FYK v Children's Guardian

FYK v Children's Guardian - [2024] NSWCATAD 235 - NSWCATAD 2024 case summary — Zoe

[10]

Background and overview

The applicant is currently aged 53 and identifies as Aboriginal. In his Personal Statement, the applicant described his early childhood years as turbulent and volatile. His parents separated when he was very young, and he and his siblings lived with their mother who was an alcoholic. He described himself as being protective of his sisters from the age of 6, sleeping behind their bedroom door to prevent drunken men from entering the room and harming them.
Despite his disadvantaged upbringing, at the age of 19, he showed promise as a first grade football player.
Information about the applicant's work history between 1989 and 2012 is scant, although his Personal Statement confirms that at the age of 19, whilst playing first grade football, he commenced an apprenticeship as a cement renderer.
He has coached junior players (under the age of 14) as a volunteer in cricket and football from time to time, and it would appear that he undertook coaching commitments whilst still completing any community service orders against him in 2003, whilst also working as a painter.
He has four biological adult children with his ex-wife who is also the mother of another adult son. At various times, whilst in a relationship with his ex-wife, the applicant shared with her the care of his stepson.
The applicant's stepson became a Ward of the State in or around 2004-2005 (then aged around 14-15) and was placed in the applicant's sole care in 2006.
Pursuant to an Interim Order of the Family Court of Australia on 22 February 2006, the applicant's four biological children were ordered to reside with him.
In 2009, the applicant first met his now current wife in the context of her coordinating a course of education at TAFE equivalent to Year 10 of high school for his son. The applicant subsequently commenced a relationship with her. They started living together in 2013 and were married in 2018. The applicant's wife has one biological adult daughter who was 12 when she first met the applicant. This step-daughter lived with her mother and the applicant at various times, and she otherwise resided with her father who shared custody with the applicant's wife.
In the period 2012-2015, the applicant held a position as an Aboriginal Outreach Worker (Chronic Disease Management). He then worked as an Aboriginal Health Access Manager from 2016 to 2020. During the Covid-19 pandemic in 2020-2022, the applicant did not have formal employment but engaged in the provision of painting and decorating services. He subsequently provided services as a self-employed Cultural Consultant from 2022 to 2023.
From February 2023 until August 2023, the applicant was asked to step in as an interim CEO with an Aboriginal Land Council. On the applicant's own evidence, this was only ever intended to be a temporary position, alongside his work as a self-employed Cultural Consultant. After commencing in the CEO role, all staff were asked to have a working with children check clearance.
The applicant applied for a clearance on 4 July 2023, nominating "Entertainment for children" as the child related employment sector.
On 15 August 2023, the respondent notified the applicant that he was a "disqualified person" under s 18(1) of the Act, having become aware that the applicant had been convicted (as an adult) of a disqualifying offence as set out in Schedule 2 of the Act. The respondent advised the applicant that no clearance would be granted because of his disqualified person status and that he was barred from working with children for 5 years. The respondent also advised the applicant of his right to apply to the Tribunal for administrative review under s 28 of the Act.
Upon receiving this notification, the applicant immediately resigned as interim CEO.
A few days after receiving the respondent's notification, the applicant filed his application for administrative review with the Tribunal, within the timeframe permitted under section 27 of the Act.
The applicant has not worked since August 2023, although we note that he is engaged in a voluntary capacity with a TAFE officer to arrange for the delivery of a Certificate 3 in Guiding (Cultural Tourism) for a group of 15-20 people in his Aboriginal community who, once trained, will be eligible to find employment providing guided tours on significant cultural sites.
Pending the outcome of his application to this Tribunal, he has attempted to find employment that does not require a clearance. He asserted that his skills, cultural knowledge and experience are suited to positions that require a clearance. His motivation for a clearance is connected to what he considers to be a cultural obligation to share the knowledge that has been passed on to him by his elders and the skills that he has acquired, for the benefit of other Aboriginal people. He would like to do meaningful work in Indigenous communities which will likely bring him into contact with children from time to time, in relation to which he will require a clearance.

[20]

First limb of the two-part test under s 30(1A)(a) - the "reasonable person" test

The first limb of the two-part test is known as the "reasonable person" test. It requires the application of an objective standard based upon the views of the "reasonable person". It assumes that the "reasonable person" is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children's Guardian [2016] NSWCATAD 214 at [127]; CYY at [26]; PGR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 at [57].
The legislation in Victoria contains provisions similar to those in s 30(1A) of the Act. In VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 at [36] (VQB), the Tribunal held that an objective test was called for by the legislation: "… The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment a 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 approach taken in VQB was endorsed in NSW in CRG v Children's Guardian [2017] NSWCATAD 295 at [85] and DAI at [90]. In DAI at [91], the Tribunal said: "In order to properly consider this test, a 'reasonable person' would need to know about the disqualifying offence, the circumstances surrounding offence, the applicant's entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him."
As previously noted, a clearance cannot be made subject to conditions. Accordingly, the reasonable person test requires that the reasonable person permit direct, unsupervised contact of their child with the applicant in the course of any child-related work, and this includes not only the work for which the applicant is now trained or the work in which the applicant proposes to engage.

[21]

Second limb of the two-part test under s 30(1)(b) - the "public interest" test

The second limb of the two-part test is referred to as the "public interest" test. It requires the Tribunal, before making an order enabling the applicant to work with children, to be satisfied that it is in the public interest to make such an order.
The expression "in the public interest" was considered by the Federal Court in McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 per Tamberlin J at [9]: "The expression "in the public interest" directs attention to that conclusion or determination that best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances."
Additionally, the notion of "public interest" was addressed by the High Court of Australia in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 in which French CJ, Gummow and Crennan JJ said at [20]: "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."
The matters to be considered by the Tribunal in determining whether it is in the public interest to grant an order are not specified in the Act. However, guidance on the context in which "public interest" is to be considered can be found in Hogan v Hinch (2011) 243 CLR 506 at [31] per French CJ: "When used in a statute, the term derives its content from 'the subject matter and the scope and purpose' of the enactment in which it appears. The court is not free to apply idiosyncratic notions of public interest."
Accordingly, in proceedings under the Act, the "public interest" must be considered in light of the paramount consideration under s 4 of that Act, namely, to ensure the protection of children from sexual or physical harm.
The concept of public interest has been determined by the Tribunal on the basis of giving priority to the broad interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY at [75]. The "public interest" is thus the interest of the public at large, and not the interest of a section of the public or an individual which does not overlap with the public interest: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 (Sinclair) per Barwick CJ at [480].
As explained by the Court of Appeal in Victoria in Director of Public Prosecutions v Smith [1991] 1 VR 63 at [75], citing Sinclair: "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals."
When applying the public interest test, the Victorian Supreme Court has endorsed a broad and not a narrow approach: ZZ v Secretary Department of Justice [2013] VSC 267 (ZZ) per Bell J at [205]. While emphasising the main purpose of the Victorian legislation (equivalent to the NSW legislation) is the protection of children from harm, the decision in ZZ at [202] also acknowledged the relevance and importance of rehabilitating offenders and their right to work. The private interests of an applicant such as their right to work in their chosen area of employment are also a factor to be taken into consideration insofar as those private interests also have a broader community benefit as per Bell J at [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."

[24]

Victim's account

The victim's account was that she had known the applicant's sister and family (including, of course, the applicant) for approximately three years and she had often spent the night at their house.
Her written statement was dated 10 October 1989. It described a sleepover arrangement on 5/6 August 1989 at the applicant's home. She said that the applicant came home in the early hours of Sunday morning on 6 August 1989, having been out socialising from around 6pm the previous evening. Her expectation was that the applicant would sleep on the lounge when he arrived home, which explained why she occupied one of the single beds in his room. When she was woken with the light being turned on two hours after she had gone to bed and saw the applicant in the bedroom, she simply turned over and went back to sleep.
She said she was lying on her stomach when he pushed his hand under her chest and started to rub her right breast. She pushed away from his hand, but he rolled her over and continued to rub her breast. She told him to stop, and said that she was tired and wanted to go to sleep. She tried to move away from the applicant but he began to kiss her and threatened to rape her. She struggled to get away but the applicant moved on top of her, holding her to the bed. He was naked from the waist down and removed her track pants and underpants. Her evidence was that he had penetrative sex with her for what she thought was about three quarters of an hour. She said she didn't scream out for help because she was scared he might hit her or hurt her in some way.
She heard the sliding door in the loungeroom open and saw the loungeroom light was turned on. She said that the applicant also heard the sliding door and immediately got off her and hurriedly put his jeans on. He then sat on the other single bed for around ten minutes. He told her to "shut up" and not make any noise. She said she was really frightened and kept quiet. The applicant then threatened her that he would be "after her" if she told anyone about what had happened, and left the room. Her evidence was that she put her clothes on and laid in the bed for about an hour, frightened that the applicant would return and try to have sex with her. She eventually fell asleep.
The victim woke the next day at around 11am. She went to a friend's house with the applicant's sister and confided in her best friend, telling her about what she alleged had occurred. Her best friend subsequently provided a statement to Police that corroborated what the victim had told her. She said that the victim had said that she was not going to tell anybody else because she was frightened of what the applicant might do.
The victim initially was afraid to tell her parents, fearing that she would not be believed and that she would get into trouble. However, before the offence was brought to the attention of Police, the applicant appears to have found out that the victim had told others about the incident. He telephoned the victim on 9 October 1989, abused her using derogatory terms, told her that she was a liar and said that he was going to "come down and knock [her] block off".
The victim's father overheard her saying loudly on the phone (to the applicant) "Don't swear to me", following which she disclosed to her parents what had occurred. She then was accompanied by her father to the local Police station where she disclosed the alleged offence to police.
The applicant was charged on 11 October 1989.

[28]

Applicant's defence arguments regarding the Disqualifying Offence

The applicant has maintained his innocence of the Disqualifying Offence. In his written submissions in these proceedings, he asserted that it is unusual for a young woman to be fearful about telling a parent about a traumatic sexual assault and that she feared she would not be believed.
He also contended that it was questionable that a young man could sustain an erection for 45 minutes and that the victim was not physically injured in circumstances where she was objecting to the alleged act. Further, he submitted that the victim's behaviour was unusual insofar as she was scared and frightened, but eventually fell asleep and arose the next morning at around 11am.
In his Personal Statement, the applicant questioned the competence of his legal representative in the criminal trial. He said that he had applied to the Aboriginal Legal Service for assistance to appeal his conviction but was told that they had no funding to launch an appeal. He stated that he had only received for the first time the victim's statement against him when he saw the evidence filed on behalf of the Children's Guardian in these proceedings. He also said that he saw, for the first time, the bail report which inaccurately described him. He asserted that this, together with the victim's implausible claims, were not appropriately addressed by his legal representative in the criminal trial. He also asserted that he now fully appreciates the disadvantage that he was subjected to and said that he finds this devastating.
The applicant's oral evidence to this Tribunal was that the whole experience had been traumatic and he does not have a good recollection of events. He also stated that he was a 19 year old but "still a child", and unaware of the judicial system and how it operated. His memory of the criminal trial was very poor, such that he could not remember what his legal representative said to the Court. He could also not remember what he said, except that he believed the allegation was a "fallacy", made up by "a young girl". He denied that he had sex with the victim, but admitted that he spoke to her and called her a "liar", in circumstances where she and her father arrived at his house and threatened to assault him. He denied that he had threatened the victim.

[30]

Tribunal's analysis and finding

Firstly, we accept that the applicant's assertions that he had not previously seen the victim's statement or the bail report, and that this would have been disturbing to read for the first time and in the context of his application before this Tribunal. We do not have the transcript of the criminal trial and therefore we do not have insight into the reasoning behind the applicant being sentenced to 15 months detention rather than a custodial sentence. However, as submitted on behalf of the respondent, the applicant did not provide persuasive material to this Tribunal about what could or should have been done differently to establish reasonable doubt about the allegation, and potentially avoid a conviction.
On the material before us, the victim's statement gave a clear and plain account of the alleged offence. Her description of the amount of time during which the applicant penetrated her was an estimate, and she qualified her statement by saying "It may not of (sic) been that long but I was frightened and it seemed like it went forever". In the circumstances where the victim was a 16 year old girl experiencing the threat of a sexual assault and then enduring the trauma of an unwelcome sexual act perpetrated by a person who was a member of a family she had known and presumably trusted for three years, it is entirely plausible that her perception was that the assault took so long.
We agree with the respondent's submissions that there was nothing so unusual in the victim's behaviour immediately following the sexual act or the following morning as to cast doubt on the safety of the conviction. In circumstances where she felt afraid and had been threatened with further physical violence if she told anyone about what had happened, it is not extraordinary that it took her an hour to fall asleep. It is also not so unusual or extraordinary that she then slept until 11am the following morning.
The best friend's statement about her conversation with the victim on the morning after the alleged assault is generally consistent with the victim's account to both her friend and eventually to the Police. It contains similar references to the sleeping arrangements, the light being turned on in the bedroom, the victim's rejection of the applicant's advances, the applicant's threat to rape the victim, another light being turned on in another room, and the victim's fear about telling anyone else about what had occurred. However, the witness' statement simply provides confirmation of what the victim told her had occurred.
Noting the victim's expressed fears about being believed and about what the applicant might do, we do not find the period of around two months, between the alleged sexual act and her disclosure to police, to be inordinately long.
Based on the applicant's conviction and the evidence before us, we accept that sexual intercourse occurred under threat of rape and that the victim did not consent to the sexual act. The act appears to have been opportunistic and not within the dynamics of a prior relationship between the applicant and the victim. We are obliged to take into account, when assessing the applicant's risk to the safety of children, that the victim was aged 16 and 4 months, and therefore a child within the meaning of the Act.
Against that, we have had regard to a number of factors in the applicant's favour to which we have given a substantial amount of weight. These include the significant passage of time since his conviction (34 years) and the fact that he has not been charged with a criminal offence of a sexual nature in that period of 34 years. Further, all subsequent offences for which he was convicted relate to adults and not to children. His breach of periodic detention was not a violent offence and the applicant has demonstrated insight into his self-destructive conduct at the time. We accept his statement of feeling ashamed about that time in his life as a genuine expression of remorse, underpinning his subsequent efforts to rehabilitate.
We also place a substantial amount of weight on the applicant's demonstrated reformation of his life for a lengthy period of 20 years and upon Dr O'Dea's expert opinion that the applicant has a relatively low risk of further sex offending and that his denial of the offence is not a predictor of further sex offending. Both the applicant's rehabilitation and the expert report are discussed in our assessment of the applicant's likelihood of re-offending.

[32]

Convictions

Behave in offensive manner and common assault, May 1998

On 30 May 1998, the applicant was charged with behaving in an offensive manner in or near a public place, and common assault. He was convicted on 15 July 1998 for behaving in an offensive manner and fined $150.00. The charge of common assault, which the applicant could not remember anything about, was dismissed.

Common assault and destroy/damage property, September 1998

On 12 September 1998, the applicant was charged with common assault and "destroy or damage property." He was convicted on 13 January 1999 of both offences and received a fine of $500 and a three-year fine in respect of the assault, and a fine of $250 for property damage, plus Court costs.
Under cross-examination before this Tribunal, the applicant said he could not remember the circumstances that gave rise to the charges and conviction.

Resist Officer in execution of duty, assault Officer in execution of duty, common assault and intimidate Police Officer in execution of duty, January 2001

On 26 January 2001, the applicant was charged with a number of offences for which he was convicted in the Local Court on 14 September 2001, and received prison sentences. On appeal to the District Court, his sentences for "Resist Officer in execution of duty", "Assault Officer in execution of duty", "common assault" and "Intimidate Police Officer in execution of duty" were variously reduced to a community service order for 200 hours, and bonds for 12 months and three years to receive alcohol and drug treatment counselling.
Under cross-examination, the applicant said he had engaged words and punches with another patron. The applicant was arrested, and the arresting Police Officer asserted that the applicant had used a threatening motion to run his finger across his throat and threatened to kill the Police Officer. He said that to the best of his knowledge, he had not run his finger across his throat. His evidence was that he had been drinking in a pub to the point where he was "drunk, off [his] head", and was subsequently arrested.
The applicant did not deny that he had become extremely abusive, using offensive language, as set out in a written statement by Sergeant Threlfall. He could not recall what he said to Police but conceded it had been a heated conversation driven by his intoxication. He could not deny that he said the things alleged by Sergeant Threlfall, including "I know your name now [offensive language]. I'll find where you live and bash you" and "I'll find you [offensive language] and kill you. Wait till I get out of here, I'm gunna punch the [offensive language] out of you."
The applicant acknowledged he had been "power-drinking", and explained to the Tribunal that this meant he was drinking to knock himself out and distance himself from any reality whatsoever. He said he had begun to use marijuana and he also tried speed and Serepax in 1990-1991. The applicant's evidence was that in the decade that followed he entered into an abusive alcohol-fuelled relationship with his first wife which was accompanied by physical violence. He acknowledged that he had hit his wife at times, and he was not proud of his conduct. He said he sobered up and first started to leave the marriage in 2000/2001, and in 2003 he had distanced himself fully from the relationship.

[35]

Police reports where no charges laid

Police report of argument and alleged assault, October 1996

On 27 October 1996, at the age of 26, the applicant was alleged to have become embroiled in an argument with a 32-year-old male with whom he was drinking alcohol, and hit him several times to the face, causing a small laceration and several bruises. The Police file note refers to the victim as being the brother of the applicant's ex-wife from whom the applicant had been separated for around 6 months at the time. The victim declined to give a statement and said he did not want any Police action against the applicant. The applicant's ex-wife told Police that she had argued with the applicant but she had not been assaulted.
The applicant was not interviewed and was not charged.

Police report of argument, October 1999

On 23 October 1999, at the age of 29, the applicant was alleged to have abused and sworn at a person with whom he was in an "on and off domestic relationship" for the previous 7 years and from whom he had recently separated. According to the Police report, the victim (assumed to have been the applicant's ex-wife) had refused the applicant's request for money to buy a travel ticket, believing that he wanted the money for gambling. The victim threatened to call the Police and the applicant left before they arrived.
The applicant appears to have not been interviewed, and was not charged.

Fighting in a pub, January 2001

Police were called to a tavern on 13 January 2001 where the applicant asserted that a patron wanted to fight him. The Police spoke with another male who was moderately intoxicated at the time and had a cut to his lip.
The cause of any argument between the parties was not identified and neither party wanted to make a complaint.

Allegation of verbal abuse, June 2003

The applicant was alleged to have been verbally abusive to his 55-year-old neighbour on two occasions in June 2003. He was alleged to have called her a "[offensive language] slag". The victim asserted she was fearful of the applicant as he was walking with a can of petrol in his hand.
The following day, on 28 June 2003, another Police report noted an altercation with possibly the same neighbour, and involving some children who were playing on the front lawn. It was alleged that the children were saying threatening things toward the neighbour.
According to notes made by the Department of Corrective Services in during the period from May 2023 to January 2024, the applicant had relationship problems with his ex-wife, there were numerous matters regarding Apprehended Violence Orders being applied for, his son had health problems requiring attention, and he experienced "a lot of conflict" with neighbours surrounding where the applicant was residing. The applicant was encouraged to accept a housing commission relocation if one became available. The DCS notes recorded that, ultimately, in January 2004, adjoining neighbours either side of the applicant's home had either moved out or been evicted and the applicant's relations with other neighbours had improved.
The applicant contended in submissions that his verbal abuse was in response to racially discriminatory taunts and threats he and his children had regularly received from the neighbour. In submissions, he said he was sorry for reacting in the manner that he did at the time and acknowledged he had responded inappropriately.
The Police reports note that the applicant was "spoken to", and there was no further investigation. No formal action was taken.

[49]

The applicant's history of alcohol and drug use

In response to questioning about his drinking and drug-taking, the applicant said he was ordered by the Court in 2001 to abstain from drinking alcohol and entering licensed premises within the local area. His evidence was that he stopped drinking in 2001 and, to the best of knowledge, he has not drunk any alcohol since that time.
As to his drug-taking, he said he used marijuana sporadically after 2001, although to a lesser extent than previously. He made a distinction, stating that he stopped abusing drugs in 2001 but he still used marijuana once or twice a week. His evidence was that he does not take marijuana socially and he has recently commenced taking prescription marijuana under a doctor's direction.
The applicant's oral evidence was that he had undergone some relationship counselling which also assisted him to consider the impact of his use of alcohol and drugs upon the relationship. He said that he had not had psychiatric or psychological care and had not attended a rehabilitation service to assist him in staying free of alcohol and drugs, although he had engaged with a counsellor on the recommendation of the Department of Corrective Services in late 2003.
Dr O'Dea noted that substance use disorders, particularly long standing and significant substance use disorders, are often relapsing conditions. He thought that the applicant's history may point to him having a cannabis use disorder and an alcohol use disorder. However, Dr O'Dea stated that if the applicant remained abstinent from alcohol use for the last 20 years, his prognosis "may be considered favourable". He also stated that if the applicant were to remain compliant with a cannabis maintenance therapy program, then his prognosis may also be considered favourable.
Setting aside the applicant's history of alcohol and cannabis abuse, and based on the information provided to him, Dr O'Dea considered the applicant's history "would not be conclusive" of the applicant suffering a "major psychiatric illness".

[53]

Any information given by the applicant in, or in relation to, the application: s 30(1)(j)

In support of his application, the applicant filed a personal statement from his wife and five character references.
The statement from the applicant's stepdaughter attests to the applicant having been a consistent source of support, care and guidance in her life (from the age of 12 and she is now around 23 years of age). She said that the applicant had proven himself to be "an example of a positive, safe and trustworthy role model" in her life. She also attested to his rehabilitation, stating that he has overcome barriers and obstacles to transform himself into a "kind, compassionate, and empathetic individual he is today." Whilst this document only makes a broad and oblique reference to the applicant's "obstacles", we accept that the stepdaughter has intimate knowledge of the applicant's criminal background. We make an appropriate discount on the weight to be given to the statements because of the nature of her familial relationship with the applicant. However, we do not discount them entirely and some of her statements have relevance when considering the "reasonable person" and "public interest" tests.
The reference from Mr BW, a friend and former work colleague in a health related Aboriginal medical service and subsequently the Aboriginal Land Council, attested to the applicant's rise to the level of management and his leadership skills. Having known the applicant for 10 years, Mr BW described the applicant as demonstrating "fairness and honesty". Since this reference made no reference to the applicant's criminal history (and we acknowledge the applicant's expressed concerns about previous colleagues having such knowledge), we have only afforded a small amount of weight to this reference. We do not, however, discount it entirely since it affirms matters relevant to the "public interest" test.
Ms KD, another friend and former colleague of the applicant in connection with his work as an Aboriginal Health Manager, provided an undated personal reference. She has known the applicant for 10 years and attested to his commitment to advancing the rights and wellbeing of people, and that he earned the respect and admiration of those who worked alongside him. For the same reasons as noted above with respect to the reference from Mr BW, we have afforded a small amount of weight to Ms KD's comments. Her reference, however, also affirms matters relevant to the "public interest" test.
A reference from Ms BF refers to her experience of working as an Aboriginal Health Access Officer under the applicant's management from 2018 to 2020. Ms BF attested to the applicant's high standards of professional conduct. She described him as being "highly organised, passionate, friendly, approachable, disciplined" and "results oriented". Again, for the same reasons as noted with respect to the references from Mr BW and Ms KD, and noting the relatively short period of time that she worked for the applicant, we have given only a small amount of weight to Ms BF's reference.
Another reference (undated) provided by Ms JG who worked under the applicant's management from 2018 to 2021, attests to his leadership, strong work ethic and dedication. Additionally, she said that what set the applicant apart from others was his "impressive mentorship approach" as a manager. In her opinion, the applicant's unique perspective enriched the organisation and encouraged a more inclusive and culturally sensitive approach to their work. Whilst only a small amount of weight is placed on this reference, her comments validly support the "public interest" test.
We have already referred to the personal statement provided by the applicant's wife. We obviously discount the amount of weight to be given to the statement because of her intimate relationship with him. However, her statement is highly articulate, reflective of her education and acuity of mind. It also reflects an insightful assessment of a man who met her in circumstances where he was acting protectively towards his son, seeking to find alternative education opportunities for him, to overcome his disabilities. We have taken into account her statements that the applicant conducts himself in a manner that is respectful of women, and that she left her daughter in the applicant's care on many occasions. There is nothing in her statement that causes us to doubt its sincerity and we place a moderately appropriate amount of weight upon it since the applicant's wife witnessed first-hand the applicant's rehabilitation.

[56]

Whether the applicant is honest and truthful in his responses

In this application, the applicant is required to displace the presumption that he poses a risk to the safety of children. He has a statutory obligation under s 28(5) of the Act to fully disclose all relevant material to the Tribunal. His honesty is critical to displacing that threshold presumption and therefore to our decision-making.
The applicant was asked about his response dated 6 September 2023 to a letter from the Crown Solicitor's Office in connection with his application for a working with children check clearance. In response to a question as to whether he had been involved in any community or voluntary organisations including sporting groups or social clubs, he had written "No". However, in these proceedings, he gave oral evidence that he had coached football clubs on a volunteer basis in two particular locations, and also said that he had not completed any paperwork or been asked about his criminal history in connection with those engagements. We note that the time period for this volunteer coaching was not queried or clarified in cross-examination, although notes made by the Department of Corrective Services in November and December 2003 record that the applicant was at that time engaged in coaching juniors in cricket and football. It was suggested to the applicant in cross-examination that he had not been truthful in his response to the Crown Solicitor, having regard to a possible inconsistency with his oral evidence.
The applicant's explanation was that there was no definite period to which the question related in the Crown Solicitor's letter, and he had assumed it was a question about his involvement with coaching since 2012. He said that he may have mis-read the question, but strongly denied the suggestion that his answer to the Crown Solicitor's letter was a deliberate attempt to "cover up", and said that he had not put anything in his response to hide anything.
We observe that the relevant question (e) posed in the Crown Solicitor's letter concerning involvement in any community or voluntary organisations does not refer to a specific period of time, whereas two previous questions requested details in the "last 10 years". However, another question (f) was not time-specific and asked whether the applicant had "ever been" the subject of any complaints or disciplinary proceedings with any community or voluntary organisations. The applicant also answered "no" in his response to that question.
We found the applicant to be frank and open in disclosing matters to the Tribunal. For instance, he gave oral evidence about the context in which he first communicated with the Children's Guardian, to enquire about the process for applying for clearance and the likelihood of being granted clearance in light of his 1990 conviction. He said he was advised that he would have to apply, and then appeal his "disqualified person" status. He subsequently responded to the Crown Solicitor's request for details of various matters as discussed above. Having regard to the applicant's evidence that he had never completed any paperwork in relation to coaching in football clubs and his awareness that a review of his criminal record would disclose his most recent conviction in 2012 for making a false declaration, it is plausible that the applicant considered the question in the context of events since 2012 and we find that his answer "no" is not necessarily inconsistent with his oral evidence. We found the applicant to be a truthful witness, and forthcoming with information to disclose his thinking at the time of responding to the Crown Solicitor's letter.
Overall, the applicant's presentation of his case and his demeanour impressed the Tribunal members that he is a humble and deeply remorseful man who appreciated acts of kindness towards him that catalysed him into reforming himself. He was deeply embarrassed by his conviction for rape and his violent behaviour during a 10 year period. He impressed us as a man of deep compassion, such that he recognised unsolicited demonstrations of compassion towards himself and took steps in 2003 to turn his life around. In 2013, he started living with his (now) wife, and his criminal record since that time is entirely free of any convictions. That step, in our view, was a powerful protective factor in his overall reformation. In our assessment, the applicant is a different person from the person who was convicted of rape and had a criminal history of violence in a period of his life defined by a toxic relationship and alcohol misuse. Since 2003, he has not perpetuated those behaviours. He is motivated to make a contribution to the community, in particular the Indigenous community, because many members of that community have expressed confidence in him and have urged him to continue in roles relating to Aboriginal health. A working with children check clearance would enable him to do that.

[57]

Overall evaluation of risk

On the basis of the overall evidence before us, we find that the applicant has displaced the presumption in s 28(7) of the Act, and this Tribunal is positively satisfied that he does not pose a risk to the safety of children. In summary, our reasons are: 1. the significant passage of time (34 years) since the Disqualifying Offence and the applicant's continued denial of that offence; 2. that there are no other complaints, charges or convictions for offences of a sexual nature in the period of 34 years since the Disqualifying Offence; 3. that none of any further criminal charges or convictions against the applicant relate to children; 4. Dr O'Dea's expert opinion that the applicant falls into the group of individuals with a relatively low risk of further sex offending and that the applicant's continued denial of the Disqualifying Offence does not, of itself, predict further sex offending; 5. that the period from 1989 to 2003 in which the applicant's criminal record shows convictions for aggressive and abusive behaviour was associated with a toxic relationship with his ex-wife, accompanied by alcohol and drug abuse; 6. that the applicant has demonstrated sincere remorse for his criminal conduct after the Disqualifying Offence and genuine insight into the causes and effect of his conduct; 7. that the applicant's conduct during the past 20 years (with the exception of his conviction in 2012 for making a false declaration) outweighs his criminal record in the period from 1989 to 2003. He extricated himself from his turbulent relationship with his ex-wife and embarked on a program of rehabilitation which includes not drinking alcohol since 2001 and not abusing drugs since 2003 (and is considered by Dr O'Dea to have a favourable prognosis); 8. that the applicant has been living in a stable, loving relationship with his wife for more than a decade, and we consider this to be a powerful protective factor; 9. that the applicant is protective towards children, having been awarded custody of his own children by the Family Court of Australia and his step-son in 2006, and having also assisted in raising his step-daughter and now supports his daughter in raising a grandchild.
Accordingly, we are minded to make the enabling order requested.

[60]

"Public interest" test

Under s 30(1A)(b) of the Act, before making an order which has the effect of enabling a person to work with children in accordance with that Act, the Tribunal must also consider whether it is in the public interest for the applicant to be given a clearance.
The applicant enjoys the confidence of a number of his previous colleagues and is highly regarded for his cultural knowledge, leadership skills and experience in Aboriginal communities.
We have taken into account the following statement in the reference provided by the applicant's stepdaughter: "[The applicant's] deep connection to his Aboriginal heritage and culture is a defining aspect of his identity. He possesses a profound understanding of the importance of preserving and passing on these traditions to the next generation. It is for this reason that he would be an invaluable peer mentor for young people, particularly those from Aboriginal backgrounds. [The applicant's] ability to work within an environment where he can utilise his mentorship skills, to provide crucial guidance and support (sic) young people who are navigating their own challenges and seeking (sic) strengthen their connection to their culture, would be a significant benefit for the local indigenous community he is a part of."
We have also taken into account the statement by BW, one of the applicant's friends and former colleague in an Aboriginal medical service and subsequently an Aboriginal Land Council. In connection with the applicant's work with the Aboriginal Medical Service, BW wrote: "For [the applicant], this was a difficult and challenging role where he was tasked with the responsibility of providing key funding and assist those services to develop their internal roles such as Aboriginal health workers who worked better to target local community health issues. …. [The applicant] is a strong cultural man within his community, he is rich in the knowledge of Indigenous ways of knowing and being, to which, he selflessly shares with everyone including myself."
Statements by another referee, Ms KD, describe the applicant as a "distinguished" and "standout" leader in the Aboriginal community. She attests to his contribution to drive positive change for both Indigenous and non-Indigenous people: "[The applicant's] passion and dedication as a strong advocate for Aboriginal people have been instrumental in driving positive change within the community. His comprehensive understanding of culture, traditions and values serve as a foundation for him as a community leader, allowing him to build meaningful connections with both Indigenous and non-Indigenous people alike."
Another referee, Ms JG, made the following statements which attest to the community benefits to be achieved because of the applicant's impressive cultural knowledge and genuine motivation to use it: "[The applicant] consistently went above and beyond to ensure our team's collective success, and inspiring others with his strong work ethic and dedication. [The applicant] actively led and participated in numerous initiatives aimed at empowering Aboriginal communities across [three identified] regions. His involvement in cultural events, workshops, educational and health programs was also instrumental in enhancing non-Aboriginal people's knowledge and cohesion with local Aboriginal communities. … [The applicant's] cultural knowledge spans various aspects such as history, Country, traditions, protocols, ceremonies, storytelling, artwork, and language. Every interaction with [the applicant] further solidifies his genuine connection to and commitment for preserving and sharing these invaluable cultural aspects."
Consistent with the decision in ZZ, we recognise the relevance and importance of the applicant's ongoing rehabilitation and his right to work in his chosen area of employment where he can apply the skills and experience acquired during his work (both professional and voluntarily) in the Aboriginal community sector. We take this into consideration since his desire to undertake work of that nature will also deliver a broader benefit for the community.
The Tribunal considers that in the absence of any risk to the safety of children, there are no clear public interest considerations to suggest that it is not in the public interest for the applicant to be granted a clearance.
We are thus satisfied under s 30(1A)(b)that it is in the public interest to make the enabling order and for the Children's Guardian to issue the applicant with a clearance.

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