VSN v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2023] VCAT 663

1. Under s 108 of the Worker Screening Act 2020 (Vic), the decision of the respondent refusing to grant a WWC Clearance to the applicant is affirmed.
2. Under s 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), VCAT directs that no person other than a party to the proceeding or their legal representatives may inspect the VCAT file.

1. This is an application for review of the decision of the respondent (the Secretary) on 11 May 2022 to refuse to grant the applicant a WWC clearance under the Worker Screening Act 2020 (Vic) (the WS Act). The Tribunal is conducting a 'de novo' review, that is, it is re-making the Secretary's decision afresh.
2. On review, the Tribunal's task involves carrying out an assessment of the level of risk which the applicant, referred to as VSN,[1] would pose to the safety of children, if engaged in child-related work. In addition, it is, most relevantly, required to consider the likely response of a reasonable parent to VSN having contact with their child while engaged in child-related work. This is done in the context of the applicant's relevant history.
3. That history includes the following:
   • Reports from the Department of Families, Fairness and Housing, Child Protection Unit of incidents of domestic violence perpetrated by VSN between 2013 and 2016. (I refer to that Unit as 'Child Protection'.)
   • Various intervention orders (IVOs), first ordered in 2013, and remaining in place up until the present day.
   • Findings of guilt for two offences in 2015 and one offence in 2017, relating to domestic matters.
   • A 'non-conviction' charge of sexual penetration of a child under 16, which was brought against VSN in 2016, and withdrawn in 2017.
4. Concerning aspects of this history, VSN accepts that his threatening and abusive behaviour towards his wife in 2015 was unacceptable. He says he was immature, new to Australia, and unfamiliar with its mores, having arrived in 2010 from overseas, with no other blood relations here. He now has a much better understanding of the impacts of his conduct, and how to avoid it, in particular as a result of completing a Men's Behaviour Change course in early 2016, which was mandated after his 2015 offending.
5. VSN does however say that a number of the matters put against him are false, and arise from various persons having a malevolent attitude towards him. In particular, with minor exceptions, he denies reports that he perpetrated family violence against his wife and her two daughters (referred to respectively in this decision as his wife/the wife, and stepdaughter(s)). These reports came mainly from Child Protection, and some members of his wife's family.
6. VSN stated he has completed a 'Criminal and Justice Diploma' at Kangan TAFE Institute, Broadmeadows. This took two and a half years of fulltime study. He also said he is well advanced towards completion of a psychology degree (being conducted online, over about three and a half years, part time, at Swinburne University). He then intends to undertake further study- a masters, and then a doctorate.
7. VSN seeks a WWC clearance to enable him to apply for roles in corrections, such as at youth justice centres.
8. In circumstances where there have been no reports of domestic violence, or anything else adverse to the applicant since September 2016, he submits that the level of risk now has been reduced to a level such that he should be granted a WWC clearance under the WS Act.
9. The Secretary, on the other hand, submits that the level of risk has not been reduced sufficiently, such that the statutory criteria are not satisfied. In particular, the Secretary points to the fact that an IVO is still in place in favour of the two stepdaughters.
10. For the reasons set out in detail below, I have decided that the decision of the Secretary should be affirmed.
11. In summary, it is apparent that VSN and his wife have worked hard to overcome substantial challenges they have faced in their lives. However, in their desire for VSN to obtain a WWC clearance, they have both in their evidence to VCAT unduly minimised the extent of the domestic violence perpetrated by VSN in 2013- 2016, virtually denying that it occurred at all. This indicates that VSN has not fully accepted the implications of his conduct. It also undermines the reliability of his case more generally. The psychological evidence produced by VSN is cursory, and does not engage with the relevant material available in relation to VSN's history. It does appear that the risk posed by VSN has been reduced, but not sufficiently at this stage to the extent required under the WS Act. An IVO remains in place for the protection of the stepdaughters. Nor, in the circumstances, are the reasonable parent or any type of child-related work tests satisfied. That in itself requires the refusal of his application.

1. One of the main purposes of the WS Act is to assist in protecting children from sexual and physical harm by providing for screening of persons who work with, or care for, children.[2]
2. Section 11 of the WS Act provides that when the Tribunal makes a decision or takes an action under that Act, the protection of children from sexual or physical harm must be the paramount consideration.
3. Section 11 of the WS Act substantially mirrors the 'paramount consideration' in the Working with Children Act 2005 (Vic) (WWC Act) which it replaced. The paramount consideration was inserted into the WWC Act to put beyond doubt that the protection of children is a more important consideration than any other consideration, such as the individual's right to work.[3]
4. As noted, this is a 'category C' application under the WS Act. This follows from the 2015 and 2017 offences and the non-conviction charge all falling into that category.[4]
5. Under s 65 of the WS Act, the Secretary must give a WWC clearance on a category C application unless satisfied of certain matters. The Secretary's delegate considered the 10 statutory criteria in s 65(2) and concluded that VSN would pose an unjustifiable risk to the safety of children. So on 11 May 2022, the Secretary refused the application for a WWC clearance.
6. On review, the decision-making framework which the Tribunal must apply is differently expressed. Section 108 requires VCAT to refuse to give a WWC clearance on a category C application unless satisfied of specified matters.
7. Section 108 provides:

(1) In a review of a decision to give a WWC exclusion on a WWC category C application...VCAT must determine whether in the particular circumstances it would be appropriate to refuse to give a WWC clearance, having regard to any matters to which the Secretary must have regard under section 65(2). > > (2) VCAT must determine that it is appropriate to refuse to give a WWC clearance unless VCAT is satisfied that -

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

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

(3) Even if VCAT does not determine under subsection (1) or (2) that it would be appropriate to refuse to give a WWC clearance, VCAT must determine that it is appropriate to refuse to give the clearance unless it is satisfied that it is in the public interest to give the clearance.

1. The 10 criteria set out in s 65(2) are set out below. They comprise a list of specific considerations designed to ensure that all relevant risks are taken into account.[5]

1. Oral evidence was given by VSN and his wife. They were cross-examined.
2. A Tribunal Book was provided, including the following:
   • The material under s 49 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), relating to the WWC application process from when the application was made on 22 March 2021 to when the decision was made on 11 May 2022.
   • Additional material received from the police, including records of interviews, briefs of evidence, court summaries and court records, variously relating to the findings of guilt on the charges laid concerning the conduct in 2015 and 2017, and the non-conviction charge.
   • Information from Child Protection (over 500 pages). This comprised notes of child protection officers, reports, management plans and the like.
   • Information from Corrections Victoria (124 pages).
   • Materials provided by VSN, including statements by various persons in support, including his wife, character references, and a report from a psychologist.
3. With regard to the involvement of Child Protection, a summary document received by the Secretary dated 23 December 2021 stated that between 15 April 2013 and 18 September 2021, there were 14 referrals to Child Protection. Of these, three proceeded to the stage of 'protective intervention' or a 'Protection Order'. The others were closed without protective action being required.[6]

1. VSN was born overseas, and emigrated to Australia in 2010. He said he worked in security roles, including at hospitals, where his duties included assisting in providing security when, for example, offenders visited the hospital, after their partners gave birth. In September 2013, VSN was given an assessment notice (now called a 'WWC clearance') in connection with such roles.
2. At some point, apparently in the first half of 2012, VSN met his wife, via the internet. They first met in person in June 2012. In August 2012, she became pregnant, and they married.[7] His wife had two daughters from a previous relationship. They were born in 2006 and 2007 respectively.
3. Incidents of violence and abusive or controlling behaviour by VSN towards his wife and stepdaughters were reported during 2013-16. Home life was not stable during that period. Family members lived in different places at different times. The stepdaughters lived with their aunt at times and with their maternal grandmother (the grandmother) at times. This was as a result of VSN's wife fleeing on several occasions to the grandmother's home, or to a refuge, and also due to VSN being required to live elsewhere due to various IVOs. From around late 2015, the two stepdaughters have lived with their aunt, then their father, and since 2020, with their grandmother.
4. Since 2016, things have apparently been more stable, with VSN living with his wife and daughter (born in April 2013).
5. Various IVOs have been put in place from 2013, as described below. These have been varied from time to time. The present situation is that there is an order prohibiting contact between VSN and the two stepdaughters, unless with the approval of their father, or their grandmother (with whom they reside). This is in place until 19 June 2024, by which time the older stepdaughter will be 18.
6. VSN and his wife both said in their oral evidence that domestically, things are much improved now. She works in childcare and VSN has completed a Criminal and Justice Diploma and is working towards a psychology degree. He participates in family and community activities, such as assisting at his daughter's cricket club. They are willingly visited by the stepdaughters, with the approval of the grandmother, with whom they say their relationship is much improved.

1. VSN lived with his wife and two stepdaughters in late 2012 and early 2013. But in April 2013, he was required to move away, due to concerns about physical abuse of the children. He was reported to have twice hit his then five-year-old stepdaughter on the head on 17 March 2013 and shoved his wife who was pregnant at the time.[8]
2. On 8 April 2013, the wife called Berry Street Family Violence. She was reported to have disclosed that there was 'property damage, threats to harm (mother and children), threats to kill unborn... to take unborn child back to [his country of origin]...'.[9]
3. A short term IVO, to 26 April 2013, was put in place.[10] This was followed by a six month IVO (made by consent, without admission of allegations against VSN) from 29 April to 28 October 2013. This specified his wife and the two stepdaughters as protected persons.[11]
4. In the meantime, on 15 April 2013, the daughter of VSN and the wife was born. I refer to her as the 'daughter'.

1. Child Protection attended on 1 February 2014, following a report (apparently from the grandmother) of an incident said to have occurred on 31 January. The Child Protection records indicated as follows. Despite having given an assurance not to punish the children, VSN had again physically assaulted his six-year-old step-child, and choked his wife.[12] The children disclosed that VSN hit them when 'they do not do what they are told'.[13] VSN conceded he smacked the children on the arm as discipline, but said it was 'just a tap', which he did not view as problematic.[14]
2. In relation to this, Child Protection's summary report to the Secretary stated:

The second investigated report, received in February 2014, alleged that [VSN] had perpetrated physical assault towards child three and the children's mother. Child Protection substantiated the protective concerns, and assessed [VSN] as responsible for harm. Child Protection asked [VSN] to leave the home until he had completed an anger management/men's behaviour change program. He was noted to have presented as vague and non-engaging when interacting with Child Protection. Child Protection issued a Protection Application, and the children were made subject to a Supervision Order. Child Protection later breached the order due to reports that [VSN] was observed in the home. Child Protection closed the report at Protection Order phase noting that [VSN] had not addressed the protective concerns. [15]

1. In the hearing, VSN's position was that he did not perpetrate violence on his wife, nor on his stepdaughters (although he did appear to accept that he had 'tapped' one of his stepdaughters, but not in a violent way).[16] He said these were false reports made by his wife's family, which Child Protection simply accepted.
2. The wife said that her family had gone 'too far' this time in reporting this and denied suffering the injuries reported. Nor did Child Protection workers observe any such injuries. VSN and his wife attended the police station jointly to discuss the matter. VSN's wife made it clear she wished to remain in the relationship, and that most of the time they got on well.[17] Clearly, Child Protection had concerns about the potential for coercive control. The outcome of this intervention was that an Interim Protection Order was recommended for the protection of the three girls, and that VSN not live in the home with them and their mother.[18]
3. After this incident, VSN 'reluctantly agreed to leave the home and live at a neighbours, signing an undertaking that he would not reside at home or have contact with the children unless otherwise assessed by CP'.[19]
4. On 31 July 2014, on the application of the wife, an IVO was made for her protection, requiring that VSN not go within 5 m of her, or 200 m of her home.[20]
5. This was varied on 20 February 2015, so as to prohibit family violence, but to allow VSN to have contact his wife.[21] She said she wanted to give him another chance.[22]
6. In the meantime, VSN saw an anger management counsellor. The Child Protection records indicate this was on two occasions, 29 and 31 March 2014. VSN said this was arranged through DHS, in order to facilitate him being able to have contact with his daughter. VSN said he was not entitled to funding, and could not afford to pay for any further anger management sessions.

1. From December 2014-February 2015, VSN was in his country of origin. It appears he lived with his wife upon his return. His stepdaughters lived there too, until around April, when one or both moved out to live with other members of the wife's family.[23]
2. The wife suspected VSN of being unfaithful, and there was an argument on 15 June 2015. While she was out of the house, between 10.20am and 2.30pm, he sent her 21 abusive text messages, saying things such as 'Fuck off you filthy bitch'. When she returned, he continued to abuse her verbally, until about 8pm, when she could not stand the abuse any longer, and left. She and her daughters spent the night elsewhere. She said forty more abusive messages were sent the next day, when she went to the police. She made a statement to police in which she said she wanted the full intervention order reinstated, to protect her and her children. [24]
3. On 19 June 2015, however, the wife told police she wanted to withdraw the complaint. She had time to let things settle, and wanted to make things right with VSN.[25]
4. In this hearing, the wife's position was that she had made these reports, but they were false. She had been forced to do so by pressure from her family, in particular her mother, under threat of action being initiated against her to take her children away from her if she did not.
5. The next events in the narrative concerning domestic circumstances are described in the Secretary's submissions as follows:

(4) On 27 June 2015, the Applicant's younger step-child was reported to have bruises on her arm and back, the reporter alleging that the child had been assaulted by the Applicant.[26] Child Protection was concerned that the child's mother was 'trying to hide something';[27] > > (5) It was reported that on 18 August 2015, the Applicant assaulted the younger child by grabbing a doll and throwing it at the child's head, causing a red mark.[28] This was because the Applicant had asked the child to turn down the volume on the iPad that the child was watching.[29] The child's mother told the child 'not to say anything' offering the child a reward for not disclosing the incident;

6. Despite the wife's position, VSN was nevertheless prosecuted. On 30 November 2015, he pleaded guilty (I understand) to two charges. These were 'contravention of family violence intervention order intending to cause harm or fear for safety', and 'unlawful assault'. [30] These related to his abusive behaviour in person, and by text.[31] This constituted a breach of the IVO then in place, and also assault. It was common ground that actual physical violence did not form part of the conduct the subject of these charges.
7. No conviction was imposed. VSN was ordered to complete 80 hours of community work. I refer to these as the 2015 offences. These are the first of the three bases on which this application is characterised as category C under the WS Act.

1. VSN was also ordered to undergo a Men's Behaviour Change program. He had completed this 12 week program by 9 May 2016.[32] The Co-ordinator of that program reported in June 2016 that he:

saw some shift in awareness, but that [VSN] had "a tendency to downplay what he did" and that did not acknowledge the impact of his behaviours on [his daughter]. He also reported that "more work is required" for [VSN] to address his use of violence and recommended individual counselling. It is concerning that since this report [VSN] has been charged with the sexual abuse of [his wife's] oldest child and has also been reported to have continued to perpetrate violence, leading to [his wife and his daughter] entering the refuge system. [VSN] needs to engage with some form of longer term individual counselling to address his violence so that [his daughter] is able to have a safe and positive relationship with her father in the future.[33]

1. On 18 June 2016, one of the stepdaughters made a disclosure to a relative of the wife's, which led to her being interviewed by the police SOCIT (Sexual Offence and Child Abuse Investigation Team). She said VSN had sex with her about 4 times, between January and May 2015.[34]
2. On 22 June 2016, VSN was arrested and charged with sexual penetration of a child under 16. I refer to this as the non-conviction charge. This is the second of the three bases on which this application is characterised as category C under the WS Act.
3. In response, the wife and daughter initially moved out of the house they were sharing with VSN.[35]
4. On 20 June 2016, an IVO was ordered on the application of the police, in the light of the charge laid. This apparently applied to all three children. It prohibited any contact with them until 19 June 2024. [36]
5. On 1 July 2016, in light of the allegation of sexual abuse, VSN was issued with an interim negative notice. He did not make any submission in response to this, and on 25 July 2016, VSN's WWC assessment notice was revoked, and he was issued with a WWC exclusion.[37]
6. The most recent incident of domestic violence reported was on 2 September 2016. An officer from Child Protection recorded having received a phone call from the wife that she had fled the family home with the daughter because VSN had broken in, smashed some windows and threatened to kill her. The Victoria Police member speaking to the wife considered she was 'not being honest about the circumstances surrounding the incident or about VSN residing in the family home'.[38]
7. In this hearing, VSN denied this. He said, 'why would I just damage my own property?'[39] The wife also denied this. She denied staying at a friend's house that night. She said this was a false report made by her mother. I note, however, that the Child Protection worker who made this report indicated that the phone call had come from the wife, not from the grandmother.[40]

1. On 22 February 2017, a one-year IVO protecting VSN's daughter was imposed, on the application of the police. It is not clear exactly what caused this order to be made at that particular time.[41]
2. On 29 March 2017, a Notice of Discontinuance was entered in relation to the charge of sexual penetration of a child under 16. The Secretary sought information as to why the charge was dropped. However, the only response received is a letter from the Office of Public Prosecutions of 24 February 2022 appeared to indicate that there was no reasonable prospect of a conviction.[42]
3. In this regard, I note the applicant has produced letters apparently from the stepdaughters, which he said were written in May 2021 and sometime in 2022. These respectively said that they would prefer to live with VSN and their mother, than where they were (with other family members of the wife),[43] and that the allegations of sexual penetration were untrue.[44]
4. I also note that in the second interview of 6 January 2017, the complainant stepdaughter (then aged 10) made statements different to those in her first interview.[45] Also, VSN was away in his country of origin from December 2014 to February 2015.
5. On 12 April 2017, there was a further incident, which gave rise to the second set of criminal findings against VSN. Relatives of the wife reported to the police their observations of the daughter being in VSN's car. The police attended at VSN's residence, and found the daughter in a vehicle in the driveway.
6. VSN said in a letter to the Secretary of 6 February 2022 that his daughter, then three, was actually in the vehicle being driven by his wife, which she had parked in the drive of his home, and he was talking to her while his wife was inside, picking some things up. He admitted this was a breach of the IVO, but as a loving father, he took a risk in coming close to her in the car in the driveway and speaking to her. He also said in the hearing that he was at that time in the process of having the IVO preventing contact with his daughter varied. (This may have been in light of the sexual penetration charge having been dropped.)
7. In any event, VSN was arrested, taken to the police station, and charged with contravening the IVO.[46]
8. On 2 May 2017, an order was formally made in the County Court discontinuing the prosecution for with sexual penetration of a child under 16.[47]
9. In relation to the 2015 offences, VSN completed the Men's Behaviour course, but only completed 40 of the 80 hours of community service required. As a result, on 7 June 2017, he was found guilty of contravening his community correction order. He was also resentenced for the 2015 offences. The new sentence was an aggregate fine of $1,000, with conviction.
10. Then, on 15 June 2017, VSN pleaded guilty to 'contravene family violence final intervention order'. This was in relation to the 12 April 2017 incident where he was observed by police talking to his daughter in a car in his driveway. He was fined $500, without conviction.[48] I refer to this as the 2017 offence. This is the third of the three bases on which this application is characterised as category C under the WS Act.
11. On 30 August 2017 a varied IVO was made, with the effect that VSN was able to live with his daughter again.[49] The IVO in favour of his two stepdaughters remained. VSN said this was the result of a necessary pragmatic compromise brokered by his solicitor, in effect, a trade-off, in order to achieve an outcome whereby he could have contact with his daughter.

1. There was no reference to any events of significance occurring during this period.

1. On 22 March 2021, VSN made his application for a WWC clearance, which is the subject of this review.
2. On 5 May 2021, the existing IVO was varied to enable the two stepdaughters to have contact with VSN, if the written permission of the girls' father was provided.[50]
3. On 26 June 2021, Victoria Police provided the Secretary with information relating to the findings of guilt on 15 June 2017.[51]
4. On 23 December 2021, the Department of Families, Fairness and Housing provided the Secretary with information relating to the VSN's interactions with Child Protection.[52]
5. On 29 December 2021, the Secretary issued an interim WWC exclusion.[53]

1. On 23 January 2022, VSN made a submission in response to the interim WWC exclusion.[54] In relation to the 2107 offending, he said his wife's family were 'stalking' her. He said the sexual penetration charge was the result of a false report by his stepdaughter, having been told to make the allegation by her aunty and grandmother, with an inducement of a holiday in Queensland being offered. He was greatly aggrieved to have been falsely accused. He felt the police improperly tried to pressure him to plead guilty, with the charge only being withdrawn the day before the final hearing.[55]
2. He said the reason the IVO remained in place in favour of his two stepdaughters was because that was the only deal his solicitor could do which enabled it to be lifted in relation to his daughter. He said he regretted what had happened in the past.[56]
3. VSN said: 'Me and my wife always had a good relationship, and we never had any issues, we had to live separate due the facts I have explained above...'.[57]
4. He said he and his wife now 'understand Family violence can traumatize children's and their development and it can make a big impact on their life'.[58] This understanding came from the fact that they had both completed courses of study. She in social work, and he in criminology.
5. There was also a submission and a character reference by the wife.[59] The Secretary pointed to similarities of expression, format, and similar spelling mistakes, as occurred in VSN's submission. Also, both documents featured extremely long sentences. It was put to VSN that he had in fact written these documents, rather than his wife. He denied that. I agree these similarities do indeed raise grounds for suspicion. I note however, that in her evidence, VSN's wife supported the contents of those documents.
6. On 11 May 2022, the Secretary issued the applicant a WWC exclusion notice. A statement of reasons accompanied that notice.[60]
7. On 19 May 2022, VSN commenced this proceeding for review of that decision by VCAT.
8. On 16 September 2022, an application for resolution of the IVO then in force was heard. This was varied to become an application for variation. The outcome was that the IVO was further varied to enable the grandmother (as an alternative to the girls' father) to provide written approval for contact between the two stepdaughters and VSN.[61]
9. On 24 November 2022, that IVO (previously put in place at the request of the police for the protection of the two stepdaughters) was renewed, to the previously applicable date of 19 June 2024.[62]

1. VSN identified three events which he said have given him a greatly enhanced understanding of the harm caused by domestic violence, and his responsibilities in that regard. These were:
   • His exposure to the consequences of family violence when working in a security role at hospitals. This appears to have been around 2014. He said he worked with police and emergency services, and observed victims of family violence coming to the hospital. It was a 'wake-up call' for him.[63]
   • Completion of the Men's Behaviour Change course in early 2016. He indicated this was the most significant influence, and described it as his 'turning point'. He said he learned that he should simply walk away when he feels anger or frustration (so as to avoid responding with violence or threats).
   • Completion of core and elective subjects relating to family violence in his course at Kangan Institute.
2. VSN produced four personal references from people outside his family.[64] There were also two testimonials from his wife.
3. VSN also relied on a report dated 20 August 2022 by the psychologist Helena McCallum, following a two hour consultation on 15 August 2022. The final paragraph of this report states:

I saw nothing in [VSN's] character and temperament that would suggest he may be a danger to young people. In my opinion he is balanced and stable. He is emotionally well: his scores on the DASS21 are Normal for Depression, Anxiety and Stress. He is well qualified (completed Criminal Justice course) and is intelligent and sensible and I experienced him as having good self-awareness and solid moral values. In my opinion he would be an asset to an organization charged with the supervision and welfare of young people and others, including offenders.

1. I accept VSN's submission that he has matured and worked hard, is now discharging his family responsibilities and contributing to the community.
2. In my view, however, the emphatic denials made by VSN of any domestic violence are disingenuous, in the face of the extensive material documenting incidents which are reported to have occurred. For example, the clear reports by the wife of violent conduct in March and April 2013[65] and on 31 January 2014.[66]
3. Also, there is some inconsistency in VSN's position whereby he denies engaging in family violence on the one hand, yet he seeks to claim he has gained insight, in that he regrets what occurred in the past, has learnt from his mistakes and has been assisted by the Men's Behaviour Change program and academic studies, on the other.
4. Additionally, while there may have been prejudice and animosity towards VSN from members of the wife's family, the evidence does not satisfy me as to his contentions that Child Protection has acted dishonestly. While it is apparent VSN's relationship with his wife has endured in the face of all the pressures described above, he clearly goes too far when he says that they have 'always had a good relationship, and that 'we never had any issues'.[67]

1. The wife gave evidence which was strongly supportive of her husband.
2. Although she did not go into great detail, it was apparent from the evidence given by the wife that she had faced many challenges from early childhood. Her two elder daughters were born when she was 19 and 20 respectively. It was said their father has not had significant involvement in their lives, and they have lived in care of a number of different persons over time.
3. The wife said her family did not accept VSN. It appears, however, that she has remained loyal and devoted to him since their marriage in 2012. She indicated that things have now improved, and her mother and other family members are now more accepting of VSN, had acknowledged some wrongs done in the past, and that her relationship with her mother has improved to some degree, and that she is still working to strengthen that relationship.
4. Like VSN, the wife has a dislike of Child Protection, and has a view that they have created and acted upon false reports.
5. The wife did acknowledge that VSN had anger management issues early on, but beyond this, the effect of her evidence was generally to deny that any domestic violence occurred.
6. She laid great stress on the effect of the anger management training VSN had undergone. Her evidence was to the effect that he had worked on his anger, and 'fixed' that issue.
7. Asked when this training was, the wife said she thought this might have been 2014 or 2015. This gives rise to some uncertainty as to whether she was referring to the anger management sessions VSN attended in March 2014, or the Men's Behaviour Change program which he was required to attend two years later, over the period March-May 2016. It may be that what she was recalling was the latter, which was a 12 week program, rather than the former which was simply two sessions on 29 and 31 March 2014.
8. She said her husband does not represent any risk to children. She referred to his involvement in coaching at his daughter's cricket club and in community activities. She also referred to the trust now accorded to him by her mother, in allowing her stepdaughters to visit her and VSN at home, in accordance with the IVO currently in force.
9. The Tribunal Book contained three written statements by the wife.[68] Questions were put to her in cross-examination to the effect that these, and two of them in particular, were in fact written by VSN, rather than her, given the similarity of writing style and one particular miss-spelling which appears in both her material and VSN's. She denied that.
10. The wife's two daughters were interviewed at school, in the absence of any of the wife's other family members. They corroborated the reports of violence by VSN against themselves and against their mother. Yet the wife firmly asserted in the hearing that they only made these statements because they were coerced into doing so by members of her family.

1. It was clear from the wife's evidence that she has a strong desire for VSN to receive a WWC clearance, as this will open more doors for him in terms of possible employment.
2. While I accept her evidence generally on contextual matters, and doubtless she has faced many challenges, in my view, the wife's denials of domestic violence having been carried out at all, particularly in 2013-2015, stretch credibility too far.
3. I can well accept that in the light of events which had occurred, she was concerned about having her daughters taken away from her. But her evidence that she was forced to make the allegations she is reported to have made 2013-2015, and that they are false, and that her daughters had been bribed to make false allegations of domestic violence, also stretch credibility too far.
4. When pressed on these inconsistencies, the wife retreated to either refusing to answer or saying she had blanked things out.
5. The wife's evidence implied a troubling and complex family history. The purpose of this case is not to determine the rights and wrongs of what occurred in the past in that regard. It is to consider the evidence relevant the level of risk which children would face from VSN, and the attitude of reasonable parents to him having direct contact with their child while he is engaged in child-related work.
6. While the story concerning her own family seems a much more positive one now, the evidence she has given relative to the criteria under the WS Act gives rise to misgivings.

Submissions by VSN concerning Child Protection reports

1. VSN correctly submitted that the Child Protection records do not constitute proof that particular incidents occurred. I accept that.
2. I also note the reports contain speculation about matters relevant to the protective work which Child Protection is required to carry out. Much of that material is not necessary to refer to here. Nevertheless, the Child Protection reports are evidence which I should, and do, take into account in determining this application, albeit mindful that they do not constitute proof, and could in some instances be prejudicial to VSN.

Non-conviction charges must be considered by the Tribunal. The Tribunal undertakes the mandatory legislative risk assessment, not to reverse or impugn the finding of a criminal court, but to determine whether or not a particular person can or should be granted a WWC clearance.[69]

...

Bearing in mind the circumstances resulting in the non-conviction charges, the Tribunal may give no weight to non-conviction charges that have resulted from an acquittal and where there is no reason to consider there is any basis to the allegations that gave rise to the charges.[70]

But in other cases, it is appropriate to give weight to non-conviction charges having regard to the circumstances. For example, in the case of acquittals, where the allegations giving rise to them, are 'not without foundation',[71] or where there is a 'possibility' that the applicant committed the offences alleged.[72]

Where charges are withdrawn prior to the testing of evidence, there may be no basis to give adverse weight to them. In JDH v Secretary to the Department of Justice and Regulation [2019] VCAT 18, charges had been struck-out with the applicant having no case to answer; accordingly, there was no basis upon which the Tribunal could draw adverse findings against the applicant.[73] But in WHI v Secretary to the Department of Justice and Community Safety [2021] VCAT 990, the Tribunal was unwilling to give 'substantial adverse weight to the allegations which underpinned the criminal charges', given the uncertainty surrounding the evidence.[74]

1. The Secretary submitted was that there was not sufficient evidence to give the non-conviction charge any weight.
2. I am conscious that the non-conviction charge is of the utmost seriousness.
3. Having read the two police interviews given by the complainant stepdaughter, six months apart, I agree with the Secretary that they are not consistent, and it is not surprising that the charges were discontinued. I also note the brief handwritten statement by the complainant stepdaughter (produced by VSN) said to have been made in 2022 which says the allegations she made six years earlier were not true, and making a reference to the circumstances in which they were made.
4. In the circumstances, I accept the Secretary's submission that the non-conviction charge should not be given weight. I have not referred to it in the s 108 analysis below.

Section 108 of the WS Act - the 10 s 65(2) considerations

1. I now consider the criteria under s 108. While these provide a framework within which the overall question of risk, reasonable person perception and public interest is to be considered, the individual considerations are not discrete. They overlap. Hence, considerations described under the heading for one factor are relevant to others as well. For the sake of concision, they are not always repeated.

Section 65(2)(a) - the nature and gravity of the offence and its relevance to child-related work

1. The most serious of the triggering offences are the 2015 findings of 'contravention of family violence intervention order intending to cause harm or fear for safety', and 'unlawful assault'. Although these were played down by both VSN and his wife, it is clear from the fact that the wife felt it necessary to go to the police, and from her statement made to police on 16 June 2015, that there were significant concerns about VSN's 'abusive and confrontational' behaviour, and his breaches of the IVO in place for the protection of the wife and the daughters.
2. In addition to the barrage of abusive text messages, the wife's statement quoted VSN as saying, 'Don't push me to get angry. I'll do something I don't want to do'. It described her going to another person's house to stay, chosen because the location was not known to VSN. It stated she wanted to reinstate 'a full intervention order to protect me and my children'.[75]
3. The Secretary submitted that the conduct the subject of the 2015 and 2016 offences should be considered in its context, namely, an ongoing series of episodes of reported domestic violence and controlling behaviour over the period 2013-2016. I accept that the conduct surrounding the actual triggering offences is relevant and should be taken into account as part of consideration of the criteria under s 108.
4. Even if the particular details could be contested, it is clear that there was an ongoing series of episodes of concern. The conduct is obviously relevant to child-related work, given that it involved threats, violence and controlling behaviour towards children.
5. As is apparent from the above narrative, there was a long sequence of IVOs put in place to protect the wife and children. Indeed, an aggravating aspect of the 2015 and 2016 offences is that they occurred in breach of intervention orders which the Court had seen fit to put into place. That is, even though Court orders had been imposed, these did not stop the offending behaviour.

Section 65(2)(b) - the period of time since the applicant committed the (alleged) offence

1. The 2015 and 2017 offences were committed almost eight years ago, and six years ago, respectively.
2. It appears the domestic arrangements are more stable now, and that is positive. However, the passage of time has greatest positive effect when there has been the development of insight over that period. Of concern in this regard is the fact that VSN and his wife have both played down the extent of the problems during this period, indicating a lack of understanding of the potential harm which such behaviour can cause. This gives rise to reduced confidence that it will not occur again.

Section 65(2)(c) and (d) - whether a finding of guilt or conviction was recorded for the offence, and the sentence imposed

1. There was a finding of guilt for the 2015 and 2017 offences, but at sentencing no conviction was imposed.
2. The penalty for the 2015 offences of 'contravention of family violence intervention order intending to cause harm or fear for safety', and 'unlawful assault', was 80 hours of community work, and the completion of a Men's Behavioural Change Program'.
3. VSN only completed 40 hours of community work, and on 7 June 2017, was resentenced. He received a fine of $1,000, with conviction.
4. For the 2017 offence of 'contravene family violence final intervention order' (where he had contact with his daughter in a car in the driveway) he was fined $500, without conviction.

Section 65(2)(e) - the ages of the applicant and of any victim at the time

1. In June 2015, VSN and his wife were both 28 years old. Her two daughters were nine and seven respectively.
2. On 12 April 2017, both VSN and his wife were 29 years old, and her daughters were 10 and nine respectively. The daughter of VSN and his wife was almost four years old.
3. Obviously the IVOs were in place to protect young children, for the reason that they are inherently vulnerable.
4. The Secretary also submitted that the evidence overall indicated a power imbalance between VSN and his wife, manifested in a reportedly abusive and controlling relationship. Once again, I accept that while the details may be disputed, there is sufficient evidence that this occurred to some degree.

Section 65(2)(f) - whether or not the conduct has been decriminalised

Section 65(2)(g) - the applicant's behaviour since the alleged conduct

1. There is nothing adverse to VSN in terms of reports of family violence since the last of these, in November 2016, six and a half years ago.
2. He has undertaken the Men's Behaviour Change program in 2016, and covered family violence in the course of his studies. I deal with these matters below.

Section 65(2)(h) - the likelihood of future threat to a child caused by the applicant

1. The Secretary's written submissions stated as follows:

The Applicant has repeatedly blamed others for his conduct and shown himself as a victim. This shows a lack of insight into his own responsibility for his actions towards children. Aside from the men's behavioural change program coordinator, the Applicant has stated that he did not consider the offences in 2015 were his fault - his wife should not have gone to the police, and [he] appears to believe that the messages he sent were 'fine' if it was in response to his wife doing something 'wrong'.[76] The Applicant appears to have blamed his wife's mother for his wife not wanting to live with him.[77]

Child Protection has noted, as early as February 2014, that the Applicant presented as 'vague, guarded and lacking insight into protective concerns',[78] 'dismissive' of the allegations, and gave inconsistent information to Child Protection.[79] Child Protection had concerns as to the level of honesty of the Applicant and his wife with respect to the incidents the subject of Child Protection's investigation.[80]

The Applicant's current lack of insight into the needs of children - as opposed to his own needs - is made stark when considering the Applicant seeks to provide supporting material from his children in these proceedings.

There are instances where the Applicant appears to have reacted with hostility when challenged; that is, in 2014, he acted aggressively towards Child Protection and resorted to verbal abuse.[81] And in September 2016, he was aggressive to Child Protection with respect to scheduled contacts with his child.[82] That was some four months after the Applicant completed his men's behaviour change program: the Tribunal should draw the inference that the behaviour change program did not sufficiently address the Applicant's insight or anger management issues.

1. I am satisfied on the evidence as a whole that even if not every report or speculative comment in the Child Protection reports is accurate, VSN did engage in threatening, at times violent, and controlling behaviour towards his wife and two stepdaughters.
2. I do not find the blanket denials by VSN and his wife credible, in the light of the evidence overall.
3. This indicates a lack of insight, since one cannot have confidence a problem has been rectified, until it has been properly recognised. That means that the risk of future threat to a child is higher than it would be if the problem had been recognised.
4. Thus I find it is clear there was conduct which requires remediating action on VSN's part.
5. There is some evidence of such remediating action. But it is not substantial.
6. The Child Protection records indicate that VSN had several discussions with an anger management councillor in 2014. VSN did not lay great stress on these. This is appropriate, given there were only two sessions, two days apart, in March 2014.
7. VSN and his wife both laid great emphasis on the Men's Behaviour Change program which VSN undertook in early 2016. He said in evidence that he learned he should simply walk away when feeling frustrated or angry.[83] She said his attending that course had 'fixed' the problem.
8. In my view, their evidence placed too much reliance on the fact of that course having been completed. As noted, the co-ordinator expressed some reservations, and indicated follow-up action was required, which did not occur.
9. VSN has engaged in study, including completing a Criminal and Justice Diploma, and he is undertaking a psychology degree. He said that family violence was a subject, or topic, covered in his diploma. However, he was vague about these subjects, and no documentary evidence about these was produced. It was not clear what specific insights he gained from them.
10. While I accept that the Men's Behaviour Change program and the academic study are both steps in the right direction, it was not demonstrated that they have brought about the significant change in mindset, which is required for there to be satisfaction that the likelihood of a future threat to children has been sufficiently reduced.
11. In particular, the report from the co-ordinator of the Men's Behaviour Change program certainly did not indicate that the problems had been 'fixed' once and for all. It said that while there had been 'some shift in his awareness', VSN still had 'a tendency to downplay what he did'. The evidence in this hearing by VSN likewise demonstrated that tendency to downplay his earlier conduct.
12. Similarly, I was left unconvinced that VSN had really come to a full understanding of the impact of his behaviour on his daughter, as identified in the co-ordinator's report.
13. The co-ordinator's report indicated that further steps needed to be taken for VSN to address his use of violence. He needed to engage in some form of longer term individual counselling. That has not occurred.
14. There is a lack of evidence to give confidence that VSN has really undergone that change of mindset, as opposed to simple assertions by him and his wife that this is the case.
15. The report from the psychologist, Ms McCallum, dated 22 August 2022 does not fill this gap. It is derived from a single two-hour interview with VSN. It is not apparent she had access to material from any other source than what VSN conveyed to her in that consultation.
16. It comprises three substantive paragraphs. The first relates to the sex abuse non-conviction charge. It said one of the children was bribed to claim that VSN had abused her. It said VSN 'pursued his innocence, even when the police suggested he plead guilty. The case was dropped when the child concerned acknowledged the truth'. (As noted, I have accepted the Secretary's submission that the non-conviction charge should not be given weight in this s 108 analysis.)
17. The second paragraph says he 'comes from an educated, supportive family background', and has a stable marriage which has helped him to cope with an extraordinarily stressful period in his life. The third paragraph is quoted above.
18. I agree with the submission of the Secretary that this report is of very little use in carrying out the s 108 analysis. It takes no account of the substantial volume of information relevant to this analysis which is included in the Tribunal Book, especially the records of Child Protection, Corrections Victoria and of the Secretary relating to the decision making process.
19. For completeness, I also mention the report by the psychologist, Mr Greg Asher of 24 November 2015. This was prepared for the purposes of VSN's court appearance on 30 November 2015, for the texting and IVO breaches of June 2015. This states that VSN had commenced treatment with Mr Asher on 17 November 2015. It referred to 'his lack of medication on the day in question' which exacerbated his stress levels beyond what they had ever been before and he found himself acting uncharacteristically'.[84] The report stated that VSN was willing to undertake ongoing psychological treatment and was committed to being medication compliant. (I note there was no other reference in this case to medication.) Also, that there has been a full reconciliation and VSN and his wife were living together happily again.
20. There was no evidence given to VCAT of treatment with Mr Asher continuing beyond 17 November 2015. Rather, it appears that VSN relied on the Men's Behaviour Change program he completed in early 2016.

Section 65(2)(i) - any information given by the applicant

1. VSN produced four personal references from people outside his family.[85] Two of the references were in support of his application for Australian citizenship, which he said he achieved in 2022. These indicated an awareness of his criminal history. The two other references were in support of VSN's working with children application. These expressed the view he could be trusted with children. I take these references into account.

Section 65(2)(j) - any other matter relevant to the application

To the extent not already considered, the Tribunal should give significant adverse weight to the existence of a family violence intervention order against him.

Under section 74(1) of the FVP Act, the Court may make a final order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again. Therefore, there must have been family violence and there must be a risk of future violence. In this case, the Applicant agreed to the order being made, but the order was made following a hearing.[86]

The continued existence of the family violence intervention order should lead to the Tribunal to accept that under the law, the step-children remain in need of protection from the Applicant, which is afforded by the intervention order, even with the physical separation between them.

That is, the law does not trust the Applicant to be in the presence of the children protected by the order for fear of a risk of family violence. Neither should the Tribunal trust the Applicant to engage in child-related work at least until the family violence intervention order has lapsed and the Applicant has demonstrated through the passage of time, that he is not a threat to the step-children.

1. I accept this submission. There has been a succession of IVOs since March 2013, for the protection of the wife, and the daughters. Apart from a few months early on, IVOs in one form or another have been in place for over 10 years. VSN and his wife have suggested the present IVO, to 19 June 2024, will be the last. But that remains to be seen.

Section 108(1) - conclusion in relation to the risk factors in s 65(2)

1. Weighing up the s 65(2) considerations, and in the light of the analysis above, I find it is appropriate to refuse a WWC clearance. The major factors leading to this conclusion concern the threatening, violent and controlling conduct engaged in (albeit I accept that not every report should be taken as conclusively proved), the fact that VSN has sought to unduly minimise his behaviour, indicating a lack of insight, lack of informed psychological evidence, and the existence of IVOs, which have continued for more than 10 years.

Section 108(2)(a):[87] Would a reasonable person allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work?

1. This consideration relates to the response which a reasonable person (ie parent) would have to the prospect of VSN having direct contact with their child while engaged in any type of child-related work. That would include a scenario where the applicant is alone in charge of that person's own child in circumstances where the child might be behaving badly, or annoyingly.
2. In my view, such a reasonable parent would not want VSN to have that responsibility. That person would be conscious that he had treated the daughters of his partner in the way described above (albeit that not every detailed allegation is regarded as having been proved) and that, notwithstanding the passage of time, rather than acknowledge what has occurred, he has denied or minimised it.
3. This would give rise to concern not just that VSN lacks an understanding of the impact of potentially harmful behaviour on children, and therefore that he would be more likely to engage in it and tolerate it, but also, that he might be less likely to be fully frank about it if it did occur.
4. The continued existence of the IVO would be a significant concern for such a reasonable parent.
5. In my view, this criterion is not satisfied. That in itself comprises a basis on which the application for a clearance must be refused.

Section 108(2)(b): Would the applicant's engagement in any type of child-related work not pose an unjustifiable risk to the safety of children?

1. In accordance with the analysis of the s 65(2) factors above, it cannot be said this criterion is satisfied.[88]

Section 108(3): Is it in the public interest to give a clearance?

1. In light of the above findings, it is not strictly necessary to consider this criterion.
2. VSN is pursuing employment in the justice and corrections sector. He indicated a WWC clearance it is not essential, but will broaden the opportunities for him to obtain employment in this sector.
3. It is apparent that it would in a broad sense, be in the public interest for a person such as VSN, who has pursued vocational training in this area, to work in the field of justice and corrections. But there is no more specific public interest than that.
4. I am also conscious, as noted above, that the paramount consideration, when originally added to the WWC Act in 2014, was said to be to put beyond doubt that the protection of children is a more important consideration than any other, such as the individual's right to work.

1. The Secretary's decision refusing the application for a WWC clearance is affirmed.

[1] By order of 13 April 2023 under the Open Courts Act 2013, the applicant is to be referred to as VSN. This is to protect his family members, including children, from unreasonable invasions of their privacy.

[2] WS Act, s 1(b). See also Maleckas (LKQ) v Secretary, Department of Justice [2011] VSC 227; (2011) 34 VR 23,

[3] Victoria, Parliamentary Debates, Legislative Assembly, 7 August 2014, 2651, 2653 (Robert Clark, Attorney General)

[5] The decision for the Secretary on the first limb of the statutory test is described in terms of whether there is an 'unjustifiable risk'. That expression is not used in describing the Tribunal's task on review under s 108(1). However, nothing turns on this, as the same factors are to be taken into account.

[8] Child Protection (CP) Intake Report on Unborn dated 15 April 2013, TB 804.

[9] CP Intake Report on Unborn dated 15 April 2013, TB 817.

[10] CP Intake Report of 15 April 2023, TB 804.

[11] Supplementary Tribunal Book relating to IVOs (IVO TB) at 1.

[12] CP Confidential Court Report dated 16 April 2014, TB 736.

[13] CP Closure Summary dated 24 February 2015, TB 686.

[14] CP Confidential Court Report dated 16 April 2014, TB 739.

[15] Report from Child Protection to the Secretary of 23 December 2021, TB 29.

[25] Further statement by the wife, 22 June 2015, TB 174.

[26] CP Intake record, 14 July 2015, TB 645-656.

[28] CP Intake Record dated 14 September 2015, TB 630.

[33] Summary by Child Protection of the program co-ordinator's conclusions, TB 480.

[38] CP Confidential Court Report - Addendum Report dated 15 September 2016, TB 489.

[40] CP Confidential Court Report - Addendum Report dated 15 September 2016, TB 489.

[50] Supplementary material provided by the Secretary.

[52] Report from Child Protection to the Secretary of 23 December 2021, TB 29.

[53] Interim Exclusion dated 29 December 2021, TB 38.

[55] As noted, the formal County Court order for discontinuance was made on 2 May 2017. Yet the letter from the Director of Public Prosecutions advising of the decision to discontinue was dated 29 March 2017. It is not clear how it was that VSN was only made aware of the prosecution having been discontinued the day before the final hearing.

[56] I note this response did not refer to the 2015 offending, as that was not stated as a basis of the interim exclusion of 29 December 2021.

[60] Exclusion notice dated 11 May 2022, TB 77.

[61] Supplementary material provided by the Secretary on 13 April 2023.

[67] Statement by VSN of 23 January 2022, TB 42 at 44.

[69] Wong v Secretary to the Department of Justice and Community Safety [2021] VCAT 821.

[70] See eg, TVC v Secretary to the Department of Justice and Community Safety [2022] VCAT 1035.

[71] MDE v Secretary to the Department of Justice and Community Safety [2022] VCAT 742.

[76] Corrections Victoria file note dated 20 January 2016, TB 247.

[78] Confidential Court Report: Application and Disposition Report dated 16 April 2014, TB 738.

[82] Confidential Court Report: Addendum Report dated 15 September 2016, TB 489.

[86] IVO made on 5 May 2021 for the protection of the two stepdaughters to 19 June 2024, TB 57.

[87] I note here that the Secretary's submissions referred to the numbering under a previous version of the Act. It is clear, however, from the submissions which provisions they are referring to in each section of the submissions.

[88] In this regard, the comments of the Court of Appeal in OUX v Victorian Civil and Administrative Tribunal [2018] VSCA 178, (Priest, Beach and Weinberg JJA) at [38] to the effect that it is difficult to see that the 'any type of child-related work test' adds anything to the manifold factors set out in the first limb, although made with reference to a category A application made under the WWC Act, apply equally here, in relation to s 108.