Whether or not the conduct has since been decriminalised - 14(3)(f)

1. The conduct constituting the index offence has not been decriminalised.

Behaviour since engaging in the conduct - section 14(3)(g)

1. The loss of control evidenced by the assault, not to mention complaint of ongoing arguments in front of his children and verbal abuse are relevant to child-related work. It follows that one issue for determination in this application was whether, and if so the extent to which, TVQ had learned, and since applied, strategies to address conduct that poses a risk of harm to children in child-related work?

1. After being issued with the Family Violence and Safety Notice and commencing from before the plea hearing, TVQ voluntarily commenced private counselling. In my view this was a very sensible approach, given the seriousness of the criminal charge and the state of TVQ's marital relationship. I have accepted, however, that by commencing counselling TVQ had demonstrated some degree of understanding of the need to address family violence issues vis-à-vis his wife.
2. Reports prepared by treating psychologists, Ms Ng dated 25 November 2016 and by Ms Bah dated 6 March 2019 and 8 May 2019, were tendered.[157] These reports confirmed that TVQ was referred to Ms Ng by his general practitioner, reportedly due to the doctor's concern that TVQ was suffering from symptoms of anxiety and depression.
3. It appears from the reports tendered that on six occasions between 21 June 2016 and 25 November 2016, TVQ received treatment from Ms Ng involving supportive counselling, cognitive behavioural therapy and behaviour activation. According to Ms Ng's brief report, the treatment had been intended to "help him improve his mood and dealing with his stress at home".[158]
4. Notably Ms Ng's report, which was the only psychological evidence on which TVQ relied in closing, had been prepared well before TVQ applied for an Assessment Notice under the Act. As such, her report did not contain an expert assessment on the likelihood of future harm to children in child-related work.
5. There was a hiatus of more than two years before TVQ resumed psychological counselling with a psychologist working from the same clinic, Ms Bah. She reported that TVQ had attended two counselling sessions on 19 February 2019 and 2 March 2019 prior to the making of her report dated 6 March 2019.[159]
6. In closing, the Tribunal was informed that Ms Bah had not been called as a witness due to her inability to give first-hand evidence of how TVQ had changed in the three years since the commission of the index offence.[160] This was an appropriate concession to make in the circumstances.

1. It appears that following sentencing, between July 2016 and February 2017 TVQ and DCM participated in couples' counselling with FMC Mediation and Counselling Victoria.[161] In her Witness Statement DCM indicated that counselling had included advice on how to cope with stress in their home and improve their marriage with some advice on how to behave around their children.[162]

1. Between 16 November 2016 and 15 March 2017, TVQ participated in 14 sessions and completed a Men's Behaviour Change Program.[163] Following completion of this program TVQ apparently agreed to participate in a client consultation process for a Client Experience project run by the Victorian Support and Safety Hub. The latter required TVQ to relate his experience of this program.[164]
2. Both in correspondence to the WWCCU and at hearing TVQ maintained that, he had "conducted" himself "appropriately" since participating in psychological counselling and a Men's Behaviour Change Program.[165] At hearing TVQ explained that by this he meant he had "not committed violence against my wife since the incident of 12 June 2016".[166]
3. Notably, under cross-examination TVQ stated that he and DCM continued to have arguments over domestic arrangements that he claimed did not also involve "verbal language" or "disrespectful language".[167] TVQ, nonetheless, rejected the Secretary's proposition that this behaviour was indicative of him not having learnt or since demonstrated a capacity to apply strategies for maintaining positive family relationships taught under the counselling and behaviour change programs.[168]
4. It was submitted on his behalf that TVQ had learnt from his mistakes and demonstrated remorse and he was "sufficiently reformed" for the Tribunal to be confident that the granting of an Assessment Notice was appropriate.[169]
5. I have already commented at length on my assessment of the Child Protection material and expressed strong reservations about the reliability of TVQ's appraisal of his own progress since the assault.
6. As earlier mentioned, DCM also indicated in her Witness Statement that the situation at home had improved, they did not argue as much as in the past and that, since the assault, TVQ has not been physically violent toward her or the children, but when he was angry, TVQ occasionally used bad language such as the "f" or "s" words.[170]
7. Having regard to DCM's Witness Statement, the various reports received from DCM to this effect by Child Protection and, absent independent corroboration of further incidents of physical violence towards her, I proceeded on the basis that the weight of the evidence supported a finding that TVQ had not since resorted to physical violence toward his wife during their arguments.
8. As earlier mentioned, the Secretary submitted, and I have accepted that, in as much as DCM's Witness Statement filed in this proceeding purported to give character evidence for TVQ, her evidence was not a reliable indicator of the extent to which reform had been effected vis-à-vis the children.
9. As my discussion of all of the material before the Tribunal has so far shown, I could not be satisfied of whether and, if so the extent to which, TVQ had also reformed in his approach to the discipline of his children. Both DCM and the children have made reports to Child Protection (and on several occasions the school has reported complaints by a child) that as recently as December 2017 TVQ had continued to resort to verbal abuse toward and possibly physical discipline of the children.

The likelihood of a future threat to a child - section 14(3)(h)

1. The Secretary submitted that there was a significant risk to a child from TVQ in the form of physical violence.[171] I have accepted that the absence of expert evidence of risk was one factor that informed this conclusion.
2. As expressed, the main purpose of the Act is to assist in protecting children from sexual or physical harm by ensuring that people that work with, or care for, them are subject to a screening process. In my view, the potential harm to children from exposure to verbal abuse and offensive language should TVQ be placed under stress in child-related work, was also a relevant consideration in this case.
3. As to the testimonials received, the club secretary who is also the founder of the club in 2015 and a coach, adopted the content of his Witness Statement dated 17 June 2019. His evidence at hearing was somewhat confused and confusing. My assessment of the import of the club secretary's evidence was as follows:[172]
   • He first met TVQ while playing hockey at the club in April 2016. TVQ was subsequently invited to join the club.
   • The club established a team in 2017.
   • TVQ had since been very helpful to the club secretary and the club in many ways in the running and management of the club.
   • In 2018 TVQ became a committee member. TVQ became the club's treasurer in 2019.
   • The club has senior and junior teams.
   • In 2018, he asked TVQ to obtain an assessment notice because the club needed volunteers to assist with duties involving the junior players.
   • In about October 2018 TVQ informed him that he had received an interim negative notice. They discussed the reasons for this at which time TVQ informed him that:

15. ....he had domestic arguments with his brother in 2010 and one incident of domestic violence with his wife in 2016. He told me that he had been to court for the incident with his wife.

16. ... some people had called the police and authorities in 2016 about the way he was using physical discipline to his children, and that he had smacked them with a wooden spoon a few times.

17. ... that the police spoke to him about his inappropriate discipline methods that he had also attended counselling ...

• TVQ impressed him as being calm, helpful and polite with junior players. There had been no complaint about TVQ's conduct or evidence of aggression.
• Nothing in TVQ's behaviour in 2016 had alerted him to the danger of TVQ subsequently committing the criminal offence.
• From his own observations of TVQ, he did not hold any concern about TVQ's interactions with his child or children playing in the club now or in the future.

1. A further Witness Statement dated 20 June 2019 made by a businessman and long-standing friend of TVQ, described TVQ as a caring, understanding and patient person.[173] Among other things, this friend stated that: their families had spent time together over the years; TVQ had informed him that he had stopped using a wooden spoon as a mode of disciplining his children since the police had spoken to him: and that he (the friend) had never seen TVQ discipline his children physically.
2. Notably, neither witness indicated an awareness of the Child Protection concerns raised over the last several years or knowledge of a history of verbal abuse experienced by DCM and the children before and likely since commission of the index offence. In short, I could not be satisfied that the very favourable testimonials from these individuals weighed against a conclusion that there was more than a chance of future threat to a child.
3. I have already addressed in passing my reservations about several aspects of DCM's Witness Statement. In view of the conflict between the character evidence in DCM's Witness Statement and several of the reports attributed to her in the Child Protection material, not to mention reports attributed to one or other of the older children, I gave little weight to DCM's lack of concern about leaving their children with TVQ because she was confident that he would not return to using physical discipline.[174]
4. Moreover, as was submitted on behalf of the Secretary, it is unlikely that DCM would be present to supervise TVQ's conduct, were he granted an assessment notice that permitted him to engage in any unsupervised child -related work.[175]
5. The test under the Act involves an assessment of the likelihood of future threat to a child. In this case, I assessed this risk as being greater than negligible.

Any information given by TVQ in, or in relation to, the application - section 14(3)(i)

1. This information has already been addressed in some detail.

Any other matter that the Secretary considers relevant to the application - section 14(3)(j)

1. It was common ground at hearing that any disadvantage to TVQ (or for that matter to the club) in TVQ not being able to volunteer to mentor and coach junior players or to participate in schools-based hockey programs or to pursue promising job opportunities did not take precedence over the need to protect children from harm.
2. Insight, acceptance of responsibility, and it follows evidence of remorse, are, as Justice Kyrou explained in Maleckas[176], relevant considerations under sub-section 14(3)(j).
3. As my discussion of the evidence has so far shown, I have accepted that TVQ has expressed remorse and has demonstrated some degree of insight into his conduct. However, these factors are less favourable to TVQ than they might otherwise have been given the evidence of TVQ externalising blame, which included his misguided attempt to minimise the gravity of the index offence by suggesting that both his wife and eldest daughter had lied to police.
4. Having considered each of the abovementioned matters, I was satisfied under section 26C(1) that it was appropriate to refuse to give an Assessment Notice to TVQ.

Sections 26C(2)(a) and (b - the reasonable person test

1. I was further required to refuse the giving of an Assessment Notice under section 26(2)(a) unless satisfied that a reasonable person would allow his or her child to have direct contact with TVQ while he was engaged in any type of child-related work or under section 26(2)(b) unless satisfied that TVQ's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.
2. I was not so satisfied.
3. TVQ does not have a history of working with children. The Secretary submits that a reasonable person would not allow his or her child to have direct contact with the applicant while he was engaged in any type of child-related work. The test required a weighing up of all the known circumstances.
4. In short, I could not be satisfied that a reasonable person when appraised of the circumstances of this case, would allow unsupervised contact where TVQ was engaged in any type of child-related work. In my view, a reasonable person so appraised would be very worried by, for instance, the protective concerns involving reports of family violence and inappropriate discipline notified to and investigated by Child Protection over several years.
5. The last mentioned finding is decisive of the test arising under section 26C(2)(a) and (b).
6. Lastly, I could not be satisfied that it was in the public interest to give an Assessment Notice.
7. As to the potentially relevant factors identified by His Honour Justice Kyrou in Maleckas,[177] I make the following observations:
   1. It was common ground that TVQ's proposed activities constitute child-related work;
   2. The convictions for dishonesty offences are historical.

1. TVQ has skills that could benefit children who play or aspire to play hockey.

1. Given the history disclosed by the material before the Tribunal it could not be said that TVQ was a positive role model for children, quite the contrary.
2. More recently, in Secretary to the Department of Justice & Regulation v McIntyre, Justice Garde emphasised the importance of the protection of children as the paramount consideration in the application of the public interest test under the Act:[178]

83 The paramount consideration is always of the highest importance when considering and applying the public interest test. While the notion of the public interest is broad, and it is not appropriate to seek to define the boundaries of the public interest, the paramount consideration - the protection of children from sexual and physical harm - is at the very core of the public interest test.

84 The protection of children from harm is the paramount consideration. Essentially, this means that after considering all the relevant matters, the risk to children posed by the applicant as assessed by the Tribunal or Secretary must be found to be negligible or nil, is any higher assessment of the level of risk to children will offend the paramount consideration and will be unjustifiable. The need of the applicant to obtain employment will be overridden by the legislative direction to protect children from an unjustifiable risk of harm arising from the applicant.

1. In the present case I have assessed the risk of harm to children should TVQ lose his temper as greater than negligible or nil. It follows from this finding and Justice Garde's understanding of the application of the public interest test that I could not be satisfied that public interest considerations justified the granting of an assessment notice.

1. The decision of the Secretary to issue a Negative Notice on 22 January 2019 is affirmed.

[3] Exhibit S2, 27, Exhibit S1, 7 and Transcript (TN) 93-94.

[16] [2011] VSC 227 [56]. See also [43(b)].

[18] [2013] VCAT 789, [36] (unreported).

[19] [2015] VCAT 1057 [66].

[20] [2013] VCAT 789 (unreported).

[21] [2015] VCAT 1057, [66].

[22] Working with Children Act 2005, s26C(3).

[23] Maleckas v Secretary, Department of Justice op cit, [89-90].

[24] See comments made to this effect by Vice President Judge Harbison in Kozanoglu v Secretary to the Department of Justice and Regulation (Review and Regulation) [2016] VCAT 1695 [112].

[65] See for example OTE v Secretary to the Department of Justice and Regulation [2018] VCAT 7, [41] and FNI v Secretary to the Department of Justice and Regulation [2016] VCAT 1768, [25]-[38].

[81] Ibid, 13-14, 19-22 and 23-24 respectively.

[129] Exhibit A1, [19] and TN 67- 71.

[155] Exhibit S2, Certified Extract from Magistrates' Court of Victoria, 10.

[169] Witten submissions at paragraph 31 to 35 inclusive.

[171] Written submissions at paragraph 45.

[175] Written submissions at paragraph 57.

[176] Maleckas v Secretary, Department of Justice op cit.

[178] [2019] VSC 105 [83]-[84].