14 September 1994 - discharge missiles/stone to injure/danger - Melbourne Magistrates Court - convicted and fined $150 and on the same day behave in offensive manner in public place convicted and fined $100. The matters were heard ex parte.

1. Mr McIntyre gave evidence that he left a nightclub in an intoxicated state. He recalled throwing a bottle toward a bin.

2 April 1993 - breach intervention order and wilfully damage property - Lilydale Magistrates Court - two months imprisonment on each charge sentence suspended for 12 months

1. Mr McIntyre gave evidence that he attended his home in breach of an intervention order and kicked the front door of his home. He had an altercation (pushing) with his mother.
2. Mr McIntyre's mother has Huntington's Chorea disease which affects balance, memory and her ability to cope. After his parents split up, Mr McIntyre became his mother's support as her condition deteriorated. This offending placed Mr McIntyre in breach of the bond he received for the sexual penetration charges. A relative gave evidence during Mr McIntyre's County Court appearance on 3 June 1994. She described Mr McIntyre's mother's "hysterical mood swings" ,"abusive one minute, loving the next and throwing the children out sometimes and then not allowing them to visit their father..." She said:

Adam was left, really, to look after the mother. The mother lost her house, somehow to a friend.... The friend managed to end up owning the house and had them evicted... They have been evicted several other times from accommodation, all of which has been left Adam to organise removalists and to try and hang onto what was in the house. No one else - the other two children were totally uninterested, as was the ex-husband and the father. At the same time the mother would ring the police - if they have had an argument, she would ring the police and ring the father and ring me and ring the relatives of the marriage complaining and screaming about Adam and his behaviour. Then she would have restraint orders issued and then a day or two would go by and she'd ask him to come back and after a few days, she ring the police again and claim that he had broken the restraining order. So I mean, I've only observed all this, but it must've been incredibly difficult to remain slightly sane living with this ongoing deterioration... She really seeks to destroy Adam for some reason I don't understand it all, but I think it's because he's the only one accessible and in her own misery, he's the one that is always there to hurt.

1. Having heard this evidence, His Honour Judge Villeneuve-Smith engaged in a discussion with the witness. Thereafter, he indicated that he accepted the complexity of the situation and determined not to take any further action for the admitted breaches.

23 September 1992 assault police/person assisting police - Ringwood Magistrates Court - convicted and fined $250 and (i) 23 September 1992 drunk in a public place - Ringwood Magistrates Court - convicted and fined $50.

1. These matters arose from one incident. Mr McIntyre gave evidence that the police were arresting a friend of his. Mr McIntyre was upset that they were doing so for racist reasons and he yelled at the police who were affecting the arrest. Mr McIntyre was intoxicated. In due course, he too was arrested for being drunk, at which stage he grabbed the police officer with both hands on his jacket and pushed him backwards onto the car.
2. This offending also breached Mr McIntyre's 2004 bond. Once again, His Honour Judge Villeneuve Smith after hearing the evidence, summarised what he accepted as the extent of the offending and said to Mr McIntyre's counsel:

What you are saying is that he had too much to drink and he behaved foolishly?... I accept all that.

1. Once again, no further action was taken on the breaches.

27 September 1991 breach intervention order - Lilydale Magistrates Court - $100 good behaviour bond.

1. As previously described, Mr McIntyre's relationship with his mother was a challenging one. On the one hand, she wanted him with her; on the other she would ask him to leave and put intervention orders in place to stop him attending the home. On this occasion, Mr McIntyre gave evidence that he returned home in breach of an intervention order to collect personal belongings as he was living on the street.

6 May 1991 - sexual penetration with child between 10 and 16 (two charges) - Melbourne County Court - released for three years on $300 good behaviour bond.

1. This matter has already been described in considerable detail.

28 September 1990 - burglary and theft - Lilydale Magistrates Court - 2 months good behaviour bond with order to pay $200 to the Court fund.

1. The details of this offence were unclear. I was not surprised by this given the passage of time. It is not relevant to my consideration of this matter. There has been no further like offending.

1. The DHHS material shows a number of protective concerns that were investigated by DHHS between 1996 to 2004. The way the material is presented is somewhat disjointed. The circumstances of some of the notifications are unclear
2. Nevertheless, two disturbing incidents involving children are described at length in the materials - the incident involving the breaking of Mr McIntyre's daughter's leg which has already been the focus of my discussion and another involving Mr McIntyre's son. Mr McIntyre's wife alleged he burped the child too hard. The documents show that the Bail Justice who initially heard this matter formed the view that there were not sufficient grounds for the removal of the child because he did not accept that Mr McIntyre had inflicted any abuse. The DHHS workers however remained concerned about the child, largely due to Mr McIntyre's criminal history. In due course the protection application was, withdrawn. Mr McIntyre agreed to attend a family support worker.
3. Other notifications were closed, due to a lack of corroborative evidence. There are broad-brush statements of concern about "possible physical abuse" none of which were seemingly borne out by any evidence as there are notations on the file that Doctors were not concerned and that physical examinations of the children revealed nothing unusual.
4. A case plan prepared on 29 December 2004 reads:

The children were placed on supervision order on 18 November 2014 and remain in the care of their father. This followed the separation of Mr and Mrs McIntyre. It was assessed that the children's stability and routine was of most importance and child protection supported Mr McIntyre in having all children reside with him and attend the same school. The children appear to be adapting well to the change and positive feedback has been obtained from the school in relation to [children's] attendance lunches and behaviour.

1. Mr McIntyre gave evidence, which I accepted, that his engagement with DHHS was initially somewhat negative - he felt the investigating officers always assumed the children/family may be at risk from him. In due course he said, he was able to show that he was a competent, good parent, such that DHHS ultimately supported him.
2. I read a reference from Mr McIntyre's daughter in which she spoke positively about him; describing Mr McIntyre as a "huge teddy bear" who is nice but firm. She said she always looked up to him and that even when he broke her leg she was not afraid of him. She was present in the hearing room with one of her brothers.
3. Mr McIntyre attended an anger management course as directed.

1. Mr McIntyre's children have reached, or are reaching, adulthood. Three of his children continue to reside at home.
2. Mr McIntyre has undertaken further education by way of an Agriculture Certificate III and Landscape Construction Certificate III.
3. He has re-engaged in the workforce. Whilst awaiting the outcome of these proceedings, he has worked casually as a labourer.
4. Mr McIntyre is now in a supportive and loving relationship. I read a reference and heard evidence from his current partner, in which she described him as "nothing but respectful caring and someone who puts everyone else first before himself." She spoke in her evidence with pride of the way in which he has brought up his children. She knew the detail of his prior criminal history and the DHHS interventions and gave evidence in support of him. She said he has, through this process, had the negative aspects of his entire life examined and she emphasised the many good and positive features of his personality and his dedicated role bringing up his children. I accepted her evidence.

(h) the likelihood of future threat to a child caused by the applicant

1. All of Mr McIntyre's offending took place many years ago. The sexual penetration charges were 27 years ago and the most recent offence of recklessly cause injury to his daughter occurred 14 years ago.
2. The Secretary emphasised that Mr McIntyre's offending occurred over a 15-year period during which time Mr McIntyre periodically offended. Whilst acknowledging the levels of stress he may have been under, and the unusual circumstances of some of the offending, the Secretary emphasised that this did not excuse the offending. The Secretary submitted that there was no evidence before me which should alleviate my concerns about the likelihood of its repetition.
3. The Secretary emphasised that because I had not been provided with expert opinion as to the future threat to a child caused by Mr McIntyre that I should not be satisfied, given his history, that he does not pose a threat.
4. I accept Mr McIntyre's evidence that no report was provided because he was unable to afford the cost of a report.
5. I agree that Mr McIntyre's criminal history is an unenviable one and of great concern. Nevertheless, there has been a very lengthy period with no offending, during which time Mr McIntyre has almost single-handedly raised five children. I accept his evidence that during this period there were a number of stressors and he did not reoffend. I accept that he has demonstrated over some years that he can control his temper. I accept that he was mortified that he had harmed his daughter and learnt a salutary lesson from that. I am also satisfied that some of his other offending was properly categorised in the sentencing remarks of His Honour Judge Villeneuve-Smith.
6. I do not consider that the lack of a psychological assessment is fatal to Mr McIntyre's application. I must make my own assessment of the threat caused by Mr McIntyre based on all of the material before me.
7. Clearly, when an individual has a history of offending against children, great caution must be exercised by this Tribunal before it will consider that person does not pose a future threat to a child. I am, however, satisfied that Mr McIntyre does not pose a future threat.
8. There has been no further offending of any description for many years.
9. Mr McIntyre's sexual offending has already been described. It was not predatory. It was not repeated. It was in the context of a relationship, albeit an impermissible one. The sentencing judge emphasised even at that time that he did not wish Mr McIntyre to be branded by this offence nor have it "haunt him down the years".
10. The serious offence of recklessly causing injury committed against Mr McIntyre's seven-year-old child was a reckless rather than deliberate act which Mr McIntyre immediately regretted. He thereafter took positive action. He cooperated with police, undertook anger management counselling and engaged with the DHHS. Even at the time of the offending, the DHHS were confident that there would be no repeat of it and were supportive of Mr McIntyre having his children placed in his care.
11. Conclusions reached and documented in the DHHS materials state:

In the context of the injury caused the concerns are of a serious nature. Actual harm has been perpetrated by the father toward [daughter]. Father appears very remorseful in relation to the injury he has caused [daughter]. It appears that the father has primary care of the children on a full-time basis, mother works full-time. [Daughter] currently remains at Frankston Hospital following surgery and plaster placed on her thigh.... Likelihood of harm occurring by father on [daughter] or towards any of the other children appears to be unlikely. Father appears to be acknowledging of the seriousness of the injury and the harm caused by him. Parents willing to accept support services is deemed necessary. Written undertaking signed.

1. Further, under "is there any risk of significant harm or is sufficient safety demonstrated?"

Significant safety has been demonstrated given the parents are cooperating with DHS and they have agreed for DHS to remain involved and are acknowledging that they need supports. [Child] has stated that she doesn't feel scared to be at home and both [other children] will attend childcare... The parents of [children] signed a voluntary agreement for the children to be placed in foster care for two weeks...

1. A Child Well-Being Report in 2008, (the latest date DHHS had involvement with the family) states:

Children's schools were contacted, the school raises no concern about children's safety in father's care and both schools provided consistent feedback that the father is highly supportive of the children and is in frequent contact with the school to discuss children's progress.

1. Mr McIntyre has been positively and actively involved with his own children, the children of his partner and the children of his sister. He has been in involved as an active parent in his children's school. His conduct over the last 14 years has been blameless.
2. Weighing the material in front of me, including the context of his criminal offending, his engagement with DHHS and his exemplary behaviour over the last 14 years, I am satisfied that there is no evidence before me upon which I could find that there is a likelihood of future threat posed by Mr McIntyre toward a child.

(i) any information given by the applicant in, or in relation to, the application

1. I read a number of references. References from Mr McIntyre's children, two of whom were present at the hearing, paint a picture of a dedicated, active and caring father.
2. Mr McIntyre's best friend and godfather to his children, Mr Paul Kuper, was also very supportive of Mr McIntyre.

(j) any other matter that VCAT considers relevant to the application

1. The Secretary emphasised that it was for Mr McIntyre to persuade me that he does not pose an unjustifiable risk to the safety of children. I was referred to the decision of Vice President Judge Jenkins in VZ I v Secretary to the Department of Justice (Occupational and Business Regulation) [2012] VCAT 220 at [113] where Her Honour said:

It is not for the respondent to prove to me why I should be so satisfied. The absence of credible objective evidence has made my task of assessing the future likelihood of a risk to children very much more difficult.

1. Mr McIntyre has so persuaded me. The passage of time since Mr McIntyre has offended, coupled with the positive evidence of his behaviour in the intervening years, leads me to the conclusion that Mr McIntyre does not pose an unjustifiable risk to the safety of children having regard to the matters set out in section 26A(3) of the WWC Act.
2. This is not however the end of the matter.

Section 26A(4) reasonable person/any type of child-related work

1. Under s. 26A(4) of the WWC Act, for the purposes of ss. (3) of the WWC Act, in satisfying myself that giving an Assessment Notice would not pose an unjustifiable risk to the safety of children, I must be satisfied that:

(a) a reasonable person would allow his or her child have direct contact with the applicant while the applicant was engaged in any type of child-related work; and

(b) the applicant's engagement in any type of child related work would not pose an unjustifiable risk to the safety of children.

1. The reasonable person would be concerned when reading Mr McIntyre's criminal history. However, I am satisfied that the reasonable person would be impressed, as was I, by the prolonged, demonstrable changes in Mr McIntyre. The reasonable person would consider that Mr McIntyre was now a role model for other fathers. The reasonable person, taking into account Mr McIntyre's period of good conduct over many years, would not hesitate to allow his or her child to have direct contact with Mr McIntyre whilst he was engaged in any type of child- related work. The reasonable person would be impressed by the evidence of Mr McIntyre's character witnesses. They would consider those witnesses to be sensible, evenhanded and representative of the general community.
2. Mr McIntyre's current partner is very supportive of him. She has two sons from a previous relationship, who were 12 and 9 when she and Mr McIntyre commenced their relationship. She has no concerns about him caring for her children and has regularly left them in his direct, unsupervised care over the years of their relationship.
3. Mr McIntyre's sister is equally supportive. She has two children who are aged 10 and eight. Mr McIntyre regularly has direct and unsupervised care with those children. She described him driving for an hour each way to take care of her daughter from when she was six weeks old. She gave very positive evidence about Mr McIntyre's own children.

1. On the basis of all of the material before me, I am satisfied that Mr McIntyre's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.
2. Mr McIntyre has been praised by DHHS and schools for his efforts with his own children. He has been praised by family members and close friends who have seen the way he engages with his own children. He has turned his life around, from dysfunctional beginnings to be an individual warranting admiration within the community.

1. If I am satisfied that the giving an Assessment Notice would not pose an unjustifiable risk to the safety of children, I may by order direct the Secretary to give an Assessment Notice to Mr McIntyre if I am satisfied that, in all the circumstances, it is in the public interest to do so.
2. Mr McIntyre put his career on hold from 2004 onward to be the sole parent to his five children. It is appropriate that now his children are (nearly) grown-up that he be able to work outside the home. It is in the public interest for him to engage in meaningful work which he enjoys and to contribute to the community in circumstances where I have found that he does not pose a threat to children and there is no unjustifiable risk to children in his doing so.

1. I will direct the Secretary to give an Assessment Notice to Mr McIntyre.