TKM v Secretary to the Department of Justice

Mr Phillips of counsel appears on behalf of the applicant and urges me to set aside the Secretary's determination and substitute therefor an assessment notice favourable to TKM. Ms Bennett, who appears on behalf of the Secretary, urges me to affirm the Secretary's determination.
Ms Bennett has referred me to a number of decisions of the Tribunal relative to other Working with Children applications. It is no disrespect, either to the citation or to the learned members who determined those matters, that, in the circumstances, I feel it unnecessary to make specific reference to them. Each case turns on its own particular facts. None of the cases that I have seen bears what one might describe as so striking a resemblance to this one. In some of those cases, children affected by the relevant offence or offences were not primary victims in the sense of being the target of the violence, but rather suffered collateral damage as a result of violence inflicted on adults or, to put it another way, stood as secondary victims. Here, the concern is that the six children were secondary victims. The horrific nature of this event means it was no doubt particularly traumatic for them, and traumatic for another reason for the eldest daughter who, in fear for what was going to occur to her mother, called the police. In addition to the trauma she suffered as a result of witnessing these events, she has been afflicted by a feeling of guilt that her actions have brought further misfortune on a family which was already under stress. Her parents have assured her that this is an inappropriate view of things, but I have no doubt it will have been difficult for her to escape from these feelings of guilt.
In broad terms, Mr Phillips has said that I should view his client as a person willing to face the guilt of what he has done, a person who offers explanations as to how he found himself in this situation and did the wrong that he did, but does not offer these things as excuses. A person who has otherwise borne a good character always had, until these events, a strong marriage and been an honourable husband and father. In those circumstances, said Mr Phillips, the proper order is as he has contended for.
Ms Bennett, on behalf of the Secretary, has stressed that what has occurred here, manifests an entire loss of control on the part of TKM. There is no guarantee that such a loss of control would not occur again. She says that, since past behaviour is the surest guide we have as to future behaviour, there is every good reason to apprehend that it would. She says, there is no ground for thinking that effective action has been taken to forestall any occurrence. She notes that, whilst evidence has been called from psychologist Lyn Baudinet-Johnson, the treatment or consultations or counselling which this lady provided was marriage counselling for the couple and not treatment for any fundamental psychological difficulties which TKM has suffered and which may have been causative in these events. Therefore, she says, the Secretary's determination should be maintained.
I propose therefore, now to turn to the various criteria laid down in Section 14(3), but before doing so, I should say something as to the evidence which has been called in support of TKM's application. He gave evidence himself and admitted the correctness of the police summary, admitted his guilt, said that he was remorseful and said that what was most important for him in his life was the ability to interact with his children. The lack of a positive assessment would preclude him from participating in important elements of his children's life. His wife confirmed the events. She said that, prior to the stressful circumstances surrounding the salt mine contract, she and TKM had a good marriage, he had been a loving father. She did not take any blame upon herself. She agreed that these events were TKM's fault. Both of them said that, whilst TKM has taken a new contract this summer for harvesting salt, the circumstances are more favourable, first, because all vehicles were ready to go without an extensive period of maintenance to wear out TKM. Secondly, because better terms of contract have been agreed to, with a 10 hour day rather than a 12 hour day and provision had been made for some holiday beaks for TKM and his family.
Ms Gibson gave evidence in support of TKM as a loving husband and father. She works as a bookkeeper in the enterprise operated by TKM. Ms Baudinet-Johnson was generally positive and the evidence that she gave as to the counselling which she had given to TKM and his wife in seven joint sessions and to TKM's wife separately in a number of further sessions.
Turning then, to the statutory considerations which must guide my determination. First, there is no doubt that the conduct here is very grave indeed. It is relevant to child-related work because six children of TKM and his wife were the victims of collateral damage, or, they were secondary victims. On the other hand, it must be observed that this is not, like so many of the matters that come before the Tribunal, a situation that has anything to do with sexual abuse, and the children were not directly victims of the violence. The second consideration relates to the length of time since the offence occurred, and it is very recent indeed. This is a significant negative as far as the present application is concerned. The third consideration invites attention to the conviction which TKM suffered. Again, this indicates the very serious view that the Magistrate has taken as to the events that have occurred. Likewise, the sentence which he imposed.
TKM and his wife are relatively close in age; but what is significant here, is that the children had to witness a stressful event in such tender years, 11 years down to 2 years. There is no question of decriminalisation of events. TKM has conducted himself properly and honourably since these events, for instance, his pleading guilty and so forth. On the other hand, Ms Bennett says that too much should not be made of it or perhaps nothing should be made of that at all because TKM has been before the Magistrates' Court as to these things twice: for the original sentencing and the application for review or modification, and then before this Tribunal. He has therefore had an incentive to conduct himself well.
Paragraph (h) invites attention to the likelihood of a future threat to a child caused by the applicant. Ms Bennett says that there is no expert evidence before the Tribunal as to this. The evidence which did emerge was as to a course of marriage guidance rather than an expert assessment of the likelihood of a future threat to the child.
Mr Phillips, on the other hand, placed emphasis upon the blameless life led by TKM until these events. There is no reason, said Mr Phillips, why, given the remorse which TKM suffers, he should not be able to return to that blameless pattern of life and be no threat to the children, either his own or anybody else's. Ms Bennett says, what is borne out by cross-examination of Ms Baudinet-Johnson is that the characteristic of domestic violence goes in cycles. The first element of the cycle is a build-up of stress, the second is the explosion of violence, the third the so called 'honeymoon period' where the perpetrator and victim make up, the perpetrator seeks to be equally attentive to the victim and then the cycle begins over again. Ms Bennett says that, given the short period of time since these events, there is every reason to fear that, what has happened now, is just the first in the repetitive cycle where, once again, TKM is engaged in destructive behaviour directed towards his wife, inflicting collateral damage on his children. Moreover, his propensity to lose control means that the violence might be directed to persons other than those inside his family and it would be an inappropriate risk to expose other people's children to possibly being involved in that process.
The penultimate consideration is information given by the applicant in relation to the application, is constituted by the evidence from the witnesses and the background to the matters which have been affirmed by TKM and his wife. No other general matters have been urged upon me relative to paragraph (j) of the statutory criteria, namely 'any other matters that the Secretary considers relevant to the application'.
What then might we make of these things? First, there is a balancing exercise involved. Certainly, the Working with Children Act proceeds on the precautionary principle. When in doubt, refuse a favourable assessment. Secondly, whilst there may be very important considerations for an applicant for assessment relative to his or her employment, there is nothing in the statute which would appear to justify the Secretary or the Tribunal in saying, 'well, this candidate looks a bit dubious because it might cost him his job if he doesn't get a favourable assessment; we'll stretch the point and give him a favourable assessment'.
In this case, the interest which TKM has in participating in his children's wider life at school and in programs such as Auskick, are important. They cannot outweigh the specifics that the statute requires me to consider. Likewise, the obviously high motivation which TKM has in launching this, no doubt, expensive proceeding. The ultimate outcome, I think, turns on a number of matters; first, the nature of the violence involved here. It is domestic violence, and whilst violence is violence, it seems to me that it is a less obvious prediction of the violence towards the world at large. Violence is directed inwards. It does not threaten other people's children rather than one's own. This, of course, is what this statute is concerned with. Section 27 of the Act provides that, in substance, determinations adverse to applicants under this statute will not affect the applicant's ability to interact with his or her own children. There are other statutes to deal with those matters.
Secondly, it is I think significant exactly how the question relative to Category 3 offences is posed by the statute. The Secretary is under a positive obligation to give a favourable assessment in these circumstances 'unless satisfied that in particular circumstances, that it is appropriate to refuse do so'. This does not, I think, create any sort of burden of proof. There is not any strong statutory presumption in favour of the applicant. On the other hand it does, as it seems to me, dilute the application of the precautionary principle which is the general guide in this statute. The matters which weigh with me in favour of this application are the otherwise good character that TKM has borne apart from this appalling incident, and the particular nature of the incident, appalling as it is, domestic violence and a piece of domestic violence not directed specifically at children. There are also the particular circumstances surrounding this offending. They are not an excuse or perhaps even a mitigation but to some extent an explanation. Those considerations, together with the others urged by Mr Phillips, in my view, outweigh the negative considerations urged by Ms Bennett and so I set aside the Secretary's determination and substitute therefor a determination giving TKM an assessment notice favourable to him.

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Judgment (22 paragraphs)

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Cases Cited (1)

TKM v Secretary to the Department of Justice (Occupational and Business Regulation) [2012] VCAT 1905 (6 December 2012)