The applicant, who is referred to as DTA, applied for an administrative review pursuant to s 27(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act) of a decision of the Children's Guardian, the respondent, on 14 February 2019 refusing his application for a working with children check clearance (WWCC clearance).
We are satisfied that the correct and preferable decision is to refuse the applicant's application for a WWCC clearance. Accordingly, we affirm the decision of the respondent.
[2]
Background
On 1 June 1952, the applicant was born.
In 1977 the applicant was married and in 1985 was divorced having had one daughter.
In 1994 the applicant married his current wife who was born on 21 April 1972. They have 3 children who were born between 1994 and 1997.
On 5 June 2001, an interim apprehended violence order was made against the applicant. The Police Report recorded that the applicant was alleged to have told his wife "Don't speak bad to the children or one day they will grow up and kill you." He was then alleged to have started to hit her on the back with a closed fist, before pushing her onto the kitchen floor and punching her in the mouth.
On 15 June 2001, an interim apprehended violence order was renewed against the applicant.
On 29 June 2003, the applicant was charged with assault occasioning actual bodily harm on his wife under s 59(1) of the Crimes Act 1900 (NSW) and an interim apprehended violence order was made against the applicant. The Police Report recorded that the applicant was said to have grabbed his wife's wrists and twisted them to get the keys from her hand. He then allegedly hit her across the face with an open hand and punched her to the top of her head with a closed fist. He then pushed her and threw the keys and remote across the room, before picking up the phone and striking her across the left side of her head. The applicant's wife tried to call police but the applicant allegedly took her phone from her, and threw her to the floor and pulled her hair. The applicant's wife escaped next door with the children and called police from a neighbour's house. She was said to have blood running down the side of her neck from being struck with the phone. The police observed dried blood. The applicant's wife said that the children had been "scared and frightened". The applicant was arrested and asserted that he was the victim and that his wife was very aggressive and abuses him. The applicant said that his wife had previously thrown furniture and other items, and also hurt herself. He said that she pushed him first and that he pushed her back. He also said that she hits her head and that she was the aggressor. He denied hitting her with the phone and said that he only hit her once across the left side of her face with an open hand. He said that he hit her because she was holding him and that he was trying to get away.
On 1 July 2003, the interim apprehended violence order was renewed against the applicant.
On 21 July 2003, the interim apprehended violence order was again renewed against the applicant.
On 6 February 2004, the Local Court at Blacktown dismissed the charge of assault occasioning actual bodily harm against the applicant when the applicant's wife did not appear.
On 7 August 2006, the police attended at the applicant's home. The police report recorded that the applicant was alleged to have walked into the bedroom whilst his wife was lying on the bed. An argument then occurred. During the argument, the applicant was alleged to have slapped his wife twice on the face and biting her on the arm. One of the children (then aged 11, 10 and 9 years) contacted the police who attended and noted a red mark to the applicant's wife's forearm.
On 15 November 2013, the applicant was granted a WWCC clearance.
On 5 November 2017, the applicant was charged with assault occasioning actual bodily harm and common assault on his wife under ss 59(1) and 61 of the Crimes Act 1900 (NSW). The Police Report recorded that the applicant and his wife were driving to a fast food store. They were arguing. During the argument the applicant allegedly struck his wife to the face with an open hand. She said, "No, you can't hit me." The applicant then hit her again with an open hand. Both got out of the car and continued to argue on the footpath, during which the applicant allegedly slapped his wife 2 more times to the face, causing a cut and a swollen lip. The applicant's wife allegedly retaliated by hitting the applicant in the face. A passer-by pulled up and intervened, telling the applicant to stop hitting his wife. The applicant drove off. His wife called their son to pick her up. They both returned home, where a verbal argument commenced. Their son was said to have called the police because he was concerned that another fight would occur.
On 6 November 2017, a provisional apprehended violence order was made against the applicant.
On 14 November 2017, an interim apprehended violence order was made against the applicant.
On 6 January 2018, the Parramatta Local Court noted that the charges of assault occasioning actual bodily harm and common assault of the applicant' wife and the associated application for an apprehended domestic violence order against the applicant were withdrawn due to the non-appearance of his wife.
On 15 November 2018, the applicant's WWCC clearance expired.
On 26 November 2018, the applicant applied for a WWCC clearance.
On 14 February 2019, the respondent refused the applicant's application for a WWCC clearance. In his reasons for refusal the Director of the respondent, having considered specified documents including information provided by NSW Police Force, information provided by NSW Family and Community Services and a psychological report dated 24 January 2019 of Mr Hugo Rodriguez, relevantly stated:
"Matters to be taken into consideration
In making an assessment of risk, the Children's Guardian has considered the documents referred to above and the provisions of sections 15(4) and 15(4A) of the (WWC) Act.
…
On 30 August 2018, the Office of the Children's Guardian contacted (the applicant). (The applicant) verbally advised that he required the WWCC clearance as his wife ran a children's day care from their home.(The applicant) advised that he remembered the incident from 2017 and stated that he and his wife were having a verbal argument only and denied physically assaulting his wife and stated that she is the one that can lose her temper and can become physically aggressive when they argue. (The applicant) stated that a witness did yell at them and showed concerned for both of their welfare as they were standing on the road near traffic. (The applicant) did not provide any explanation as to how his wife sustained a swollen lip and a cut to her face and did not demonstrate that he has any awareness of the potential impacts that his violent behaviours may have on children.
(The applicant) advised that he also remembered the incident from 2003. When asked as to how and why the complainant had blood pouring down her head from the alleged assault, (the applicant) advised that his wife had blood coming from her ear which was caused by one of her earrings being pulled out and that he did not strike her in the face with a phone. When asked how the complainant's earing was pulled out, (the applicant) advised that he could not remember. (The applicant) stated that one of his children was present during the incident and that he positioned this child behind him during the altercation so that he was somewhat protected. (The applicant) indicated that he was remorseful for putting any of his children in harm's way.
(The applicant) advised that he has worked for the Australian Pharmaceutical Services company for 20years (which is not child related) and that he has no interaction with any of the children at his wife's day care run from their home. (The applicant) stated that there has never been a complaint about him in the workplace or any disciplinary proceedings. (The applicant) denied any additional child-related employment experience and does not participate in any child-related voluntary or community activates.
…
The information from the NSW Police and FACS indicates that (the applicant) has engaged in multiple incidents of domestic violence, over a period of 16 years. Whilst it is acknowledged that (the applicant) has not been convicted of the offences from 2017 or 2003, the Children's Guardian holds concerns that (the applicant's) alleged violent behaviour is persistent and has occurred in a domestic setting. The domestic nature of (the applicant's) alleged conduct is particularly concerning given he requires the check for child-related employment which will occur in his family home.
Although (the applicant) has not assaulted a child, his children have been present during his alleged violent conduct and have attempted to intervene on multiple occasions, which is of concern. Whilst (the applicant)may not have had pre-meditated intentions to hurt his wife, (the applicant) has allegedly assaulted her on numerous occasions, and to date, (the applicant) has not undertaken any anger management courses or sought other types of intervention to mitigate such violence. (The applicant) has continually denied there being any domestic violence in his relationship and was not able to sufficiently demonstrate to the Children's Guardian that he is able to manage anger or stress appropriately and showed little insight into the effects that his behaviour can have on children.
Decision
The Children's Guardian is satisfied that (the applicant) poses a real and appreciable risk to the safety of children. For the reasons provided above, the Children's Guardian has refused to grant (the applicant) a Working with Children Check clearance pursuant to section 18(2) of the (WWC) Act."
[3]
Procedural history
On 27 February 2019, the applicant commenced proceedings 19/66178 against the respondent by filing an administrative review application.
On 28 March 2019, the Tribunal made orders for the hearing of the proceedings.
[4]
The hearing
At the first hearing day on 4 June 2019:
1. the applicant relied on the following written evidence:
1. his 2 statutory declarations declared on 16 January 2018 and 3 November 2018 and a series of references from current and previous employment;
2. his letter dated 14 January 2019 advising he had a psychological appointment;
3. 2 psychological reports of Mr Hugo Rodriguez (Mr Rodriguez), a psychologist dated 24 January 2019 and 27 April 2019;
1. the respondent relied on the following written evidence:
1. the documents filed on 11 April 2019 (pp 1-134);
2. the documents filed on 27 May 2019 (pp 1-132).
1. the applicant gave oral evidence;
2. we directed the respondent to provide the documents it relied upon to Mr Rodriguez.
At the second hearing day on 1 July 2019 the applicant and Mr Rodriguez gave oral evidence.
[5]
The statutory declarations of the applicant
The applicant in his statutory declaration declared on 16 January 2018 provided minimal information about the charges in 2003 and 2017. He stated that he did "not have a criminal history'' and that he was a "law abiding citizen". He did not address the alleged conduct and did not provide any evidence that he has engaged any services to initiate behavioural change.
The applicant in his statutory declaration declared on 3 November 2018 repeated the contents of his statutory declaration declared on 16 January 2018and provided details of his employment history and family history. He said "I never attended any counselling, psychological or other services".
[6]
The oral evidence of the applicant
In cross-examination, the applicant said at his house his wife ran a day care business on the ground floor and the family lived on the first floor. He would be present on occasions when children were there. He told Mr Rodriguez he had arguments with his wife, but could not recall what had happened with the 2003 charges because it was a long time ago. His wife lost her temper and could not control herself.
The applicant denied most of the allegations contained in the various police reports, but did admit hitting with wife with an open hand on 5 November 2017 when she poked him in the eye and that she suffered a swollen and cut lip. He said he was the victim. He agreed his son saw him hit his wife in 2003. He denied that a provisional apprehended violence order was made against him on 6 November 2017.
In answer to our questions, the applicant said he intends to remain living in his house and is employed outside the home in the mornings. He had been helping his wife in the day care business which had not been operating since his WWCC clearance expired on 15 November 2018. The family environment was now much better.
[7]
The psychological reports of Mr Rodriguez
In his psychological report dated 24 January 2019of Mr Rodriguez expressed the following opinions:
"Conclusions
Assessment of (the applicant) indicated that he possesses normal personality, cognitive and mental traits. His life style is typical of a person with no apparent psychological or mental conditions.
Overall, (the applicant's) background history suggested that he has typically functioned well in all areas of life; his background details are consistent with that of a person who is socially effective and generally satisfied with life.
The incidents of violence in the relationship were, in my opinion, the result of poor judgement due to heated arguments, and that (the applicant) never had pre-meditated intentions to hurt his wife or any of his children.
There are indications that (the applicant) has learned from these experiences. He shows appropriate insight regarding how to avoid similar incidents in the future.
Based on my assessment of (the applicant) I concluded that he does not pose a risk when dealing with children."
In his psychological report dated 27April 2019of Mr Rodriguez expressed the following opinions:
"Counselling incorporated Cognitive-behavioral strategies to assist (the applicant) manage impulsive responses more efficiently to avoid further incidents of domestic violence. He also responded positively to this regime, showing appropriate insight on how to control possible temper problems, and diffuse anger. There has been to my knowledge, no unduly domestic disputes since commencement of treatment.
As I commented in my previous report, (the applicant) does not suffer from undue psychopathology, and his life style is indicative of normal personality traits, thus suggesting that he should have appropriate skills to learn from this experience. In fact, I believe that this has been a powerful learning experience for him, having served as a warning to avoid similar problems in the future.
(The applicant) has, in my view, benefited from our sessions, and it is unlikely that further counselling may result in more gains. At this stage I am of the opinion that he does not present a risk to children in the house, and that it seems very unlikely that further incidents of domestic violence may occur."
[8]
The oral evidence of Mr Rodriguez
In cross-examination, Mr Rodriguez said he was aware of the expert code of conduct, and had relevant expertise as a registered psychologist. In preparing each of his psychological reports the only document he had was a mental health plan. He had had 7 sessions with the applicant, but was not able to recall very much of what had happened in these sessions. The applicant had been defensive in the beginning, but had opened up more in the later sessions. He talked about anger management with the applicant. He wanted to see the applicant's wife, but she would not come to sessions. He had browsed through the documents provided by the respondent. He agreed that if he had had these documents he would have been able to put the version of events of the applicant's wife to the applicant to test his veracity.
Mr Rodriguez was aware of the incident between the applicant and his wife in 2003, and that the applicant he had slapped his wife on the face in self-defence. He agreed that harm could be caused to children who witness violence between adults. His opinion was that the applicant would only be a risk to children if he had an argument in front of them. He stood by the opinions in his psychological reports. He did not agree that the applicant lacked insight into his behaviour. Even if the version of events of the applicant's wife was substantially true, he maintained his opinion that the applicant was not a risk to children.
[9]
The written evidence of the respondent
The written evidence of the respondent included the documents relied upon by the respondent in refusing the applicant's application for a WWCC clearance.
[10]
The oral submissions of the applicant
In his oral submissions the applicant drew attention to the following matters:
1. his wife had been providing child care for 14 years since 2005 without any problems, and he worked minimal hours to provide help to his wife;
2. his behaviour in question had occurred on 3 occasions when his wife had been under family pressures;
3. he had never had any anger problems in his employment or with his neighbours;
4. he had cooperated in Mr Rodriguez's treatment;
5. he was happy to undertake anything necessary to be granted a WWCC clearance.
[11]
The written submissions of the respondent
The respondent in submissions dated 27 May 2019, after setting out the background, the relevant legislation and the applicable legal principles:
1. addresses the matters in s 30(1) of the WWC Act:
2. submits that, whilst it is accepted that the applicant has committed no offences against children, there are a significant number of allegations of domestic violence over the period 2001 to 2017. The Tribunal would not conclude that these allegations are untrue, particularly given the differing accounts of the applicant in relation to the 2 most serious incidents in 2003 and 2017, and the documented injuries of the applicant's wife on those occasions. The most recent allegation is less than 2 years ago, and it was only recently that the applicant sought any treatment which comprised attending 7 sessions of therapy with Mr Rodriguez, a psychologist, which is too little time for the Tribunal to be confident of there being little risk of repetition of domestic violence by the applicant;
3. submits that the applicant poses a real and appreciable risk to the safety of children due to his continued risk of committing offences of domestic violence in the presence of children;
4. submits that the Tribunal would not conclude that either of the criteria under s 30(1A) of the WWC Act, namely the public interest test and the reasonable person test, have been satisfied;
5. submits that the Tribunal should refuse the application and affirm the decision of the respondent.
[12]
The oral submissions of the respondent
Counsel for the respondent substantially repeated the written submissions and drew attention to the following matters:
1. the applicant was evasive and not responsive in answering questions;
2. the applicant gave inconsistent accounts of the incidents in 2003 and 2017 to the police, the respondent, Mr Rodriguez and the Tribunal;
3. the apprehended violence orders in 2001, 2003 and 2017 indicate that the applicant has a continuing problem in managing his anger;
4. Mr Rodriguez's opinion was not reliable because:
1. he lacked the necessary expertise through training to provide an opinion;
2. he did not indicate he was bound by the expert code of conduct;
3. the applicant failed to disclose to him the full range of incidents of domestic violence;
4. both his psychological reports were prepared without all the available information;
5. his refusal to modify his conclusion when confronted with further information;
6. there had been too little time where there had been a history of domestic violence over 16 years for him to conclude his treatment had been successful.
[13]
Jurisdiction, relevant legislation and applicable legal principles
The object of the WWC Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: WWC Act, s 3. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the WWC Act: WWC Act, s 4.
The expression "risk to the safety of children" in the WWC Act is a reference to a real and appreciable risk to the safety of children: WWC Act, s 5B.
An adult person (other than an exempt person) who resides on the same property, which includes sleep on a regular or frequent basis anywhere on the property, as an authorised carer or on a property where a home based education and care service or family day care service is provided must hold a WWCC clearance or have made a current application to the for a clearance: WWC Act, s 10(1) when read with s 5A.
A person may apply to the respondent for a WWCC clearance: WWC Act, s 13(1). The respondent may conduct a risk assessment of an applicant for a WWCC clearance, and in so doing may consider the same factors that are set out in s 30(1): WWC Act, s 15(1), (4).The respondent must not determine that an applicant does not pose a risk to the safety of children unless the respondent is satisfied of the same matters that are set out in s 30(1A): WWC Act, s 15(4A).The respondent must grant a clearance to a person who is subject to such a risk assessment unless the respondent is satisfied that the person poses a risk to the safety of children: WWC Act, s 18(2).
Part 4 (which is comprised by ss 26-30) deals with reviews and appeals. A person who has been refused a WWCC clearance by the respondent may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of the decision within 28 days after notice of the decision was given to the person: WWC Act, s 27(1). An applicant must fully disclose to the Tribunal any matters relevant to the application: WWC Act, s 27(4).
Section 30 relevantly provides:
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 the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the offences or matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person's present age,
(h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred,
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
(i1) any order of a court or tribunal that is in force in relation to the person,
(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.
In determining an application for review, the Tribunal is to determine what is the correct and preferable decision having regard to the material before it including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1).The Tribunal may affirm the decision: ADR Act, s 63(3)(a).
Neither party bears an onus in an application for review under s 27 of the WWC Act: 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 (2006) 231 CLR 1 at [39]-[40].
The definition under s 5B of a "risk to the safety of children" draws upon the explanation given in relation to the word "risk" as it appeared in the former CPPE Act of "whether there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children": Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26]; CJT v Office of the Children's Guardian [2016] NSWSC 738 at [40].
In CJT v Office of the Children's Guardian, Fullerton J at [39] observed that the remarks of Young CJ in Eq about the meaning of risk in Commission for Children and Young People v V at [42] have "been consistently applied in construing the concept of a 'risk to the safety of children' for the purposes of ss 27 and 28 of the Working with Children Act".
In BKE v Office of Children's Guardian Beech-Jones J considered the approach to allegations that had not been proved, and noted that significant guidance could be derived from M v M(1988) 166 CLR 69, in which the High Court set out propositions for assessing risk to the safety of children in the context of Family Court litigation. Beech-Jones J at [30]-[33] held these propositions apply to the assessment of risk under the WWC Act and concluded that in some cases the Tribunal would not be able to make a finding as to whether the abuse in fact occurred or not. In those circumstances, circumstances maybe such that nevertheless there is a risk to a child.
In Office of the Children's Guardian v CFW [2016] NSWSC 1406 at [14]-[17] Harrison J summarised these propositions as follows:
"[14] The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application.
[15]The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to:
"… determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child's welfare."
[16] Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41].
[17] A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left "open", the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute."
In Children's Guardian v CKF [2017] NSWSC 893 at [56] Davies J observed with respect to the comments of Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406 at [16]:
"[56] With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or "a lingering doubt or suspicion" counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children."
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 in ZZ v Secretary, Department of Justice [2013] VSC 267, where Bell J [215]-[216] 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.
In CSW v Children's Guardian [2017] NSWCATAD 326 the Tribunal at [136]-[137] said a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal, and that person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Particular regard would be had to the unchallenged expert evidence (notwithstanding the respondent's submissions as to weight). A reasonable person whilst approaching the manner with some caution would in our view find that any risk was insufficient to cause them to have concerns about access to their child.
In CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 at [75] the Tribunal held that the concept of public interest gives priority to the broader interests of the community over private interests, and referred to ZZ v Secretary, Department of Justice where Bell J at [202] adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.
In ZZ v Secretary, Department of Justice Bell J at [202] referred to the relevance and importance of rehabilitating offenders. Bell J at [203] said:
"[203] In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others."
[14]
Assessment of the evidence of the applicant
We find that the applicant minimised the seriousness of the allegations of domestic abuse involving his wife over the substantial period of 16 years from 2001 to 2017. In important details he gave inconsistent versions of the events in 2003 and 2017 to the police, the respondent, Mr Rodriguez and the Tribunal. He portrayed himself as the victim of his wife's anger, and as having acted in self-defence. While we are unable to make positive findings on the balance of probabilities as to whether the applicant did or did not commit assault occasioning actual bodily harm on his wife in 2003, and assault occasioning actual bodily harm and common assault on his wife in 2017, the similar nature of these allegations has raised in our mind a real likelihood of similar acts of violence between the applicant and his wife occurring in the future.
We also find the applicant lacked insight into the seriousness of these allegations of domestic abuse involving his wife. Even If he was correct in his understanding that stress within his family had led to the expressions of anger by him, he did not appreciate how he might pose a risk to the safety of children who would be present in his house in the course of his wife's day care business. His lack of problems with anger at his work and with his neighbours does not demonstrate that he is not prone to anger and violence within his own family.
[15]
Assessment of the evidence of Mr Rodriguez
We reject the submission of the respondent that Mr Rodriguez lacked the necessary expertise by experience or training to give expert evidence, or his evidence should not be given weight because he had not agreed to be bound by the expert code of conduct. He is a registered psychologist. He clearly understood the nature of his obligations to the Tribunal as an expert witness.
However, having regard to the fact that Mr Rodriguez was not shown the material available to the respondent or informed of the extent of the allegations of domestic violence against the applicant by the applicant's wife, his lack of memory as to what happened in his sessions with the applicant and the relatively short time of 7 sessions over a period of approximately 3 months, we do not accept his opinion that the applicant is able to control his temper and diffuse anger.
[16]
Does the applicant pose a risk to the safety of children?
Having regard to our findings as to the factors in s 30(1) of the WCC Act (other than the factors in s 30(1)(i1), (j1) and (k) which are inapplicable), we are satisfied that the applicant does pose a risk to the safety of children.
[17]
The seriousness of the offences, the period of time since those offences occurred and the conduct of the person since they occurred (s 30(1)(a) and (b))
Two incidents of domestic violence were sufficiently serious to result in the applicant being charged with assault occasioning actual bodily harm on his wife in 2003, and assault occasioning actual bodily harm and common assault on his wife in 2017. In the 2003 incident the applicant was alleged to have struck his wife across the face multiple times with both an open and closed hand and struck her over the head with a phone resulting in her be bleeding. The incident occurred in the presence of their children, then aged between 6 and 8 years. In the 2017 incident the applicant was alleged to have struck his wife multiple times across the face with his hand during an argument in public, causing a cut and a swollen lip. The applicant made admissions of hitting his wife, but sought to blame his wife for causing the incidents. Both these incidents are objectively serious due to the repeated use of actual violence. The most recent incident in November 2017 occurred less than 2 years ago. While the applicant sought help from Mr Rodriguez for his anger issues, the treatment was relatively short, being 7 sessions over a period of approximately 3 months.
[18]
The age of the applicant at the time the matters occurred, the age of the victim at the time the matters occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the applicant and the relationship between them, whether the person knew the victim was a child and the applicant's present age (s 30(1)(d)-(g))
The applicant was aged between 49 and 65 years, and his wife was aged between 29 and 45 years, at the time of his alleged domestic violence. The difference in age between the applicant and his wife is approximately 20 years. The applicant is now aged 67 years.
[19]
The seriousness of the applicant's criminal record, the conduct of the applicant since the offences occurred, the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s 30(1)(h-i))
The applicant had no criminal record.
The evidence discloses a long history of alleged assaults of his wife by the applicant over 16 years between 2001 and 2017. The charges of assault occasioning actual bodily harm of his wife in 2003 and assault occasioning actual bodily harm and common assault of his wife in 2017, and the apprehended violence orders in 2001, 2003 and 2017 indicate that the applicant has a propensity to violence against his wife, and difficulties in controlling his anger. Were such incidents to reoccur, there would be the potential for a significant adverse psychological impact on any children present. Given that the applicant's wife wishes to resume operating a day care business in the house that she and the applicant share, this is a real possibility.
[20]
Information given by the applicant in, or in relation to, the application (s 30(1)(j))
The information provided by the applicant did not address the issue of whether he poses a risk to the safety of children. The 2 psychological reports of Mr Rodriguez do not adequately address this issue.
[21]
Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work (s 30(1A)(a))?
Given our finding in relation to the factors in s 30(1) of the WCC Act (other than the factors in s 30(1)(i1), (j1) and (k) which are inapplicable), the issues in s 30(1A)(a) of the WWC Act do not arise. However, if our finding that the applicant does pose a risk to the safety of children is erroneous, we are satisfied that a reasonable person with knowledge of the allegations of domestic violence by the applicant against his wife would not allow his or her child to have direct unsupervised contact with the applicant whilst he is engaged in child-related work. The reasonable person would have particular regard to the following matters:
1. the long history of alleged assaults of his wife by the applicant over 16 years between 2001 and 2017;
2. the potential for a significant adverse psychological impact on children witnessing domestic violence.
[22]
Is it in the public interest to make the orders sought by the applicant (s 30(1A)(a))?
If our finding that the applicant does pose a risk to the safety of children is erroneous, we are satisfied that it is not in the public interest to make the orders sought by the applicant because it is likely that the applicant will have contact with children in the course of his wife's day care business.
[23]
What is the correct and preferable decision?
We are satisfied that the correct and preferable decision is to refuse the applicant's application for a WWCC clearance. Accordingly, we affirm the decision of the respondent.
[24]
Non-publication of names
Pursuant to s 64(1)(a) and (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the Tribunal, if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, may make an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), provided that such an order is not inconsistent with s 65.
Pursuant to s 65(1)(b) and (2) of the CAT Act, there is a prohibition against publishing the names of certain persons, if the proceedings are for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) (CSCRM Act).Those persons are identified as a witness in proceedings, a person to whom any proceedings in the Tribunal relate, or a person who is mentioned or otherwise involved in the proceedings.
The term "community welfare legislation" includes the WWC Act: CSCRM Act, s 4(1). These proceedings are for a decision for the purposes of the WWC Act.
We are satisfied that it is desirable to make an order pursuant to s 64(1)(a) of the CAT Act prohibiting, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters. We have avoided referring by name to the applicant and members of the applicant's family and instead referred to them by reference to their relationships to each other, so as to preserve their anonymity.
[25]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 25 July 2019