied for a Working With Children Check volunteer clearance on 6 October 2016, nominating Adult Household Member as the child related employment for which he required the necessary clearance. The Office of the Children's Guardian undertook a risk assessment in accordance with the provisions of s 15 of the Child Protection (Working with Children) Act 2012 (NSW) as the Applicant was subject to an assessment required as provided by s 14 of the Act. The Applicant was referred for a risk assessment because of three convictions in his history for domestic violence offences, referred to in the assessment as "pattern trigger offences".
The Children's Guardian noted in the reasons for the refusal decision that the Applicant had three convictions for domestic violence offences between 2006 and 2011, and, since that time he had incurred further charges and convictions, with his last offence in 2013 resulting in 12 months imprisonment. It was also noted that the Department of Family and Community Services had received "multiple child protection reports in relation to domestic violence and drug abuse" by the Applicant. The victim of the domestic violence offences in each case was the Applicant's ex-partner, who is the mother of his son.
The Children's Guardian also considered reports from the NSW Police and the Department of Family and Community Services [1] showing that in November 2012, Police had removed the Applicant's son from the care of his mother due to immediate concerns for the child's safety and welfare. The child was placed in the care of the Minister. Soon after that, the Applicant was imprisoned for 12 months.
On his release from prison in 2013 the Applicant sought to have parental responsibility for his son. He participated in parenting courses and agreed to undertake random urine drug testing. A urine drug report in April 2014 had shown evidence of a moderate to high use of Cannabis. After an assessment of the Applicant's parenting capacity in 2015, the Department of FACS refused his request for parental responsibility of his son and a recommendation was made that he should have supervised contact visits.
When considering the likelihood of any repetition of the offences or other matters that caused the risk assessment and the impact on children of any repetition, the Children's Guardian stated:
"[The Applicant's] criminal and child protection history indicates a pattern of anti-social and law breaking behaviour, with significant difficulties complying with authority. [The Applicant's] history also records conduct that has exposed children to risk of harm, and while he has provided evidence of completion of parenting and anger management courses, he has not addressed issues related to domestic violence and substance misuse. Additionally, his statutory declarations appear to minimise the seriousness of his offences, and information from FACS indicates aggressive and threatening conduct towards FACS staff members and his ex-partner (the victim) as recently as 2015". [2]
The Children's Guardian considered a statutory declaration provided by the Applicant, as well as copies of certificates of the courses he had completed and two character references.
The Children's Guardian reached this conclusion:
"[The Applicant's] overall criminal history and child protection history are serious, and reflects (sic) a repeated pattern of anti-social behaviour and disregard for the safety of others, including children. It is also significant that [the Applicant] has ben assessed by FACS as unsuitable to care for his biological son, and made recommendations that he has supervised access. This raises concerns about [the Applicant's] ability to engage in child related employment, particularly in a domestic setting. If the violent behaviour was repeated to children or in the presence of children, the consequences would be detrimental to their overall wellbeing.
Although [the Applicant] reported recent positive changes in his lifestyle including a stable intimate relationship, stable employment and previous engagement in parenting courses, he has not addressed the risks identified in his records including drug use, criminal behaviour, domestic violence and disregard for authority. Given [the Applicant's] aggressive response to FACS, the Children's Guardian could not be confident that he would comply with legislation, procedures and child protection agencies responsible for ensuring the protection of children as per the objective of the legislation."
The Children's Guardian was satisfied that the Applicant posed a risk to the safety of children. Accordingly, the Children's Guardian refused to grant the Applicant a Working With Children Check clearance in accordance with s 18(2) of the Child Protection (Working with Children) Act 2012.
On 31 October 2017 the Applicant filed an Application for Administrative Review of the Decision. He cited this ground for the Application:
"My partner is going custody of her Grand Daughter. I have been [required] of DOCS to receive a Children check but I am unhappy of the decision that was made"
Although the Application was out of time, the reason that the Applicant gave was:
"I work as a Furniture Removalist and require to travel for my job".
The Tribunal accepted the Application.
In support of his Application, the Applicant provided the following documents:
1. A letter from himself dated 5 September 2017 addressed to the Tribunal;
2. A statement by way of a character reference from his partner dated 5 September 2017;
3. A statement by way of a character reference from his partner's adult daughter dated 5 September 2017;
4. A statement dated 5 September 2017 from one Michelle Mayhew, a caseworker from Kempsey Staying Home Leaving Violence, that relate s to the Applicant's partner;
5. A statement dated 23 September 2017 from Home-Start Kempsey/Macleay, confirming that the Applicant had completed the Triple P Parenting program in November 2013;
6. A Statement of Attainment dated 15 August 2013 from the Hunter Institute TAFE certifying that the Applicant had completed a first aid course;
7. A Triple P Certificate dated 25 November 2013 showing that the Applicant had completed the Triple P Parenting Program (Level 4);
8. A statement from Interrelate dated 27 July 2015 certifying that the Applicant had attended the Building Connections program;
9. A Certificate of Completion dated 28 September 2016 certifying that the Applicant had completed the Bringing Up Great Kids Parenting Program;
10. A reference from his employer dated 10 August 2016;
11. A business card from his former treating psychologist; and
12. A Psychological Assessment and Report dated 26 July 2018 from Di Frost, psychologist.
The Respondent Children's Guardian relied on six bundles of documents, numbered I to VI, under s 58 of the Administrative Decisions Review Act 1997 (NSW). The Respondent also relied on three further bundles of documents, from 15 March, 3, April and 21 August 2018, all of which were received into evidence without objection.
Only the Applicant gave oral evidence. His former treating psychologist did not provide a report. The Respondent sought that his current psychologist, Ms Frost, should attend for cross-examination, but in an email dated 24 August 2018 she declined to attend the hearing.
For the reasons that follow, the Tribunal has decided that the decision of the Children's Guardian made on 11 August 2017 not to grant the Applicant a Working With Children Check clearance should be affirmed.
[2]
Legal Principles
Under s 18(2) of the Child Protection (Working with Children) Act, the Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
Subsection 27(1) of the Act permits a person who has been refused a working with children check clearance to apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 within 28 days after notice of the decision was given to the person. Whilst this Application was out of time, the Respondent did not oppose an extension of time and Senior Member Anderson granted leave on 18 January 2018.
In determining an application for review, the Tribunal is required by s 63(1) of the Administrative Decisions Review Act to decide what the correct and preferable decision is having regard to the material before it.
Neither party bears an onus in an application for review (see BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32], citing Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]-[40]).
In an application under s 27 of the Act, there is no power in the Tribunal to grant a Working With Children Check clearance subject to conditions (BJB v NSW Office of the Children's Guardian (No 2) [3] at [36]-[45]; CDX v Children's Guardian [2016] NSWCATAD 17 at [36]; CTE v Children's Guardian [2018] NSWCATAD 28 at [42]-[43]).
As the Respondent has submitted, the scheme of the Act is protective and not punitive (Commissioner for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]).
Section 4 of the Child Protection (Working with Children) Act provides that:
"The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is [4] the paramount consideration in the operation of this Act."
Whilst the Act does not provide a definition of the term "child abuse", it is helpful to consider the definition of the term "child and young person abuse" contained in s 227 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and also the definition of "abuse" in relation to a child found in s 4(1) of the Family Law Act 1975 (Cth).
Section 5B of the Act states that:
"A reference in this Act to a risk to the safety of children is reference to a real and appreciable risk to the safety of children."
Whilst this definition was only introduced into the Act on 1 June 2018 by the Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW), the concept of real and appreciable risk to the safety of children has been previously considered by the Supreme Court of New South Wales in Commission for Children and Young People v V [2002] NSWSC 949 at [42] (cited with approval in BKE v Office of Children's Guardian [2015] NSWSC 523 at [26] and [30]-[33]; see also M v M (1988) 166 CLR 69; Children's Guardian v BQJ [2016] NSWSC 869 at [64] and Children's Guardian v BQJ [2016] NSWSC 869, where it was held that it is not necessary for the Tribunal to make any findings that allegations not the subject of convictions had in fact occurred.
Even if not positively satisfied on the balance of probabilities that the acts occurred, if a "lingering doubt or suspicion remains" then this should count against the applicant, although it is not necessarily fatal to the applicant's efforts to obtain a clearance (BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]).
If the Tribunal is considering making a positive finding that an allegation occurred, this should be clearly foreshadowed to the applicant in advance (BKE v Office Children's Guardian (supra) at [70]). In considering whether to make a positive finding, due regard must be had to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 (CFK v Office of the Children's Guardian [2017] NSWSC 460 at [69]).
In Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 the Court of Appeal stated at [126]:
"It is not necessary, in order to resolve this appeal, to examine in any detail the way in which the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW) applies to fact finding in a tribunal to which the rules of evidence do not apply".
In determining the Application, the Tribunal is required to consider the matters listed in s 30(1) of the Child Protection (Working with Children) Act 2012. In addition, the Tribunal must have regard to the matters contained in s 30(1A) of the Act. It is an error of law to make an order that has the effect of enabling a person to work with children without making a determination that the requirements of s 30(1A) have been satisfied (Children's Guardian v CVE [2017] NSWSC 1342 at [24]).
It is only if the Tribunal concludes that the Applicant does not pose a risk to the safety of children that it is then required to go on to consider the "reasonable person" test and the "public interest" test in s 30(1A) of the Act (CHB v Children's Guardian [2016] NSWCATAD 214 at [107]).
[3]
Background
Counsel for the Respondent has prepared a useful chronology describing events that are uncontroversial and the Tribunal has had recourse to that document for the purpose of preparation of these reasons for decision.
The Applicant was born on 11 July 1979.
On 18 April 1996 at Lidcombe Children's Court the Applicant was convicted of common assault on his de facto partner. He received a fine. The Applicant was 16 years old at the time. An Apprehended Violence Order was also made against him, naming his de facto partner as the person in need of protection. The AVO was for a period of 2 years.
On 10 January 1997 at Lidcombe Children's Court the Applicant was convicted and placed on probation for 2 years with conditions not to assault, molest, harass or intimidate the victim, his de facto partner.
On 29 July 1997 the Family Court made orders restraining the Applicant from having contact with his de facto partner's six children.
On 25 August 1997 a Final Apprehended Violence Order was made against the Applicant for the protection of his de facto partner's children for a period of 2 years.
On 16 December 1998 a Final Apprehended Violence Order was made against the Applicant for the protection of his de facto partner's children for a period of 12 months.
On 23 March 1999, the Applicant, now an adult aged 19, was convicted at Hornsby Local Court and placed on a 12 month recognizance under s 558 of the Crimes Act 1900 (NSW) in relation to 6 charges of contravening an Apprehended Violence Order.
On 16 April 1999 the Applicant was convicted at Parramatta Local Court and sentenced to the rising of the Court on a charge of common assault in respect of his de facto partner. He was also made the subject of an Apprehended Violence Order for the protection of his de facto partner for a period of two years.
On 28 July 1999 at Manly Local Court the Applicant was convicted and fined in respect of two charges of contravening an Apprehended Domestic Violence Order in relation to his de facto partner.
On 31 August 2004 at Hornsby Local Court the Applicant was convicted and fined in respect of two charges of driving whilst unlicensed, one charge of driving without wearing a seatbelt and one charge of stating a false name and address.
On 11 January 2006 at Manly Local Court the Applicant was convicted and fined in respect of one charge of possession of an illicit drug (cannabis) and one charge of hinder police in execution of duty.
On 25 June 2007 at Manly Local Court, the Applicant was convicted and sentenced to a 100 hour Community Service Order in respect of a charge of assault occasioning actual bodily harm. The victim was another de facto partner who was the mother of the Applicant's child, a boy aged three months at the time.
On that same day, the Applicant was sentenced to a 50 hour Community Service Order in respect of charges of common assault and contravening an Apprehended Domestic Violence Order.
On 25 June 2007 at Manly Local Court the Applicant was convicted and fined in respect of one charge of driving whilst unlicensed and one charge of stating a false name and address.
On 30 April 2008 at Bankstown Local Court the Applicant was convicted and fined in respect of a charge of driving whilst disqualified.
On 26 August 2008 at Manly Local Court an Apprehended Domestic Violence Order was made against the Applicant by consent and without admissions for the protection of the Applicant's current de facto partner.
On 15 June 2011 at Manly Local Court the Applicant was convicted and fined in respect of charges of driving whilst disqualified and stating false name and address (on 24 April 2010), failure to appear on bail (on 29 October 2010) and driving whist disqualified (on 21 March 2011), for which latter offence he was placed on an 8 month intensive correction order.
On 23 November 2012 the State Parole Authority revoked the Applicant's intensive correction order and he was required to serve the balance of the term, a period of 7 months, in prison.
On 4 December 2012 at Hornsby Local Court the Applicant was convicted in respect of a charge of driving whilst disqualified and sentenced to a period of imprisonment of 12 months with a non-parole period of 9 months. This sentence was reduced on appeal to the District Court on 13 February to a period of 12 months with a non-parole period of 4 months.
On 6 February 2013 at Cessnock Local Court the Applicant was convicted without penalty in respect of a charge of common assault on his de facto partner.
On 3 January 2017 the Police obtained an interim Apprehended Violence Order against the Applicant which was withdrawn on 26 October 2017 on the basis that the Person in need of protection had no fears of the Applicant.
The Respondent also detailed the Applicant's history of dealing with the Department of Family and Community Services from July 2006 in respect of the Applicant's son, who was born on 17 March 2006.There were numerous Risk of Harm reports and results of interviews made from 1 July 2006 through to 24 December 2015.
There were various matters from 2014 to 2016 that are regarded as particularly significant:
1. On 18 February 2014, when the Applicant's son was interviewed by officers of FACS, the child was reported as saying that his father "always gets angry and hits my mum".
2. On 1 April 2014, in an interview about his history of assaults, the Applicant is alleged to have said that the trigger was "people in my face, yelling".
3. On 18 May 2015 a Community Services file note described the Applicant as "still very controlling", which was being passed on to his son.
4. An email dated 25 May 2015 from Kempsey Family Support Service expressed concern about the effects of contact with the Applicant on his son, saying that the child had been exposed to his father's violent and abusive behaviour.
5. In a file note darted 27 August 2015 the Applicant was reported as having become agitated and yelled at a caseworker.
6. An email from a Manager at FACS dated 21 September 2015 raised concerns about the behaviour of the Applicant during contact with his son, saying that attempts to engage the Applicant on the telephone had been unsuccessful as he yelled and hung up.
7. A report to FACS on 9 October 2015 stated that the Applicant's son described a violent incident in which his father had bashed another man.
8. An email dated 5 December 2015 from a social worker named Diane Edwards stated that the Applicant's son was severely affected by exposure to domestic violence and that the Applicant was unable to place his son's needs above his own, nor was he able to understand the impact of his attitude on the child. The social worker expressed the opinion that unsupervised contact between the Applicant and his son was currently detrimental to the child's psychological and emotional health.
9. On 16 December 2015 a file note of a conversation with the Applicant stated that he was unhappy with being told that contact with his son was to be supervised. He became loud and annoyed, yelling and talking over the caseworkers. He allegedly told them that they "did not know what he was capable of".
10. An independent review of contact by Diane Edwards dated 24 December 2015 stated that:
"Applicant demonstrates limited insight into effects of contact on [his son]. Unsupervised contact between the Applicant and [his son] assessed to be detrimental to [his son's] psychological and emotional health, and to be creating additional and unacceptable stress on the relationship between [his son] and his mother. Recommendation made for supervised contact only."
[4]
Evidence
The Applicant relied on the documents referred to in paragraph [13] above.
The Respondent relied on the documents referred to in paragraph [14] above.
The Respondent sought that the Applicant's treating psychologist, Ms Frost, should attend for cross-examination, but she declined to attend the hearing.
The Applicant was cross-examined about his criminal record by Mr Fraser of counsel for the Respondent. The Applicant disagreed with a number of matters in his criminal history, although he admitted much of it. He denied that he had grabbed his ex-partner around the neck in April 2005, or that he had harassed or verbally abused her in July 2008. He said that he had admitted to a charge of Assault Occasioning Actual Bodily Harm in June 2006, although he said it was "an accident".
The Applicant said that he had not used cannabis since he was 17 years old.
The Applicant gave evidence about ongoing issues over his contact with his son, saying:
"No matter how bad it looks, no one seems to recognise that I had my son living with me for nearly a year."
He referred to an incident where he picked up his son from school on 15 November 2012, which he said was because his ex-partner was too intoxicated to do so.
The Applicant denied that he drank alcohol to excess, saying that the last time he had a beer was when he was watching the All Blacks. He said that he did not normally drink at home.
The Applicant also denied that his son had told FACS that he always got angry and hit the child's mother. He said:
"Nobody's done anything but she's getting a free ride with my son. I dispute ever hitting [her]. My voice is enough to scare anybody."
The Applicant denied that he had returned a positive result to drug tests to cannabis on 17 April and 1 May 2014, saying:
"I disagree with it, especially when I have got a piece of paperwork saying it was negative".
The Applicant complained about the actions of the Department of Family and Community Services, saying that the Department had put his son into ten different care houses with older children. He admitted that on 27 August 2015 he had become agitated and yelled at a caseworker. He said on 21 September of that year the child had gone to school and had been suspended because he had become involved in a fight. He complained that the Department would not even let him have a phone call with the child.
When asked about the recommendation made on 24 December 2015 that his contact with his son should be supervised, the Applicant said that FACS had not reported any comments made by his son about his mother's contact with drug dealers. He said that the child was rebelling because "he is not having contact with me. They are not listening to my son."
They Applicant went on to say:
"I still bring it back to DOCS; it's their fault.'
The Applicant said that he last had contact with his son eight months before the Tribunal hearing, saying that he stopped contact so that he could concentrate on his Working With Children application.
The Applicant also said that he was seeking a Working With Children Check clearance so that his partner could have her granddaughter placed with her. He denied saying to officers from FACS that "you don't know what I'm capable of."
He said that he had said "I will have your job".
The Applicant said that his son has been affected not through himself but through his mother "and her partner and the people she associates with."
He submitted that his criminal history was basically composed of things that he had done as a child and it has been his son's mother's decision that he was not to see him.
Mr Fraser, for the Respondent, submitted that the Applicant poses a risk to children and that a recent assessment in respect of his partner's granddaughter showed that both the Applicant and his partner have been assessed as unsuitable to be authorised as carers. He otherwise relied on his written submissions.
[5]
Conclusions
When considering an application for review of a WWCC clearance decision, the Tribunal must consider the matters set out in ss 30(1) and (1A) of the Child Protection (Working with Children) Act.
First, under s 30(1)(a) of the Act, the Tribunal must consider the seriousness of the allegations and the matters that caused the refusal of a clearance to the Applicant.
The Applicant has a history of convictions for domestic violence related assaults on six occasions between April 1996 and February 2013. There have been no fewer than five final Apprehended Violence Orders issued against him between April 1996 and August 2008. He has been convicted on ten charges of contravening these Apprehended Violence Orders between September 1996 and September 2006.
The Applicant also had a number of convictions for driving offences of varying degrees of severity between March 2004 and December 2012, two of which have led to his serving periods of imprisonment.
There have been various reports by the Department of Community Services about the Applicant's violent and controlling behaviour, and it is noteworthy that he is only permitted to spend time with his son on a supervised basis. Curiously, for a man who claims that his son is acting out because he is not able to have contact with his father, the Applicant has given evidence that he has elected not to have contact with his son for the past eight months so that he can concentrate on his Application for review of a refusal to grant him a Working With Children Check clearance.
The Applicant's oral evidence was also noteworthy for the fact that he constantly downplayed and sought to minimise the severity of matters in his criminal history, including denying some matters that had led to convictions. A Parenting Capacity Assessment by the Department of Family and Community Services made on 2 September 2013 also noted that the Applicant was said to "minimise responsibility for domestic violence".
The period of time since the matters occurred (s 30(1)(b)) is as long ago as 1996 and as recent as 2011. There have been other more recent criminal matters, one of which has led to a period of imprisonment for driving whilst disqualified.
In recent years, from 2014 onwards, the Applicant has come under significant notice by the Department of Family and Community Services in respect of his son, who was born on 17 March 2006 and is now aged 12 years and 8 months. The Department has expressed concern about the Applicant's violent, aggressive and controlling behaviour towards the child's mother and the effect it has had on his son. It is significant that the Applicant's contact with his son must be supervised, even though he has elected not to have any contact with his son for most of this year.
The Applicant was aged between 16 and 32 years during the period when his domestic violence related offences occurred (s 30 (1)(c)).
The victims of his offences at the time were adults, being his ex de facto partners (s 30(1)(d)).
The Tribunal must consider the difference in age between the Applicant and his victims (s 30(1)(e)). The Tribunal does not have precise evidence of the age of each of the victims of the assaults, both of whom were his de facto or former de facto partners, although they were both adults and the first de facto partner was, on the Applicant's evidence, some years older than him.
Again, the Tribunal is required by s 30(1)(f) to consider whether the Applicant knew, or could reasonably have known, that any of the victims was a child. Whilst the victims were both adults, counsel for the Respondent has submitted that on a number of occasions children were known to be present at the relevant times.
The Applicant was born on 11 July 1979 and so is 39 years of age (s 30(1)(g)).
S 30(1)(h) requires the Tribunal to take into account the seriousness of the Applicant's total criminal history and conduct since the offences occurred. The Applicant has a lengthy history of domestic violence related assault convictions and he has been subject to a number of Apprehended Domestic Violence Orders for the protection of his former de facto partners or, in one case, the children of one of his former partners. It is significant that the Applicant has, on more than one occasion, been convicted of contravening an apprehended Domestic Violence Order.
The Applicant also has a significant history of convictions for traffic offences, including driving whilst disqualified, which has eventually led to his serving a term of imprisonment. It is also concerning that on 15 June 2011 he was placed on an 8 month Intensive Corrections Order but on 23 November 2012 the State Parole Authority revoked the Order and the Applicant was required to serve the balance of the term, namely 7 months, by a term of imprisonment. This was due to the fact that the Applicant had failed to comply with the terms of the order.
The Tribunal is required to consider by s 30(1)(i) the likelihood of repetition of the conduct and the impact on children of any such repetition.
The Applicant's criminal history shows a pattern of failing to comply with orders made by a Court by continuing to drive whilst disqualified, failing to comply with an Apprehended Domestic Violence Order and failing to comply with the terms of an Intensive Corrections Order, which is an alternative to a sentence of full-time imprisonment.
These matters alone give the Tribunal no confidence that the Applicant has the willingness or ability to learn from the penalties imposed on him for breaking the law or the capacity to abide by the conditions placed on him.
In addition, the Applicant's poor history of communication with the Department of Family and Community Services and his insistence that the Department is to blame for the bad relationship between them gives no assurance that he will not repeat the aggressive behaviour of which he has been accused.
The Applicant's time with his son is required to be supervised, which of itself indicates that his behaviour impacts on his son. There is no evidence that this requirement for supervision will be removed in the immediate future.
The Tribunal must consider any information given by the Applicant (s 30)(1)(j)).
The Applicant provided a number of documents, including character references from his current partner and her adult daughter. Neither of those ladies provided an affidavit or gave oral evidence. There were several certificates showing that the Applicant had completed programs such as the Triple P Program and Bringing Up Great Kids, and even a first aid course.
One statement dated 5 September 2017 from Michelle Mayhew, a caseworker from Kempsey Staying Home Leaving Violence, dealt almost exclusively with the Applicant's current partner and barely mentioned the Applicant at all. It appears from the statement that the writer's knowledge of the Applicant comes entirely from the Applicant's partner and that she has no first-hand knowledge of the Applicant.
The Applicant stated that he had been receiving psychological counselling from Mr Allan Anderson, but he told the Tribunal that he had last seen him in either 2016 or 2017. He said that he went over to Diane Frost, psychologist, "because I wasn't getting anywhere with Allan". Ms Frost declined to attend to give oral evidence.
The Applicant's evidence has constantly minimised his involvement in matters of domestic violence. He has blamed his former partner and the Department of Family and Community Services for his difficulties with spending time with his son. He told the Tribunal:
"[My son] has been affected, not through myself, but through her [the child's mother] and her partner and the people she associates with."
It is curious, then, that the Applicant has chosen not to spend time with his son, even under supervision, for 8 months so that he can concentrate on his application for a Working With Children Check clearance.
There is evidence that the Applicant has been convicted on a number of occasions of domestic violence related assaults and has been subject to a number of apprehended domestic violence orders for the protection of one or other of his former de facto partners and, in at least one case, that partner's children. In some of these incidents, at least, there have been children present, and it is axiomatic that witnessing violence inflicted on other people is harmful to children.
The Tribunal also notes that on 29 July 1997, admittedly 21 years ago, the Family Court of Australia ordered that the six children of the Applicant's former de facto partner should not have contact with him.
The Applicant's history of antagonism towards the Department of Family and Community Services and the fact that the Department has decided that the Applicant's contact with his son must be supervised weigh heavily in the Tribunal's consideration that the Applicant poses a real and appreciable risk to the safety of children.
The Tribunal is of the view that the correct and preferable decision is to refuse the Application and affirm the decision of the Respondent not to grant the Applicant a Working With Children Check clearance.
Although it is not strictly necessary in view of the finding in the previous paragraph, The Tribunal will proceed to consider the matters referred to in s 30(1A) of the Child Protection (Working with Children) Act.
The Tribunal is not satisfied that a reasonable person would allow his or her child to have direct contact with the Applicant that was not directly supervised by another person while the Applicant is engaged in any child-related work
The Tribunal is also not satisfied that it would be in the public interest to grant the Applicant a Working With Children check clearance.
[6]
Order
1. The decision of the Children's Guardian made on 11 August 2017 not to grant the Applicant a Working With Children Check clearance is affirmed.
[7]
Endnotes
Referred to as FACS
Children's Guardian Reasons for Decision 11 August 2017
supra
sic
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 12 December 2018