OTE v Secretary to the Department of Justice and Regulation (Review and Regulation) [2018] VCAT 7

1. The decision of the respondent dated 5 November 2016 is affirmed under s.51(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998.

1. In July 2017, OTE applied to the Secretary to the Department of Justice and Regulation, ("the Secretary") for a Working with Children Assessment Notice under the Working with Children Act 2005 (the WWC Act").
2. When an individual makes an application for an Assessment Notice, the Secretary investigates that person's suitability to work with children. Criminal history checks are undertaken through Victoria Police and enquiries are made of other organisations, such as the Department of Health and Human Services, ("the DHHS").
3. The Criminal history check conducted in relation to OTE, revealed 2 previous offences of violence.
4. In October 2004, OTE was found guilty at the Ballarat Magistrates' Court of the offence of intentionally causing injury. The victim of that offence was OTE's first wife.
5. In 2010, OTE was also convicted at the Ballarat Magistrates' Court in relation to 1 count of unlawful assault. The victim of the assault was OTE's father.
6. In addition to the offending history, the Secretary relied on information received from the DHHS - Child Protection.
7. The Secretary was not satisfied that issuing OTE an Assessment Notice would not pose an unjustifiable risk to children. Accordingly the Secretary refused OTE's application for an Assessment Notice and on 5 November 2016, gave him a Negative Notice. OTE sought a review of that decision to this Tribunal in early March 2017.[1]
8. The hearing commenced before me on 7 July 2017. Following the evidence and the submissions, the hearing was adjourned, part heard, to enable OTE to obtain further evidence by way of an up-to-date psychological assessment and report. Unfortunately, despite a number of attempts to do so, OTE was unable to obtain the report. Eventually in mid-October 2017, OTE asked that I make a determination on the material and evidence already before me.

1. There are 3 different categories of offences under the WWC Act. The offence of intentionally cause injury is a Category B offence. Category A is the most serious category and category C is the lowest category.
2. In a review of a decision to give a Negative Notice on a Category B application, this Tribunal must, under s. 26B of the WWC Act, determine that it is appropriate to refuse to give an Assessment Notice unless satisfied that the giving of the Assessment Notice would not pose an unjustifiable risk to the safety of children having regard to any matters to which the Secretary must have regard under section 13(2) of the WWC Act. The Tribunal must also apply a "reasonable person test" and consider the likelihood of any future threat to a child caused by an applicant. Finally the Tribunal must also apply a "public interest test".
3. In relation to the meaning of the terms "unjustifiable risk" and "likelihood" Justice Bell said in ZZ v Secretary, Department of Justice [2013 ] VSC 267 (22 May 2013) at [16] and again in PQR v Secretary, Department of Justice and Regulation (no 2)[2017] VSC 514 at [43]:

The interpretation of s.13(2) which I have here explained is carried by the plain and ordinary meaning of the words "unjustifiable risk". A risk is a "hazard" or "danger" or an "exposure to mischance or peril" and may be great or small depending on the probability of the event occurring or the nature of the hazard or danger concerned. The legislation creates an important scheme for protecting children from the hazard or danger of being sexually or physically harmed by employees, volunteers and others. But it is not a scheme for protecting children from all hazards and dangers whatsoever, however insignificant be the nature of the potential harm or small be the degree of the probability of that harm occurring. That comes from the word "unjustified"...

Similarly, the relevant ordinary meaning of "likelihood" in s. 13(2)(h) is "the quality or fact of being likely or probable". The relevant ordinary meaning of "likely" is likewise "probable". This too requires an assessment, one that may count in favour of or against the applicant depending on the level of probability.

Working with Children Act 2005 s.13(2)

1. I start then with a consideration of s.13(2) of the WWC Act.

(a) the nature and gravity of the offence and its relevance to child-related work

1. The following information was provided by Victoria Police to the respondent:

The victim came to police reporting historical physical assaults by ex-husband (the applicant). Reports that over seven year marriage has been kicked and he strapped her when he felt house was not cleaned. Received bruising as a result of these assaults.

1. OTE said the following to the Working with Children Unit on 9 September 2016, in relation to the Police information:

The information is correct. The victim scalded my baby with boiling water and tended to herself and left the baby crying unattended. I attended my baby and I lost my temper with the victim and kicked her. Children were present, ages 7 years, 3 years and newborn.

1. In his evidence before me, OTE agreed that this is what occurred. He said that he kicked his former wife to the ankle approximately four times. He added that he threw his dinner on the floor and threw out the family's food which his former wife had prepared.
2. The offending is demonstrably relevant to child-related work.
3. The assault on his former wife took place in front of the children. OTE gave no consideration to the impact his conduct would have had on them.
4. Such violent and aggressive conduct is inconsistent with the qualities needed to work with children.

(b) the period of time since the applicant committed the offence

1. The offending took place in 2004, some 13 years ago.

(c) whether a finding of guilt was recorded for the offence

1. A finding of guilt without conviction was recorded.

1. OTE was sentenced to a 12 month adjournment and required to pay $350 to the Court fund.
2. This was a lenient sentence. It does not however for the purposes of this application, lead to any conclusion that the offending was not serious.

(e) the ages of the applicant and of any victim at the time the applicant committed the offence

1. OTE was aged 33 years and his victim was also aged 33 years.
2. It is relevant that the violent offending took place in the presence of OTE's young children. They were in this respect secondary victims. It must have been a terrifying ordeal for the children to witness their mother being assaulted by their father.

(f) whether or not the conduct that constituted the offence has been decriminalised since the applicant committed the offence

(g) the applicant's behaviour since he committed the offence

1. Much has happened in the intervening years.
2. After the offending, OTE's children were removed from his care. Within several months his relationship with his former wife ended.
3. For some years after the offending, DHHS were involved with OTE's family. There were protracted Court hearings in relation to the children. During this time, to his credit, OTE voluntarily attended a Men's Behavioural Change Program. He also attended parenting courses through Centacare including "Fathering with Girls" and relationship courses such as "Separation Recovery." In his evidence, OTE said that such courses made him "think a little bit more before acting" so that if he feels "cranky" he "just goes outside to wind down".
4. OTE also made a proactive effort to engage positively with his children. Such was his progress, in due course, one child was returned to his care. However in 2008, that child was removed amid further concerns levelled against OTE. In October 2008, all of OTE's 3 children were made subject to permanent care orders. OTE has not had any involvement with the children of his first marriage since that time.
5. In 2009, OTE committed a further act of violence - this time against his estranged father. The following information was provided by Victoria Police to the Working with Children Unit in relation to that offence:

... The victim, has been at a racecourse with his son, when he was assaulted by his other son (the applicant). The victim has approached the applicant and said hello and the applicant struck him to the right side of the face and ran-off. The victim received a minor cut to his gum and complained of minor swelling.

1. OTE agreed that this occurred. He felt his father had spoken to him in a sarcastic manner. Whilst there is a complex family history, it is nevertheless of grave concern in the context of this application, that OTE's immediate response to any form of confrontation was violence. OTE was found guilty of unlawful assault at the Ballarat Magistrates Court on 12 April 2010. He was fined $800 with conviction.
2. In 2010, OTE met his current wife and subsequently remarried. There are 2 children of that relationship. Although in 2013, there was a notification to the DHHS regarding OTE's second wife and their child, it is likely that this was an automatic notification upon the birth of the child, based on the previous history. In any event, to his credit, OTE completed an intensive QEC[2] course. Although OTE did not complete a further men's recommended behaviour program, his children remain in his care. There is no involvement from DHHS other than annual "check-ins".
3. OTE gave evidence that these days he only disciplines his children through verbal commands and appropriate punishment. He denied any violence toward his current wife or his children.
4. OTE has been self-employed since 2002, running a successful window cleaning business. He performs this task at a number of private and commercial premises including, (sometimes), schools. OTE understands that he may be able to win some more contracts to clean school windows if he has a positive Assessment Notice.
5. He leads an active social life. He enjoys snowboarding or surfing when he gets the opportunity.
6. OTE is also actively engaged in the Army Reserve. He has been a member of the Army Reserve since 1989.

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

1. My primary function under this heading is one of risk assessment.
2. I have already touched on OTE's offending history and involvement with DHHS.
3. It is clear that OTE committed offences of violence in 2004 and 2009.
4. The DHHS material spans many pages containing very concerning further allegations about OTE's conduct toward his former wife and children. Taken on its face, the material would lead to the conclusion that OTE is not a suitable person to engage with children. The documentation paints him as a controlling, violent, individual with little or no parenting insight.
5. However, there is a danger in placing reliance on untested material of this nature. In an extremely comprehensive judgment delivered on 20 February 2006, Magistrate Peter T. Power, when determining the family applications in relation to Custody to Secretary Orders, was highly critical of much of the material contained within those pages. He also disagreed with many of the descriptions of OTE contained therein.
6. Magistrate Power, for example, said the following of OTE (p. 41 of 83):

I found him quite an impressive witness, his commitment and dedication to his children shining through, absolutely not in question in any way. For a man who is alleged by DOHS and several professionals to be lacking in human empathy and who appears to be a fairly concrete thinker, he was unexpectedly emotional breaking down on several occasions.

This was a man who has demonstrated - both by the nature and content of his evidence, by what he has tried to do by way of self-organised parenting courses and by his willing co-operation with professionals - as much commitment to retain as much as possible of a father's role in his children's lives as I have ever seen in nearly 10 years in this Court. True it is he presented with a trace of black and white thinking, but he certainly did not present as uncaring or non-empathetic or as non-redeemable.

1. I do not propose to canvass the many pages of the decision. Suffice to say, once again by example, that at p. 72 of 83 His Honour also said:

The evidence of the Department's professional witnesses has tended to demonise OTE in a way that is not compatible with my observations of him in the witness box. That evidence seems to me to have developed "a little bit like an avalanche" to borrow Ms Meagher's colourful term. Ultimately however, the demon has been exorcised by the evidence of Dr Mihailidis which I unequivocally accept and by Ms Meagher's lone but quite cautious opinion as to the viability of reunification.

1. Much of the material contained in the DHHS material is disputed by OTE. It is untested and has been the subject of criticism from an experienced Magistrate.
2. Nevertheless, OTE did admit in his evidence before me that he:
   • (a) kicked his wife in front of the children
   • (b) threw his dinner on the floor and threw the children's meals out
   • (c) strapped his wife with a belt on more than one occasion (possibly in front of the children)
   • (d) said things to his wife whilst strapping her, along the lines that "if you want to act like a child I will treat you like one'
   • (e) locked his former wife out of the house and told her that she had to tell the truth before she came inside
   • (f) regularly shouted at his former wife
   • (g) threw things at his former wife, including coffee cups, (possibly in front of the children)
   • (h) agreed that he may have told a psychologist that he rubbed food into his former wife's hair
   • (i) on other occasions threatened the children "to keep them in line"
   • (j) would sometimes point cap guns at the children because they were scared of the noise
   • (k) may have told a psychologist that in order to discourage his daughter from wetting herself, that he pretended to heat up a knife whilst telling the child that the doctor would cut her or burn her warts off
   • (l) strapped his children
   • (m) punched his father.
3. On any analysis these admitted matters raise very serious concerns about the level of future threat to a child caused by OTE. Some of the behaviour was targeted against children. Some of it was in the presence of children. Some was directed against his former wife. All of it raises concerns about OTE's ability to appropriately deal with day-to-day issues.
4. There is a demonstrable history of risk to children - direct and indirect, physical and psychological.
5. Although OTE gave evidence that he would no longer act in this manner and would now use different approaches to discipline, I was concerned when hearing OTE's evidence that although he has undertaken courses and reflected on some of his conduct, that he nevertheless continued to deflect his conduct back onto the failings of his former wife as justification for his conduct, rather than demonstrating a full understanding of the seriousness of his own behaviour.
6. OTE similarly seemed to consider that it was his father's demeanour rather than any lack of appropriate self-restraint on his part which caused the offending to occur.
7. It is not good enough when weighing the risks to guess about whether an individual is rehabilitated or changed.
8. Positive probative evidence is required upon which I could find that OTE does not pose an unjustifiable risk to children any more. There is little such material before me.
9. I was impressed with many of the positive aspects of OTE's life and his engagement with appropriate services. There is absolutely no doubt that OTE has a great deal to offer the community. I fully accept that OTE works very hard in his business and has made great efforts to change his ways.
10. However I have before me no contemporary psychological or psychiatric material or reports. I only have OTE's self-analysis. He may well hope that he will not revert to his previous behaviour, but I was not satisfied hearing his evidence that he has in fact reflected and developed the tools necessary to prevent a recurrence of his behaviour if things do not go according to plan in the future.
11. I do not know whether, if OTE's current relationship becomes problematic, he will revert to his former conduct. I do not really know how he is conducting himself within the home environment at the moment. His character references whilst positive were not detailed and did not provide the level of insight that I would require in order to form an opinion as to how OTE conducts himself in stressful circumstances
12. It is not all cases before this Tribunal that will require an expert opinion to be provided. This however is one that does.
13. The history before me does not paint a favourable picture of OTE's anger management skills.
14. I am concerned, without evidence to the contrary, that OTE if challenged or under stress or aggravated by a child or a person in the presence of a child would react negatively and violently and thereby pose a threat to a child.

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

1. I read character references for OTE. It is clear to me that he is hard-working and that he has positive attributes. Nevertheless the references were insufficiently detailed and had insufficient knowledge of the circumstances of OTE's offending and the other issues before this Tribunal to enable me to place any great reliance upon them.
2. OTE gave evidence that he thinks that he will require an Assessment Notice if he is to win window-cleaning contracts at schools. He understands that subcontractors hoping to work on school premises will require a current Assessment Notice.

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

1. It is appropriate to refuse to give an Assessment Notice to OTE. I am not satisfied that giving the Assessment Notice would not pose an unjustifiable risk to children having particular regard to the nature and gravity of the offence, and the likelihood of future threat to a child caused by OTE

1. Given my above findings it is largely unnecessary to traverse the legislative provisions much further. Nevertheless I will do so briefly.
2. In satisfying myself that giving an Assessment Notice would not pose an unjustifiable risk to the safety of children, I also need to be satisfied under section 26B of the WWC Act that:

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

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

1. I am unable, on the evidence before me to be satisfied of either of these matters.
2. On the state of the material as it currently exists I do not consider that a reasonable parent would allow their child to have direct contact with OTE whilst OTE engaged in any type of child-related work. The reasonable person would be concerned about OTE's history of repeated violent and demeaning conduct. The reasonable person would be concerned the offending took place without regard to the impact of such conduct on the victims.
3. I am satisfied that the reasonable person would not expose his/her child to the potential for such behaviour to be repeated, without positive assurance that it would not be repeated.
4. As I have already indicated, I have insufficient material before me upon which I could be satisfied that OTE does not pose an unjustifiable risk to the safety of children. I cannot therefore be satisfied that his engagement in any kind of work would not pose an unjustifiable risk to children.

1. I am also required under s.26B(3) of the WWC Act to determine that it is appropriate to refuse to give the Assessment Notice unless satisfied that it is in the public interest to give the Assessment Notice.
2. In circumstances where I am not satisfied that the giving of an Assessment Notice to OTE, would not pose an unjustifiable risk to the safety of children, I cannot determine that it is appropriate to do so on public interest grounds. OTE's desire to obtain additional work cannot override the protective legislative requirements. OTE does not hold particular skills relating to children. Fortunately he is still able to make a living without an Assessment Notice.

1. For the above reasons I am not satisfied that I should give an Assessment Notice to OTE. Accordingly under s.51(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998, I will affirm the decision of the respondent dated 5 November 2016.

[1] On 14 March 2017 the Tribunal made an order by consent extending the time for the making of the application to the date of the application.

[2] Queen Elizabeth Centre-Early Parenting Services.