Tucker and Minister for Immigration and Citizenship [2010] AATA 559 (26 July 2010)

Last Updated: 27 July 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 559

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S 1820 of 2010

General DIVISION		)
	Re		CLIFFORD TUCKER

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Justice Buchanan and Senior Member Isenberg

Date 26 July 2010

Place Sydney

Decision

The Tribunal affirms the decision of a delegate of the Minister for Immigration and Citizenship, made on 27 April 2010, to cancel the applicant’s visa.

..................[sgd]............................
Justice R J Buchanan
(Presidential Member)

CATCHWORDS

Visa cancellation – character test – reduction in apparent level of violent conduct – significance of expert evidence about risk – best interest of the children – visa cancelled

RELEVANT ACT/S

Migration Act 1958 (Cth) ss 499, 501

REASONS FOR DECISION

26 July 2010

Justice Buchanan and Senior Member Isenberg

1. Mr Tucker is 46 years old. He is a citizen of the United Kingdom. He came to Australia with his parents when he was six years old and, apart from a short holiday in Bali late in 2008, has remained in Australia without interruption ever since. He has a long history of violence for which he has served significant periods of imprisonment.
2. On 19 November 2009 Mr Tucker was advised in writing that consideration was being given to the cancellation of his visa (a Class BB Subclass 155 Resident Return visa granted on 28 November 2008). Mr Tucker was told that if his visa was cancelled he would be removed from Australia. The letter to him was sent shortly after he had been sentenced for offences of violence in the Magistrates Court of South Australia, to which reference will be made again later. On 27 April 2010 a delegate of the Minister decided to exercise his discretion under s 501(2) of the Migration Act 1958 (Cth) (“the Act”) to cancel Mr Tucker’s visa. That decision was conveyed to Mr Tucker in writing on 6 May 2010. Mr Tucker has now applied to the Tribunal to have the delegate’s decision set aside and for the Tribunal to substitute a decision that his visa not be cancelled.
3. Under s 501 of the Act the Minister (or a delegate) may cancel a visa that has been granted to a person if that person does not pass the character test stated by s 501(6) of the Act. Amongst other reasons, a person does not pass the character test if he or she has a substantial criminal record as defined by s 501(7). One example of a substantial criminal record is if a person has been sentenced to a term of imprisonment of 12 months or more or has been sentenced to two or more terms of imprisonment where the total of those terms is two years or more.
4. Mr Tucker does not pass the character test. He has been sentenced to substantial terms of imprisonment. One of them was for more than 12 months. In aggregate they exceed two years.
5. A decision to cancel the visa of a person who does not pass the character test involves the exercise of a discretion. Under s 499 of the Act the Minister may give directions about the exercise of functions or powers under the Act. On 3 June 2009 the Minister for Immigration and Citizenship issued “Direction [no. 41] – Visa refusal and cancellation under s 501” (“the Direction”). The Direction commenced on 15 June 2009 and therefore applied to consideration of the cancellation of Mr Tucker’s visa. It also applies to consideration of his application for a review of the delegate’s decision.
6. The following matters are stated in the Direction by way of “General Guidance”:

5.2 General Guidance
...
(2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a) the nature of any harm that the person concerned may cause to the Australian community; and
(b) the risk of that harm occurring.

(3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.

(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.
...

7. Mr Tucker is in the situation contemplated by clause 5.2(4) of the Direction. He is part of the Australian community even though he is a citizen of the United Kingdom, a country he has not seen since he was six years old. One question which arises as a result is whether the Australian community should accept “more risk” from Mr Tucker because of those factors.
8. In Part B of the Direction about the exercise of a discretion to cancel a visa a number of “primary considerations” are stated. In addition, a number of “other considerations” are identified. Primary considerations are to be taken into account in every case, other considerations are to be taken into account where relevant but, in either case, only directly relevant considerations should be taken into account. The primary considerations relevant to Mr Tucker’s application are set out in clause 10 of the Direction as follows:
   10. The primary considerations
       

(1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child ((CROC);
...

9. Clause 10.1 directs:

10.1 Protection of the Australian community

(1) Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2) The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.

10. The objectives referred to in clause 10.1(1) are stated in clause 5.1 of the Direction in the following terms:

5.1 Objectives

(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.

11. Clause 10.1.1, by way of further discussion of the protection of the Australian community, states the following:

10.1.1 The seriousness and nature of the conduct

(1) Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.
...

12. A number of examples are given of offences and conduct that are considered serious. They include: grievous bodily harm, reckless injury, assault and aggravated assault. They also include convictions for attempting to commit certain offences, including murder. The matters we have identified are directly relevant to Mr Tucker’s criminal history. A note to clause 10.1.1 also makes it clear that robbery is a serious offence and that armed robbery is an aggravated form of that offence. That is also relevant to Mr Tucker’s criminal history. Attention is also directed to the following matters (so far as they are relevant to Mr Tucker’s circumstances):

10.1.1 The seriousness and nature of the conduct

...
(3) The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including:
(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.

(4) The following factors are also to be considered:
(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b) any relevant factors the person provides as mitigating factors;

...

13. Clause 10.1.2 deals with the risk that conduct may be repeated:

10.1.2 The risk that the conduct may be repeated

(1) The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2) The following factors are to be considered as particularly relevant to this assessment:
(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.

14. The following matters are also relevant in Mr Tucker’s case, given that he was only six years old when he began living in Australia and that he has been ordinarily resident in Australia for over 40 years:

10.2 Whether the person was a minor when they began living in Australia

(1) If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
...

10.3 The length of time that a person has been ordinarily resident

(1) Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.

15. The Direction also requires attention to the best interests of Mr Tucker’s children. Clause 10.4.1 directs, relevantly:

10.4.1 The best interests of the child

...
(3) If there are two or more relevant children, it is not to be assumed that the interests of each child will coincide. It may be that the best interests of one child may indicate that the person should not be refused a visa or have their visa cancelled and be removed from Australia, whereas the best interests of another child may not be adversely affected by visa refusal or cancellation and removal. The best interests of each child should therefore be given individual consideration.
(4) Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. Factors, which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:
(a) any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
(5) In considering the best interests of the child, the following factors are to be considered:
(a) the nature of the relationship between the child and the person, for example, a relationship that has parental rights or regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child;
(b) the duration of the relationship, including the number and length of any separations and reason/s for the separation;
(c) the extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday;
(d) the child’s age;
(e) whether the child is an Australian citizen, permanent resident or New Zealand citizen;
(f) the likely effect that any separation from the person would have on the child;
(g) the existence of other persons who already fulfil a parental role in relation to the child;
(h) the impact of the person’s prior conduct and whether that conduct has, or has had, a negative or positive impact on the child;
(i) the time that the child has spent in Australia;
(j) any Court orders relating to parental access and care arrangements;
(k) any known wishes expressed by the child;
(l) whether the child is likely to accompany the person overseas in the event the person is removed from Australia;
(m) the circumstances of the probable country of future residence, including the educational facilities and the standard of the health support system (if any) of the country should the person not be permitted to enter or remain in Australia but taking into account that a higher standard of health, education or other services in Australia does not of itself mean that a non-citizen child should not be removed to another country;
(n) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(o) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children generally adapt to new circumstances.

16. Clause 11 sets out “other considerations” which may be relevant but directs that, generally, they should be given less weight than that given to primary considerations. They include (so far as relevant to Mr Tucker’s case) the extent of disruption to his family, whether he has any links in the United Kingdom and whether hardship is likely to be experienced by him or his immediate family members. Another consideration is whether Mr Tucker has previously been advised that his visa might be cancelled on account of his conduct.
17. The assessment of Mr Tucker’s application must therefore take into account the interaction of two sets of circumstances: factors personal to Mr Tucker and matters given priority and prominence by the Direction. Factors involving consideration of personal inconvenience or hardship must be assessed in a context where Federal Parliament has authorised the executive government to specify and direct what factors will be most important in the exercise of a discretion to cancel, or not cancel, the visa of a person who does not pass the character test. It is clear from the Direction that much more needs to be taken into account than the personal circumstances and desires of a person at risk of losing their visa. In particular, the protection of members of the Australian community, as assessed in accordance with the Direction, plays a very significant part in the required assessment.

MR TUCKER’S CRIMINAL HISTORY

18. Mr Tucker has a long history (apart from periods when he was in prison) of serious and harmful conduct towards others. Alcohol and drugs appear to have played a significant part in his behaviour.
19. Mr Tucker’s recorded criminal history appears to have commenced when he was 11 years old. He was found to have broken into premises. In 1977, when he was 13 years old, he was convicted of larceny. He was subsequently convicted at the ages of 15, 16 and 17 years of various further offences including larceny, breaking into a building, destroying or damaging property and making illegal use of a motor vehicle. At 18 years of age his convictions for assault commenced. While 18 he assaulted police, committed common assault, committed larceny and carried an offensive weapon. At 19 years of age his conduct escalated. He damaged property, hindered police, breached his bond, assaulted police and then, on 27 August 1983, entered Christie’s Beach Police Station in South Australia armed with a pistol which he fired at a police officer four times, one bullet wounding the officer in the groin. He was convicted of attempted murder and sentenced to 12 years in prison with a non-parole period of 11 years. The sentencing judge found that despite his ingestion of alcohol and drugs he was fully aware of what he was doing and intended to fire the shots in question. The sentencing judge concluded that he intended to kill the police officer.
20. Mr Tucker was released from prison in 1991. Within two years he again damaged property and committed assault. He was now 29 years old. His parole was cancelled and he was sentenced to three years and seven months in prison with a six month non-parole period. About 15 months after his release on that occasion, now aged 31 years, he entered Christie’s Beach Police Station with a piece of timber and began trying to smash a bullet-proof glass partition. He resisted arrest and assaulted a police officer. He was sentenced to a little under two years and eight months imprisonment with a non-parole period of 20 months. He was released in August 1997. About 12 months later, now aged 34, he became involved in a struggle with two security guards at the rear of an hotel while wearing a balaclava with a replica pistol in his possession. He was convicted of assault and sentenced to six years imprisonment with a non-parole period of eight months. On this occasion the sentencing judge took into account that he appeared to be making genuine efforts to rehabilitate himself and that he had not been taking drugs or alcohol for some months before sentence was passed.
21. After a further, but relatively short, period in prison, Mr Tucker was released on home detention and in February 2000 was released into the community. Over the next several years Mr Tucker was charged and convicted of cultivating cannabis on two occasions. On the second occasion he was fined.
22. In 2009 Mr Tucker was convicted again of assault on two occasions separated only by a matter of days. On the first occasion he struck a neighbour in the face with a beer bottle and on the second occasion he threatened police and threw a beer bottle at them. He was heavily intoxicated on each occasion. The magistrates who dealt with him appear to have accepted that his intoxication and conduct on these two occasions were the result of Mr Tucker’s grief on the death of his father. In the circumstances of the present application, however, that serves to draw attention to the difficulty which Mr Tucker has in controlling his behaviour when under emotional stress, rather than assisting him in any suggestion that there need be no reason to be apprehensive about his future conduct.

MR TUCKER’S RELATIONSHIP WITH MS TURNER AND HIS CHILDREN

23. Apart from the recorded history to which we have referred, evidence was given in the present case by Mr Tucker’s ex-partner, Michelle Turner. She was in a relationship with Mr Tucker between 1991 and June 2001. Three children were born in the relationship. All three children were born while he was in prison. Mr Tucker indicated in his evidence that at present he speaks with his children two to three times a week in general. His physical contact with them is limited. Since his separation from Ms Turner the oldest and youngest children (Paige and Ciaan) have lived with their mother. Their son, Brody, lived with his father for about six years. During this period Mr Tucker said that he saw his two daughters every Saturday evening at his sister’s place and then spent each Sunday with them before taking them to school on Monday morning. He alleges that Ms Turner began to make it difficult for him to see his children in about 2008, when Brody returned to live with his mother.
24. Mr Tucker deposed to seeing his children as often as he could and to being concerned that if he is deported his children “will not get the discipline and the additional emotional support they need from [him]. Their mother does not supervise or discipline them at all. Nor will I be able to support them in their sporting activities or be able to offer hands-on guidance”. He complains bitterly that his children have been kept from him by Ms Turner, particularly since 2008, but does not appear to acknowledge that in this period he was, until recently, drinking heavily every day.
25. Mr Tucker began drinking heavily again about the beginning of 2008, six months before the death of his father, who was terminally ill. Mr Tucker’s father died on 8 July 2008. Mr Tucker continued to drink heavily. In early 2008 Brody chose to go and live with his mother. Ms Turner appears not to have encouraged Mr Tucker’s contact with his children after that. That does not seem surprising, although Mr Tucker evidently resents it.
26. Ms Turner deposed that, except for the first six months or so of their relationship, Mr Tucker was often violent towards her. He drank a lot of alcohol and smoked “dope” on and off for the whole time she has known him. She said he was more aggressive “when he was off the dope than when he was on it”. Ms Turner deposed that violence, and the threat of violence, continued after the relationship terminated in 2001. She attached affidavits affirmed in 2002, 2003 and 2008 for use in various proceedings involving Mr Tucker where she deposed to such matters. She said that Mr Tucker had threatened to kill her a number of times and had also indirectly threatened to kill their children. At one point, relatively recently, he delivered a Christmas card to the house of her current partner. It read as follows:

Mark,

Michelle has destroyed my relationship with my children by involving them with adult problems. I love my children, it’s Michelle who I hate for what she has done. Unless my relationship is returned to how it was and I get to see and speak to my kids I will take the appropriate action, and then we all lose.
Cliff
P.S. She won’t even try to resolve the problem, at least you may be able to talk some sense into her.

27. Although Mr Tucker denied it, the underlying menace in this communication is unmistakable. It is not clear that the implicit threat in Mr Tucker’s words referred to the possibility of harm to his children. Mr Tucker was adamant that he would never seriously harm his children but admitted threatening Ms Turner on a number of occasions. Mr Tucker denied he threatened to kill her, in any meaningful sense, but the words he used, on his own evidence (“If you do that, you’re dead, bitch”), seem certainly to be ones which might be understood that way.

ALCOHOL AND AGGRESSION

28. At times of emotional stress Mr Tucker turns to alcohol. He appears to acknowledge the destructive effect on his life of alcohol and drugs, particularly his excessive intake of alcohol. Mr Tucker’s evidence was that he had virtually stopped drinking alcohol since 2000 apart from a six month period reacting to the death of his sister, and then again before and after the death of his father in July 2008. It was in the latter period that the most recent offences of assault were committed.
29. His evidence was, so far as the future was concerned, that he has formed a strong resolve not to ever drink, or to use cannabis, again.
30. It was argued on Mr Tucker’s behalf in the present proceedings that Mr Tucker had moderated his behaviour and controlled his aggression in recent years with sufficient success that the risk of further violent behaviour from him should be assessed as only moderate. When account was taken of the personal hardship which would be caused to him, and members of his family, if his visa was cancelled the conclusion was open, it was submitted, that the factors against cancellation outweighed those which support it. The arguments put on Mr Tucker’s behalf have some support in the evidence. We shall refer to some of those matters in the discussion which follows. There is more than a superficial attraction in the idea that it is a long time since Mr Tucker has been found to have set out to cause serious deliberate harm to another but that contention needs also to be assessed in the context of the expert evidence to which we will refer shortly.
31. It is in his relationship with his ex-partner, Ms Turner, that there appears the most consistent evidence of violence and threats of violence by Mr Tucker in the last 15 years but even these complaints must be seen in a broader context. There appears no doubt that, with their relationship completely fractured, Mr Tucker and Ms Turner distrust and dislike each other intensely. That was clear from the way that each of them gave evidence about the other. Neither made any secret of it. However, Ms Turner chose to remain in a relationship with Mr Tucker for many years during which she says he treated her aggressively and sometimes violently. She accepted in her evidence that during their relationship she also acted aggressively. She also drank heavily at times. They had three children during that period.
32. After the relationship broke down in 2001 Ms Turner obtained three restraining orders against him at different times. Although she complained in her evidence that they were frequently breached there does not appear to have been any proceedings commenced against Mr Tucker as a result, either by her or by the police. Although Ms Turner complained of many threats of harm to her, including threats to kill her, there does not appear, to date at least, to be evidence of any particular occasion which would qualify as a confrontation serious enough to be regarded as a significant escalation from the pattern of behaviour established while they were still seeing each other and she was prepared to remain in a relationship with him. Cancellation of Mr Tucker’s visa would not be justified just to intervene in their interpersonal difficulties.
33. From the age of about 18 years old until at least 1995 (a period of about 13 years) Mr Tucker’s conduct was marked by overtly violent behaviour but the incident of intended robbery in 1998 appears to mark a shift in judicial reaction. Although Mr Tucker was convicted of assault in relation to this incident that appears to have been the result of him being discovered as he was about to attempt a robbery. Unlike the occasion of attempted murder in 1983 he was not carrying a handgun, even an unloaded one. A replica pistol is obviously intended to alarm but, objectively, the risk presented by it is much less (at least physically) than a loaded gun. Judge Bright said the following things when he sentenced Mr Tucker:

You have a lengthy history of serious offences. Mr Mead has run through them in some detail. I have read the various reports that have been handed up today. I think it is fair to say that, although you have made some attempts at rehabilitation before this year, this year has marked your first really serious attempt when you went to the Woolshed in January. The Woolshed has reported favourably on your response to treatment so far, of course emphasising that these are still early days.

You are not an unintelligent man. You have been diagnosed from adolescence as suffering from attention deficit disorder or some similar condition. You are nervous and unconfident in yourself, and you seem to have developed the habit of being a loner to try and protect yourself from the pressures of the world. Perhaps that’s partly your own nature and partly a result of the lengthy periods of incarceration that you have had. It is an aspect of institutionalised people that I have seen before. When you have come out of custody in the past you have generally not lasted long before you failed again; the consequence being that you have spent a lot of time in custody for a young man.

I believe that you are now making genuine efforts to rehabilitate yourself. For the purposes of sentencing I accept that you have not been taking drugs or alcohol since you went to the Woolshed centre. I accept that you have greater insight into what drives you and the way your behaviour affects other people.

In the past, at least some of the things that you have done may perhaps be characterised as cries for help. You have a history of attempted suicide. The incident at the Christies Beach Police Station [in 1995] comes close to being another suicide attempt. Mr Mead puts to me that this particular robbery was always so irrationally planned that it could be characterised as also having at least an element of you seeking to be re-arrested and given the support which had so recently been turned off when your parole period finished. There may well be an element of that.

and:

I do believe there must be punishment. However, I hope that that relatively short period will then leave you with undiminished determination to continue with your rehabilitation, assisted by the support that you seem to need, over the next five years and four months of your parole period. I have structured the sentence in that way because I think that the ways in which a supervisor can control you while you are on a bond are rather more clumsy and slower than the ways in which a parole probation officer can control you while you are on parole. When on parole, if things are not going well, you can be brought before the Parole Board quickly and relatively informally and the matter can be dealt with at once. The Parole Board can also look to the sorts of supports that you are going to need. I expect that you will need assistance with vocational training, and I expect you to need continued assistance with controlling drugs and alcohol. It’s not as easy as it may sound to give those things up. Although you are doing well at the moment I expect you to need more help in the future.

34. There is also some support from a pre-release report made shortly before Mr Tucker was discharged from prison in 1997. The report stated:

INSTITUTIONAL PROGRAMS
Mr Tucker appears to have made the most of opportunities presented to him in prison. He has voluntarily completed programs in anger management, relationship building and domestic violence as well as training in fork lift driving.

CONCLUSION
Anger management and anxiety have clearly been the primary difficulties faced by Mr Tucker over recent years. His abuse of alcohol and drugs in an attempt to cope with these issues has also been the subject of considerable attention in the past.

It is encouraging to see that Mr Tucker has taken steps to address these issues and only time will tell as to how much more intervention he is likely to require following discharge.

Mr Tucker’s employment prospects appear to be bright and he is in the process of finalising appropriate accommodation.

35. A psychologist’s report after his return to prison in 1998 said:

Mr. Tucker has endeavoured to address his problematic behaviour and personality traits by attending The Woolshed, participating in anger management courses and psychological counselling. His interest in and motivation for treatment is high and he reports a positive attitude towards the possibility of personal change.

36. From the time of his release from prison after that conviction until early 2009 Mr Tucker did not lead a blameless life, but on one view the character of his conduct shifted from overt aggression to a more reactive character which he kept under more control. That control did not extend to control of his drug and alcohol habits. He was apprehended on two occasions for cultivating cannabis and fined on one of those occasions. He continued to cultivate and smoke cannabis notwithstanding those events. He did not abstain altogether from alcohol. He was highly intoxicated when he committed the assaults in early 2009 and he lost his drivers licence in mid 2009 for driving while intoxicated. He attended a medical appointment in December 2009 intoxicated. Nevertheless, for about 15 years until the present time his conduct does not appear to have been as serious as in the period before that.
37. From time to time in the last 15 years Mr Tucker has sought medical help. Not infrequently he complained to health workers of having suicidal and homicidal thoughts but those occasions also appear to represent some attempt by him to limit his tendency towards violent conduct and to represent some recognition on his part of the need for control of his aggression.
38. In addition, from the beginning of 2009, and therefore well before he was advised that consideration was being given to cancelling his visa, he commenced to undertake voluntary work at Hackham South Primary School where his youngest child was attending. He appears to have favourably impressed staff there. Ms Julia Nichols, a Community Development Worker for the Hackham West Community Centre in Adelaide, gave evidence on his behalf in the present proceedings. She said he had shown no signs of aggression, much less violence. He received certificates of appreciation for his efforts at the end of 2009. Ms Nichols also said that she was assisting him to develop skills which might permit some form of entry into paid work. Ms Nichols’ evidence provided a different insight into Mr Tucker’s behaviour than that provided by Ms Turner.
39. However, Mr Tucker’s behaviour has not been confined to the odd violent episode such as those of 2009, and his personal difficulties with Ms Turner. Unfortunately, he has some history of conflict with health workers, when seeking help for his problems, even after his release from prison in 1999. There are, in addition, many reported instances since 1999 of Mr Tucker revealing highly aggressive thoughts about those with whom he felt in conflict – Ms Turner, the police, health workers. Those reports suggest an underlying risk which may not be readily dismissed only because the worst has not yet happened. For example:

States he went to the Police Station to attack an officer hoping that they would shoot him.
(5 September 2000)

Feels he could hurt someone due to unresolved issues.
(30 September 2003)

Cliff presented to ED yesterday feeling depressed and angry+++. Triggered by conflict with ex-partner Michelle regarding their 3 children. Had threatened to burn down her house. Now reporting thoughts of killing her & himself, says he doesn’t want to do so but is afraid he won’t be able to control himself. Also reported driving @ 100 kph + “praying” that he’d see police & could run into them, also going into police station to assault them so that they would shoot him.
(1 October 2003)

He is expressing ideas of harming others.
(7 October 2003)

He chose to leave Noarlunga today, without being discharged. He is now threatening to return and “teach them a lesson” and cut his wrists in front of ED staff.
(28 May 2008)

Clifford had reportedly requested ECT and had been declined this treatment and had expressed dissatisfaction with the refusal and had remarks suggesting “he understood why people commit violence or suicide” he reportedly stated that if he attended Adaire clinic it would be on the news and also made comments that “it is no wonder people choose to get a gun and kill people”.
(13 January 2010)

Want to kill her --- make her bleed & suffer badly --- would be murder suicide.
(18 January 2010 – although he also said “Won’t do it because of impact on kids”)

Safety – high risk currently of DSH [deliberate self harm] & high risk of harm to others via impulsive attempt to demonstrate degree of desperation. Says “wouldn’t hurt any innocent people but SAPOL [SA Police] are not innocent.
(3 February 2010)

40. Obviously enough, the picture presented by the matters to which we have referred is a mixed one. Making a judgment in the present case based only on Mr Tucker’s apparent efforts to moderate his behaviour, and his assurances that he would abstain altogether from alcohol and drugs, would give insufficient recognition to the complexity of his behaviour. Assessment of that matter requires expert assistance.

PSYCHIATRIC EVIDENCE

41. For the purpose of the present proceedings Mr Tucker agreed to see Professor David Greenberg. Professor Greenberg is a forensic psychiatrist with considerable experience, both academic and practical. Professor Greenberg took an extensive history. He had available to him a series of medical records, notes from the South Australian Department of Corrective Services, records obtained from the South Australian Police, various psychological reports and also material provided on behalf of Mr Tucker including Mr Tucker’s witness statement for use in the present proceedings. These matters are referred to in some detail in the history set out by Professor Greenberg. Professor Greenberg interviewed Mr Tucker and reviewed the material.
42. Professor Greenberg was asked to address:

1. Whether Mr Tucker suffered from a diagnosable psychiatric or other health condition and the nature and extent of any such condition.

2. The extent of his rehabilitation and the likelihood of further rehabilitation.

3. Whether any treatment could reduce the risk of harm to members of the community.

4. Whether he will pose a risk of harm if allowed to remain in Australia.

43. Professor Greenberg was an impressive witness who gave his evidence thoughtfully and without embellishment. He reported that he had diagnosed Mr Tucker as having severe antisocial personality disorder with likely borderline features. He gave an explanation of Mr Tucker’s disorder in his oral evidence and related it to Mr Tucker’s past, and likely future, behaviour. The usual characteristics of antisocial personality disorder are:
    • (1) failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest
    • (2) deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure
    • (3) impulsivity or failure to plan ahead
    • (4) irritability and aggressiveness, as indicated by repeated physical fights or assaults
    • (5) reckless disregard for safety of self or others
    • (6) consistent irresponsibility, as indicated by repeated failure to sustain consistent work behaviour or honour financial obligations
    • (7) lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.
      
44. Professor Greenberg, in both his expert report and in oral evidence, was pessimistic about the prospects of Mr Tucker’s rehabilitation and the availability of any effective treatment. He said that effective treatment was not readily available and that most people with antisocial personality disorder fail to adapt appropriately to their situation.
45. He saw the incidents in early 2009, despite their relatively lower level of violence compared with earlier episodes, as illustrative of Mr Tucker’s inability to learn from his interactions with others. Despite Mr Tucker’s general compliance with remediation attempts Professor Greenberg said in his report:

Mr Tucker has not significantly responded to treatment and remediation programs or contacts over a thirty year period. His prognosis for treatment is guarded in the short term. He plans to resume similar access to the same mental health resources and services he has previously accessed.

His plans are vague and they lack detail. There is a high to moderate probability that his current plans for remediation will not succeed.

46. His summary of the likelihood of further risk of harm to others was:

In summary, persons with severe antisocial personality disorder have chronic and persistent maladaptive behaviours which are entrenched and difficult to change. There is no suitable medication to change personality and behaviour and the changes to behaviour are largely depended [sic] on the individual. Changes to personality are difficult and are usually made over several years or decades rather than in the short term. Persons with such disorders have to learn new adaptive ways of dealing with stress and learn new coping styles and behaviours. Given the chronicity and persistence of Mr Tucker maladaptive behaviours, his prognosis is guarded at this time.

The ageing process is likely to have a beneficial effect in ameliorating his maladaptive behaviours. However this aging effect is only one of the factors that needs to be considered in changing his maladaptive behaviours and is likely to have ameliorating effect over several years or decades when he enters his senior years rather than in the short term.

Considering all the risk factors mentioned above and the limitations of predictions, the likelihood of further acts of violence or criminal offending behaviour by Mr Tucker in the future is regarded as being in the high risk category.

47. Professor Greenberg thought that the high risk of violent behaviour he had identified extended to the very serious forms of conduct earlier in Mr Tucker’s life. He clearly did not think that the risk of serious violence could be relegated to the past. In cross-examination by Mr Tucker’s legal representative Professor Greenberg gave the following evidence:

Do you regard the most recent offending as less serious than his previous offences?---Yes.

Do you see that as a hopeful indicator that his offending may be getting less serious and more time in between the offences?---The answer to you is if one looks at it just purely on the conviction record, it does look that way, yes, but as a clinician, I look at his functioning from a clinical perspective.  In other words, I look at his underlying problem, which is the characterological problem.  Because he has not been convicted of something doesn’t mean he’s not having difficulties in the community on a day-to-day basis.  So to answer your question, yes, it does appear from, just on a conviction record, that there’s less serious and certainly less often offending behaviour, but the underlying problem is the same.

and:

In the vast majority of people with antisocial personality disorder, they don’t change.

and:

Is it common, Professor, for offenders to relapse even a number of times before stopping offending completely?---Most of them don’t ever stop.  They just grow old and as they get older they become less agile, less mobile, and they’re not able to sustain the adverse environment faced in the correctional facility so they slow down and they stop offending in terms of serious offending and coming before the courts, but the basic characterological problem remains.

48. Mr Tucker is in his mid-forties. He is not yet at the point where the aging process may be expected to effectively control his actions. Restraints on his behaviour depend on his own volition. Without intending to disparage his efforts at self-control we very much doubt that he completely understands the nature of his behavioural problems, much less is in a position to fully control his behaviour.
49. Professor Greenberg also observed in his report:

Based on his history, the targets of his offending behaviour appear to be indiscriminate and are more dependent on the situation rather than the specific individual.

PROTECTION OF THE AUSTRALIAN COMMUNITY

50. On the basis of the material before us the conclusion is inescapable that Mr Tucker, throughout most of his adult life, has been involved in crimes involving violence or the threat of violence. The risk of harm to others represented by Mr Tucker’s conduct has been of a high order. We accept Professor Greenberg’s opinion that there is a high risk of him re-offending. There was no expert evidence to the contrary. We conclude that the risk of harm to the community if Mr Tucker remains in Australia is a significant one and that this is a factor that tells strongly against allowing him to retain his visa.

RESIDENCE IN AUSTRALIA

51. We accept that Mr Tucker came to Australia at a young age and has been resident in Australia for a long period of time. He is a member of the Australian community but his period of residence has been punctuated by repeated acts of violence and other criminal behaviour. In the circumstances we give those considerations only moderate weight. We take into account that it may be appropriate that the Australian community accept “more risk” than otherwise would be appropriate (clause 5.2(4) of the Direction) but the nature and unpredictability of the risk of harm in Mr Tucker’s case means that this consideration does not provide much assistance to him.

THE BEST INTERESTS OF THE CHILDREN

52. Mr Tucker is concerned that his contact and relationship with his children will be adversely affected if he is deported. However the matters to which he referred appear to us to relate more to his own desires than to the best interests of his children. Two of the children provided short notes to the effect that they love their father and would prefer him to stay. The notes were written in the company of Mr Tucker’s sister and brother-in-law, who have each supported Mr Tucker’s application to remain in Australia. The expressions of desire in these notes, however well intentioned, can not substitute for a more objective evaluation of the interests of the children who wrote them.
53. The children are now all in the care of their mother and, in the case of the two girls, that has been the position for a considerable period of time. In 2008, after living with his father for some years, Brody left Mr Tucker’s house and went to live with his mother. Mr Tucker applied for custody. A report provided to the Federal Magistrates Court of Australia in July 2008 by Mr Ric Trevaskis, Family Consultant, contained the following observations:

The issue in dispute before the court is Mr Tucker’s application for Brody to be delivered up to, and live with, him.
...
Brody lived with his father for some 5-6 years.
...
All three children appeared to speak with quite some candour, and to hold very similar views.
...
Brody reported clearly that he left his father’s home because “I didn’t want to live there ... The alleged verbal abuse was reported to be regular; the alleged physical incidents were reported as happening” every couple of weeks”.
...
All three children expressed some level of fear of their father, resulting from them experiencing him as aggressive.
...
Paige and Ciaan reported that for some time their mother was “making us” go to see their father. Both appeared to have taken Brody moving to their mother’s as an opportunity to stop seeing their father.
...
It is fair to say that Mr Tucker rejected the feedback, stating, in relation to Brody’s reports of his father’s anger, “he’s telling lies”. Mr Tucker showed no understanding of the children’s positions, other than to repeat his view that Ms Turner has influenced the children against him.
...
Brody expressed clearly his wish to remain living with his mother. All three children expressed clear reluctance to see their father, particularly on a regular basis.

54. Mr Trevaskis’ report was a preliminary one. He was not required to carry out a further, fuller, assessment of the position. Nevertheless, it was apparent from his evidence and his careful responses to the questions put to him in cross-examination that the record he made of the responses of the three children was made diligently and objectively and that the interview with them was carried out with the benefit of extensive experience.
55. In the present case an expert report was also provided by Dr Merrylyn Asquith, Child and Family Consultant. Orders were made that the contents of this report, and a letter from Dr Asquith, not be disclosed to Mr Tucker, although they were provided to Mr Tucker’s legal representative. An application to revoke that direction so that Mr Tucker might have access to them was rejected (see Appendix 1).
56. As the detailed contents of the report have not been disclosed to Mr Tucker, for the reasons explained in the Ruling made which is at Appendix 1, we shall not enter upon a detailed discussion of those matters here. The conclusions expressed by Dr Asquith may be sufficiently seen from the following matters stated in her report:

In summary, this assessment is of the view that each of these children has experienced neglect, and physical, emotional and psychological abuse from their father. The children would seem to be very likely to face further unacceptable risks to their emotional, psychological, physical, social, relational and developmental wellbeing through ongoing association with their father.

...

In summary, the nature of the relationship between the children and their father appeared to be distinguished by his very poor psychological relationship with them, and their very poor psychological relationship with him.

...

In this matter, it appears that separation is likely to advantage the children from ongoing abuse and further unacceptable risks to their wellbeing.

...

In summary, based upon the documentation provided and the information gathered from each of the children, it is this writer’s professional opinion that the cancellation of the Applicant’s visa and his consequent removal from Australia to the United Kingdom would be in the best interests of each of the children in this matter.

57. Dr Asquith gave oral evidence although, again, Mr Tucker was not privy to it. She was resolute in her opinions and gave further reasons for them. We accept Dr Asquith’s expert opinion. Again, there was no expert evidence to the contrary. Dr Asquith’s opinions appear to us to be consistent with the general picture described by Professor Greenberg of Mr Tucker as a person with severe antisocial personality disorder. It seems likely that Mr Tucker has no real appreciation or understanding of his interaction with his children nor of where their best interests lie.
58. We accept that the facility for each of the children to choose a greater level of contact with Mr Tucker will be diminished if Mr Tucker returns to the United Kingdom. However it will not be removed altogether. Overall, we are satisfied that the best interests of the children do not provide support for Mr Tucker’s application. On Dr Asquith’s evidence the best interests of the children favour cancellation of Mr Tucker’s visa.

MATTERS FAVOURING RETENTION OF THE VISA

59. We accept that there would be hardship to Mr Tucker if his visa is cancelled. Apart from the fact that he would be removed from surroundings with which he is familiar he would lose immediate contact with his family, which is important to him. He would also lose the opportunity to see his children, should they wish to see him. Of course, with the benefit of modern technology it may be possible for him to maintain contact with them at very little ongoing expense. Video contact is one option. Nevertheless, immediate physical contact would be lost for the foreseeable future. We accept that it would be very upsetting for Mr Tucker to lose that contact with his children.
60. In addition, if he is removed from the support provided by his immediate family he would lose the assistance given by his sister and brother-in-law in dealing with practical aspects of day to day living – managing financial matters, arranging appointments, dealing with the bureaucracy and the provision of regular, and nourishing, meals. The potential disadvantage to him is a matter of some significance.
61. Mr Tucker’s sister, and his mother, both of whom live in Australia, expressed their distress at the prospect that Mr Tucker might be removed to the United Kingdom. They were supported by Mr Tucker’s brother-in-law. We accept that they each wish Mr Tucker to remain, that they feel capable of assisting him and that their relationships with him will be disrupted if he is removed from Australia.
62. These are all factors which support Mr Tucker’s application to remain in Australia although pursuant to the Direction they are to be given less weight than the primary factors.

OTHER MATTERS

63. Mr Tucker has had regular resort to health advice and services in Australia. However, there is no basis to conclude that his needs would not be adequately met by services available in the United Kingdom. Language would obviously not be a difficulty for him.
64. It appears that Mr Tucker has not been previously advised that his visa might be cancelled on account of his conduct and, in that sense, he has not failed to respond to such a warning. However that matter, also, has little weight in the present case. Mr Tucker’s history indicates that he has, in the past, been unresponsive to the possibility that his actions might have adverse consequences for him.

CONCLUSION

65. The assessment which is required to be made for the exercise of a discretion whether to cancel a visa under s 501 of the Act in the case of a person who does not pass the character test involves a comparison between: (1) the nature and extent of risk to the Australian community and its members if the person remains in Australia; and (2) the factors which support the view that the risk should, in all the circumstances, be accepted.
66. We are in no doubt that there is a risk of violent behaviour from Mr Tucker, and therefore of harm to others, if he remains in Australia. Notwithstanding the matters which support the view that the risk should be accepted, the factors which support cancellation of Mr Tucker’s visa strongly outweigh those which would support retention of it. We are not satisfied that the decision to cancel Mr Tucker’s visa was wrong or should be set aside or varied. The decision to cancel his visa is therefore affirmed.
    

I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Buchanan and Senior Member Isenberg

Signed: ................................................................................

Associate

Date of Decision 26 July 2010

Solicitor for the Applicant Jane Nunan & Associates

Counsel for the Respondent T. Reilly

Solicitor for the Respondent Australian Government Solicitor

APPENDIX 1

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: S 1820 of 2010

GENERAL ADMINISTRATIVE DIVISION )

Re CLIFFORD TUCKER

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

RULING

Tribunal Justice Buchanan (Presidential Member)

Date 9 July 2010

Place Sydney

Decision 1. The application for revocation of the order made on 5 July 2010 under s 35(2)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) is dismissed.

2. The transcript of the proceedings relating to the application is to remain confidential and is not be disclosed except in accordance with the terms of the order made on 5 July 2010.

..............................................
Justice R J Buchanan
(Presidential Member)

CATCHWORDS

CONFIDENTIALITY – best interests of the child

RELEVANT ACT/S
Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 39
Migration Act 1958 (Cth) s 500

CITATIONS
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Barbaro v Minister for Immigration and Ethnic Affairs [1982] FCA 141; (1982) 65 FLR 127
Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247

REASONS FOR DECISION

9 July 2010

Justice R Buchanan (Presidential Member)

1. Section 39 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act) requires that a party is given a reasonable opportunity to inspect documents to which the Tribunal proposes to have regard in reaching a decision in a proceeding, and to make submissions in relation to those documents. Section 39 is, however, subject to the operation of s 35. Section 35(2)(c) of the AAT Act permits the Tribunal to give directions prohibiting or restricting the disclosure to a party of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal. Section 35(3) directs the Tribunal, when considering whether disclosure should be prohibited or restricted in this way, to commence from the premise that it is desirable that documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to all parties but to pay due regard to any reasons why publication or disclosure of a matter contained in a document should be prohibited or restricted.
2. On 5 July 2010 I acceded to an ex parte application made by the respondent that a report prepared by Dr Merrylyn Asquith dated 28 June 2010, and a letter sent by Dr Asquith to the respondent dated 2 July 2010, should not be disclosed to the applicant, Mr Tucker. The report and letter were made available to Mr Tucker’s legal representatives upon condition that they were bound not to disclose their contents. I did not, at that time, read the report or letter. I now have.
3. Ms Nunan, Mr Tucker’s legal representative, has applied that the prohibition on disclosure to Mr Tucker should be lifted.
4. Ms Nunan has drawn my attention also to an issue which might arise from the application of s 500(6H) of the Migration Act 1958 (Cth). Under that provision the Tribunal must not have regard to information presented orally in support of a person’s case unless it is set out in a written statement provided at least two business days before the hearing. The hearing is to start on 12 July 2010 – i.e. the next business day after today. Ms Nunan is apprehensive that Mr Tucker would be denied an opportunity to give full evidence about the matters referred to in Dr Asquith’s report even if allowed to see it, although she stressed that Mr Tucker did not want the hearing delayed. If I concluded that Mr Tucker should see Dr Asquith’s report I would not allow his interests to be affected by the limitation in s 500(6H) of the Migration Act. I would order that the hearing begin at a later date to allow him to give notice of his evidence. That will only be necessary if the order made on 5 July 2010 is revoked.
5. The application that the prohibition on the disclosure of Dr Asquith’s report be lifted raises difficult issues.
6. It is part of Mr Tucker’s case that the best interests of his children is a factor strongly favouring a decision that he should be allowed to remain in Australia and that it is a factor which tips the balance against other factors which would tend in favour of a decision that his visa be cancelled. Short notes have been provided by two of his children expressing their love for their father and asking that he be allowed to remain in Australia.
7. Dr Asquith, who is a family consultant, interviewed the three children at the request of the respondent. The conclusion which was reached by Dr Asquith in her report was that the cancellation of Mr Tucker’s visa and his removal from Australia would not be against the best interests of each of the children. That conclusion was stated after a long discussion, not only of things said by the children at the interviews with her but also of identified factors which she took into account in reaching her professional opinion. Dr Asquith’s letter of 2 July 2010 expressed the view that it would be contrary to the best interests of the children for Mr Tucker to be shown her report.
8. Ms Nunan has made the point, having read the report, that she thinks Mr Tucker would deny many of the matters Dr Asquith has reported and taken into account. She has argued that Mr Tucker is denied an opportunity to give full evidence and is unreasonably impeded in giving instructions to her if he cannot read Dr Asquith’s report. These are factors which deserve the most serious and anxious consideration and in many cases they would afford an adequate reason for disclosure of the report notwithstanding the concerns which Dr Asquith has expressed.
9. Another factor which must be taken into account is that if Mr Tucker’s application does not succeed and he is removed from Australia he will be, physically at least, removed from contact with his children although it would remain open to him, as it does at the moment, to attempt to contact his children by telephone. On the other hand, if his application succeeds, it would necessarily be because, notwithstanding Dr Asquith’s opinion, the Tribunal had assessed that the best interests of Mr Tucker’s children were in fact served by him remaining in Australia.
10. In Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Brennan J remarked that the exclusion of a party from a hearing which affects his interests is a grave step even if his legal advisers are permitted to remain. He said (at p 273) that in addition to other factors to be taken into account the following further criterion must be satisfied:

“As it must appear that the exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application, it is necessary to show that the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence, and denying the party access to it, than by refusing an order to exclude the party. This criterion is not easy to satisfy though it is possible to do so. The criterion is not easy to satisfy because an applicant’s interest in a hearing fair to him can be overridden only by another and superior interest, and then only when reconciliation of the two interests is impossible.”

11. Recently, in Applicant VEAL of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 the High Court drew attention at [25] to the need that “the application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case”.
12. The fact that Mr Tucker has an opportunity to state the position in his own evidence and that he has a legal representative through whom the appropriate submissions may be made is a factor to take into account (see Barbaro v Minister for Immigration & Ethnic Affairs [1982] FCA 141; (1982) 65 FLR 127 at 131). Mr Tucker appreciates that the question of the best interests of his children is a primary factor to be taken into account by the Tribunal. He has had a full opportunity to give an outline of his own account about his relationship with his children even though he has not been made aware of the particular matters on which Dr Asquith’s opinion is based.
13. It is important with respect to Dr Asquith’s report to understand the foundation for the professional opinion which Dr Asquith has expressed but ultimately it is her professional opinion which is of most significance. Dr Asquith’s knowledge and opinions depend in part on what she was told by the children. There is no reason at present to believe that she has not faithfully recounted those matters. Moreover, the issue raised by Dr Asquith’s report is not one which turns only on objective facts, but also on subjective impressions held by the children and on Dr Asquith’s assessment of their psychological interactions with their father. Any exchange with Dr Asquith in cross-examination based only on the premise that the children had misunderstood Mr Tucker’s actions or motivation, or that they were mistaken about the facts, is likely to be unproductive. The children will not be called as witnesses in the case. There is no question of them being cross-examined or a different version of events being put to them.
14. I am satisfied, at the moment at least, from the terms of Dr Asquith’s report that the information that she has recounted was given to her in circumstances where Mr Tucker’s children were entitled to believe that what they said would be treated sensitively and with discretion. It does not appear to me, from its nature, to be information which they intended would be shared with their father.
15. Although the matter is not without difficulty, and I am conscious of the need for Mr Tucker to have a fair opportunity of advancing his own case, and answering the case in response, in all the circumstances I am not persuaded that the interests of justice or the requirements of procedural fairness dictate or suggest that the order which I made on 5 July 2010 should be varied. It goes without saying that, if sufficient grounds arose for doing so, the question could be raised again.
16. The application for revocation of the order made on 5 July 2010 is dismissed. I direct that the transcript of the proceedings relating to the present application remain confidential and not be disclosed except in accordance with the terms of the order made on 5 July 2010.
    

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: ...............[sgd].................................................................

Associate

Date/s of Ruling 9 July 2010

Date of Decision 9 July 2010

Solicitor for the Applicant Jane Nunan & Associates

Counsel for the Respondent T. Reilly

Solicitor for the Respondent Australian Government Solicitor