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?
The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires:
the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.
- The reasonable person, for the purposes of s 30(1A)(a), is a person with knowledge of the matters before the Tribunal and privy to all the evidence before the Tribunal. The relevant question is whether a reasonable person, knowing what the Tribunal knows, would allow his or her child to have unsupervised direct contact with the applicant: DAR v Children's Guardian [2018] NSWSC 942 at [56]-[57].
- In CSW v Children's Guardian [2017] NSWCATAD 326 at [136]-[137], the Tribunal said a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal, and 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 find that any risk was insufficient to cause them to have concerns about access to their child.
- The information that a reasonable person would have to properly consider under the test in s 30(1A)(a) of the Child Protection (Working with Children) Act 2012 is all the evidence before us, as considered above.
- Having regard to all this evidence, and particularly the evidence of the applicant in these proceedings, in addition to the character references provided for him, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct unsupervised contact with the applicant whilst he is engaged in child-related work. The reasonable person would have particular regard to the following matters:
1. that the applicant was acquitted of all charges in relation to the allegations by JM;
2. the evidence of the applicant at trial denying he ever sexually assaulted JM;
3. JM's inability at trial to recall having reported the alleged offences by the applicant;
4. the applicant's oral evidence in these proceedings denying he assaulted BE as alleged;
5. the decision not to institute proceedings against the applicant in relation to BE;
6. the character references provided for the applicant describing him as trustworthy and honest, and the unchallenged evidence that he received a Premier's Award in 2013 for his work with youth in the NSW Police Dog Unit's puppy raising development program;
7. the applicant's long and positive history of involvement in his local sporting organisation;
8. Dr Nielssen's report that he did not identify anything in the applicant's clinical history or presentation to indicate any risk of harm to children who might be placed in his care in the course of his activities as a volunteer sports coach and hence did not recommend interventions to mitigate risk to children.
- Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would not allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work.