FMG v Children's Guardian

[2025] NSWCATAD 37

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FMG v Children’s Guardian [2025] NSWCATAD 37

Hearing dates:

2 November 2023

Date of orders:

10 February 2025

Decision date:

10 February 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Rogers, Senior Member
E Hayes, General Member

Decision:

The decision of the Children’s Guardian dated 16 March 2023 to refuse to grant FMG a working with children check clearance is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – review under section 27 Child Protection (Working with Children) Act 2012 - working with children check clearance – Alleged history of family violence including towards child family members - whether Applicant poses a risk to safety of children

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Working with Children) Act 2012

Evidence Act 1995

Cases Cited:

BKE v Office of Children’s Guardian [2015] NSWSC 523

Briginshaw v Briginshaw [138] HCA 34

CGP v Children's Guardian [2017] NSWCATAD 12

Commission for Children and Young People v V [2002] NSWSC 949

CXZ v Children’s Guardian [2020] NSWCA 338

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

M v M (1988) 166 CLR 69

McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] VR 521

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

Sawires v Commissioner of Police [2010] NSWADT 4

Tilley v Children’s Guardian [2017] NSWCA 174

Category:

Principal judgment

Parties:

FMG (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
P Latham (Applicant)

Solicitors:
O’Brien Criminal & Civil Solicitors Pty Ltd (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2023/00111635

Publication restriction:

With the exception of expert witnesses, officers of government agencies and legal representatives, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1. FMG wants to work as a bus driver but requires a working with children check clearance.

2. When FMG applied for a working with children check clearance in 2021, the Children’s Guardian refused to grant him one. This case is about whether or not the Children’s Guardian made the correct and preferable decision.

Background

3. FMG made a previous application for a Clearance, which was refused on 11 July 2016.

Decision of the Children’s Guardian to refuse the Clearance

4. FMG reapplied for a working with children check clearance (‘Clearance’) on 13 December 2021. The Office of the Children’s Guardian conducted a risk assessment and on 16 March 2023 the Children’s Guardian refused the application.

5. The decision of the Children’s Guardian to refuse the Clearance was based on what the Children’s Guardian considered to be a more than 20 year history of violence and intimidation in the context of “domestically abusive relationships”. The Children’s Guardian said this included “significant violence” involving strangulation, punching and kicking and described FMG’s actions as a ”pattern of behaviour” and that FMG had not taken remedial action to address his behaviour.

6. The Children’s Guardian said that there were four instances of violence towards children over this period and that some of the other violence occurred in the presence of children and this had a negative impact on the children.

7. The Children’s Guardian said that the fact FMG had not reoffended for a four year period should be given reduced weight given that he had “crime free periods” in the past and then reoffended. The Children’s Guardian also said that FMG had continued the behaviour despite the intervention of the criminal justice system.

8. FMG had been seeing a psychologist, but the Children’s Guardian’s view was there was no evidence FMG had worked to address his behaviour. The Children’s Guardian formed a view FMG might engage in further violent offending.

FMG’s application for administrative review to this Tribunal

9. FMG lodged an application for review with Service NSW on 6 April 2023. The Respondent accepted 6 April 2023 as the date on which the application is taken to have been lodged the application.

10. FMG stated in the application for review that he did not pose a risk to the safety of children.

Relevant legislation and the role of the Tribunal

11. The object of the Child Protection (Working with Children) Act 2012 is stated in section 3 as:

…to protect children—

(a)  by not permitting certain persons to engage in child-related work, and

(b)  by requiring persons engaged in child-related work to have working with children check clearances.

12. The paramount consideration in the operation of the Act is “The safety, welfare and well-being of children and, in particular, protecting them from child abuse”: section 4 of the Child Protection (Working with Children) Act 2012.

13. The Tribunal’s jurisdiction under section 27(1) of the Act to review a decision of the Children’s Guardian to refuse a Working with Children Check Clearance is exercised under the Administrative Decisions Review Act 1997. When conducting an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: refer to section 63 of the Administrative Decisions Review Act 1997. The Tribunal is not confined to only considering the material that was before the Children’s Guardian at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

14. The Tribunal is to approach the issue of whether the Working with Children Check should be granted to FMG afresh, without any presumption as to the correctness of the decision under review: for example, see McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] VR 521 at [530].

15. The key issue for consideration in the review is whether, on the evidence, the Tribunal is satisfied that FMG poses a risk to the safety of children. If the Tribunal is so satisfied, then it should affirm the decision to refuse the Working with Children Check Clearance.

16. The concept of “risk” to the safety of children has been considered by the Supreme Court in Commission forChildren and Young People v V [2002] NSWSC 949 where the Court stated that what one is looking for is whether “in all the circumstances there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child” and that this would exclude “fanciful or theoretical risks”: at [42].

17. In carrying out the review, the Tribunal must have regard to the mandatory considerations set out in section 30 of the Act, which are:

(a)  the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

(b)  the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c)  the age of the person at the time the offences or matters occurred,

(d)  the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e)  the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

(f)  whether the person knew, or could reasonably have known, that the victim was a child,

(g)  the person’s present age,

(h)  the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

(i)  the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(i1)  any order of a court or tribunal that is in force in relation to the person,

(j)  any information given by the applicant in, or in relation to, the application,

(j1)  any relevant information in relation to the person that was obtained in accordance with section 36A,

(k)  any other matters that the Children’s Guardian considers necessary.

18. Section 30(1A) of the Act states that the Tribunal cannot make an order which has the effect of enabling an Applicant to work with children unless the Tribunal is satisfied that:

(a)  a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b)  it is in the public interest to make the order.

The hearing

Interaction with police and courts

FMG’s affidavit

19. FMG provided an affidavit in these proceedings. In that affidavit FMG said he “deeply regret[ted] [his] violent behaviour in the past” and is upset that “some of this behaviour was witnessed by my children”.

20. FMG said that he has seen Mr Ben Ebert, psychologist, and has engaged in cognitive behavioural therapy. He said that he had “gained insight” into his behaviour and learned strategies to manage his anger.

Alleged conduct by FMG

21. The Children’s Guardian relied on a series of interactions FMG had with the Police and courts.

6 October 1998 incident

22. FMG was charged with assault occasioning actual bodily harm. Police alleged that on 6 October 1998 FMG assaulted his 17 year old brother-in-law.

23. FMG explained and the Respondent does not dispute that FMG’s wife was awarded custody and guardianship of her younger brother and sister and that she assisted them to come to Australia. FMG said that various relatives tried to take his sister-in-law back overseas. In was in the context of this dispute that this incident occurred at a shopping food court.

24. The Children’s Guardian relied on the transcript of the criminal trial in the Downing Centre Local Court on 9 March 1999. The magistrate accepted that FMG punched the brother-in-law twice when he was lying on the ground and the brother-in-law sustained a chipped tooth and lumps on his head. The magistrate rejected a finding that FMG kicked the brother-in-law in the head but found that FMG struck the brother-in-law a further time when he was on the ground. FMG’s six year old daughter and nephew were present.

25. On appeal, the District Court found the offence proved but did not record a conviction but discharged FMG on a recognizance of $2,000 to be of good behaviour for three years.

1 September 1999 incident

26. FMG was charged with assault occasioning actual bodily harm following an incident on 1 September 1999. The Police Facts Sheet alleged that during a verbal argument FMG’s then wife pushed FMG and he punched her in the jaw with a closed fist. He is then alleged to have delivered an upper cut to her mouth with a closed fist and she was then knocked to the ground.

27. Evidence was presented in the District Court appeal that FMG’s wife had said to his solicitor that she was “crazy” and she “wanted to kill” FMG. “It was a brawl, I gave as good as I got” and that she had a knife. A witness also gave evidence that they did not see FMG hit his wife with an open or closed hand.

28. On appeal the District Court dismissed the matter under section 10, meaning it found the offence proven but did not proceed to record a conviction. The District Court appeal result sheet reads that no bond is to be entered into “in particular in light of evidence from the appellants [sic] wife”.

1 February 2003 incident

29. FMG entered a plea of guilty to charges of resist officer in execution of duty and behave in offensive manner in/near public place/school. The Police Facts Sheet alleged that Police had attended because FMG had his car stolen and that Police found FMG to be “very intoxicated and aggressive” towards police and he began to swear at Police and began “shaping up” to police. Police allege FMG “suddenly advanced” on one of the police officers and Police responded by grabbing and seeking to restrain FMG and one officer used a short burst of capsicum spray.

2006 Apprehended Violence Order

30. Mr Chiam, counsel for the Respondent, asked FMG about the Apprehended Violence Order (‘AVO”) issued against him for the protection of his 15 year old daughter. The AVO was issued on 18 August 2006 for the period of 12 months.

31. Under the protection of a certificate issued under section 128 of the Evidence Act 1995, FMG gave an answer about whether the reasons given by Police in an application for an Apprehended Violence Telephone Interim Order (‘TIO’) issued on 18 July 2006 were true. The reasons for the TIO application included that FMG and his wife had assaulted their daughter for “a few months” and that about two weeks ago FMG threw a cup at his daughter hitting her on the leg. In response to a question about throwing the cup, FMG said “I may have done that”.

2007 Apprehended violence order

32. Following separation from his wife in 2006, FMG was the subject of a Final AVO made on 2 February 2007, for the protection of his wife and four children. The AVO was for two years and included conditions that FMG not go within 100m of where his wife lived or worked and also not to approach her within 12 hours of consuming intoxication liquor or drugs.

33. The AVO was varied on 30 November 2007 with conditions that FMG not enter premises at which his wife resided or worked. Other conditions included not approaching her or premises at which she lived or worked within 12 hours of consuming intoxication liquor or illicit drugs and that FMG must not destroy or damage her property.

34. The AVO complaint stated that FMG and his wife were separated. It alleged that FMG attended at his wife’s home on 14 January 2007 and knocked to be let in. When he was not let in, FMG is alleged to have climbed in through a closed side window. It is alleged FMG’s wife asked him to leave and he called her a “low life dog” and he threatened to punch her. He is alleged to have remained in the living room and watched TV until Police attended and asked him to leave.

28 April 2007 incident

35. Following an incident on 28 April 2007, Police charged FMG with assault with act of indecency, knowingly contravene prohibition/restriction in order and common assault. Police alleged that contrary to the AVO, FMG went to the place where his wife lived, that he was intoxicated and entered a garage where she was and during the course of that interaction grabbed her breast and walked off wearing her thongs. Police alleged that FMG’s wife went into her house and locked the door and continued to be fearful of FMG.

36. The criminal charges were ultimately dismissed when the Magistrate found FMG not guilty.

25 September 2008 incident

37. FMG was charged with common assault (dv) and contravene prohibition/restriction in AVO. The charges arose from an incident on 25 September 2008.

38. The Police Facts Sheet states that FMG picked his daughter up from school and they began to argue in the car about FMG’s daughter not returning his calls. FMG’s daughter would have been 17 years old. The Fact Sheet then reads:

“The accused has then punched the victim with his left hand using a closed fist straight out to the middle of the victims [sic] face. The victim felt immediate pain to the middle of her face.”

39. The Facts Sheet states that FMG’s daughter “suffered redness to her nose and a headache as a result of the assault”.

40. It should be noted that both charges were dismissed by the Local Court.

41. In response to this allegation being put to him, FMG said it did not happen.

5 March 2010 incident

42. FMG was charged with resist police/hinder police/incite another to assault/resist/hinder police, excluded person fail to leave premises when required and use offensive language in/near/within hearing from a public place/school. The charges arose from an incident on 5 March 2010. One statement given by a police officer alleged that at a licensed hotel, another police officer had a conversation with FMG and put his hand on FMG’s shoulder. The officer alleged FMG said to the other officer with “Get your fucking hands off me you cunt. Don’t fucking touch me you cunt. You can talk to me but don’t you ever touch me”. The officer who provided the statement alleged that FMG was pointing his finger at the other officer and repeated similar sentiments to the other officer who then asked him to leave the hotel. It is alleged that FMG did not proceed to leave the hotel, despite the fact a third officer had a taser drawn and pointed at him. Police had to physically remove a schooner of beer from his hand and physically remove him from the hotel. While being searched he was “constantly turning around” and refused to get into the caged police vehicle. The officer alleged that FMG said “I’m not getting in the back you cunts” and was physically placed in the vehicle and that FMG kicked the door preventing the officers from closing it.

43. FMG entered a plea of not guilty but was convicted of the charges, receiving fines of $200, $400 and a section 9 bond for nine months.

18 December 2011 incident

44. FMG was charged with common assault (DV) and FMG entered a plea of not guilty. The matter went to trial in the Local Court.

45. The Magistrate’s judgement said that on 18 December 2011 FMG went to his ex-wife’s home to pick up his 11 and 13 year old sons for a contact visit in accordance with family law orders. In the car with FMG were his partner and eight year old daughter.

46. The boys were reluctant to go with FMG and there was a “struggle” between FMG and the older son. Police alleged that FMG picked his son up off the ground while holding him around the neck or chin area.

47. The Magistrate was satisfied beyond reasonable doubt that FMG assaulted the 13 year old son by “pushing him, and, on his own admissions, holding him by the neck using the hood of his hoodie jacket”. The Magistrate was satisfied that there was pressure applied to the son’s neck but could not be satisfied beyond reasonable doubt that FMG held his son by the throat or neck with his hands. He was satisfied that FMG held the son’s neck through the jacket.

48. The Magistrate convicted FMG and imposed a nine month section 9 good behaviour bond. FMG appealed the conviction. However, the District Court dismissed the appeal after FMG withdrew it.

49. An interim AVO was made by the court against FMG for the protection of his ex-wife and three children. It appears that a final AVO was made at least in respect of the older son on 11 October 2012.

28 November 2015 incident, AVO and engagement with psychologist

50. Mr Chiam asked FMG about charges that he assaulted his de facto partner.

51. FMG was charged with two counts of assault occasioning actual bodily harm (dv) arising from an incident on 28 November 2015. The matter went to trial in the Local Court and on 10 March 2016 and the Magistrate found the offence proved.

52. Police alleged that FMG grabbed his partner’s neck and held her down with force. Reference was made to red marks being on FMG’s partner’s neck and her not being able to breathe properly for about four or five seconds. The Magistrate concluded that FMG applied pressure to his partner’s throat by grabbing her around the throat and applying the pressure of his fingers to the front of her throat area. The incident occurred at the unit where FMG and his son were living.

53. FMG’s explanation in the trial for the red marks was that he had bear hugged his partner and took her to the ground and his arm may have slipped up to the neck area.

54. FMG said that his partner decided that she did not wish to give evidence in the trial but was forced to do so and that the whole process was “one-sided”.

50. The case was listed for sentencing on 21 April 2016. FMG agreed that he first saw Mr Ebert, registered psychologist, on 6 April 2016. Mr Chiam asked FMG whether the reason he sought psychological help was to help his court case. This was referred to in a referral letter from FMG’s GP to Mr Ebert, dated 6 April 2016, where the doctor said “it was recommended that [FMG] seek psychological help to help his court case”.

51. FMG said that he was travelling between 2016 and 2018 and that he returned to Australia in 2018. He agreed that he had not seen another psychologist in 2017 or 2018 and that he did not see any other psychologist other than Mr Ebert from 2018 to 2022. Mr Ebert completed a ‘Letter for Professional Referee’ form, dated 1 March 2022, in support of FMG’s application for a Clearance. He saw Mr Ebert again in 2023.

52. Mr Chiam suggested to FMG that the only reason he had seen Mr Ebert was because he thought Mr Ebert could give him helpful letters for his legal proceedings. FMG denied this.

53. FMG said he realised that he needed to seek help. FMG said he was the one attacked by his de facto. FMG said getting help for his court case was not the reason. He also explained one of the reasons he spoke to Mr Ebert was because his partner’s daughter had suicided.

21 March 2018 incident

59. FMG was committed for trial for the charge of aggravated break and enter and commit serious indictable offence (intimidation) – people there. The matter was heard in the District Court and the jury found FMG not guilty.

60. The charge arose from an incident on 21 March 2018. FMG is alleged to have committed a break and enter into the house of his ex-wife and also a serious indictable offence in the house, that is, an offence of intimidation in circumstances of aggravation because FMG was alleged to have known there were persons present in the house.

61. The Crown alleged that FMG has knocked on his ex-wife’s front door and when there was no answer, he entered the house through the garage and a sliding door and went upstairs and banged on his daughter’s bedroom door. FMG’s account was that he did not enter the house at all, nor did he bang on the bedroom door inside.

62. FMG gave evidence in this own trial. During the course of that evidence he was asked about the events of 21 March 2018. His evidence was that he had a glass of red wine with his meal at a bowling club that evening.

63. Mr Chiam suggested to FMG this was contrary to FMG’s evidence (refer to [85]) in this proceeding that he stopped consuming alcohol in mid-2017 and he not drink other than some wine at weddings and birthdays. FMG said that this was a one-off as he had just returned to the country. He said that he did not remember any time where he had consumed alcohol at home in that period.

64. Mr Chiam also asked FMG about his ex-wife’s withdrawal of her statement. FMG’s ex-wife gave evidence in the Court that she had falsely claimed that she had not withdrawn her statement under duress. FMG denied ever suggesting to his ex-wife that she withdraw her evidence in a court case or asked her to drop charges or to withdraw her evidence against him.

65. FMG filed the transcript of the District Court judgement on costs. In summary, FMG was successful in getting a certificate under the Costs in Criminal Cases Act 1967 because the Court was satisfied that FMG’s former wife lacked credit and was not telling the truth in part because of the lack of background noise in her 000 call.

Driving history

66. FMG’s criminal history shows convictions for driving offences. These include:

• 1998: Refuse to submit to breath analysis as directed and driver state false name. FMG received fines of $400 and $200 and his licence was disqualified for 6 months. He was unsuccessful on an appeal against the refuse to submit to breath test conviction.

• 2000: Drive with middle range PCA (Prescribed Concentration of Alcohol). FMG was given a section 9 bond for two years, a $500 fine and his licence was disqualified for three years. He appealed the severity of the sentence and the fine was changed to $500 costs and the disqualification was reduced to 15 months.

• 2000: Drive on road etc while licence suspended. FMG was given a $500 fine.

• 2003: Not reverse vehicle safely and not give particulars to other driver. These matters were eventually dismissed or struck out.

Records from the Department of Communities and Justice

2015 incident at football

67. Under the protection of a certificate issued under section 128 of the Evidence Act 1995, FMG answered questions about an incident at a football field on 12 July 2015 referred to in material obtained by the Respondent from the Department of Communities and Justice (‘DCJ’). The caller to DCJ alleged that FMG had physically assaulted his ex-wife at football and also hit his daughter and she had bruising to her ribs. FMG was asked whether this allegation was true.

68. FMG said the incident did happen but not the way it was described in those records. He denied hitting his daughter.

2016 incident at bus stop

69. A caller to DCJ alleged that FMG’s 15 year old son reported that on 10 February 2016 FMG approached him at a bus stop, offered him money which he refused and then the two got into an argument when his approximately 10 year old sister went with FMG to a coffee shop and his son took his sister away. The son alleged that he pushed FMG away from his sister and FMG grabbed his son by the shirt and said something like “if you don’t stop I will smack you in the mouth”. In response, FMG said that this did not happen at all.

Other DCJ records relied on by the Respondent

70. The Respondent referred to other aspects of the Department of Communities and Justice material, including a report in 2015 that FMG’s then 16 year old son witnessed FMG being violent to his step-mother.

Evidence of Mr Ebert, Registered Psychologist

71. Mr Ebert is a registered psychologist. He provided a letter, dated 2 August 2023, in these proceedings and also a professional reference to the Children’s Guardian, dated 1 March 2022. Mr Ebert was also called to give oral evidence at the hearing.

72. Mr Ebert said FMG is very motivated to be a bus driver. He explained that employment can have positive effects on a person’s self-esteem, confidence and resilience.

73. Mr Ebert saw FMG for five appointments in 2016 and then saw him again in 2023 for four appointments.

74. In a letter written on 11 April 2016 for FMG’s criminal case, Mr Ebert described FMG as having symptoms of “depressed mood; sleep disturbance; stress and anxiety in the context of family, relationship and financial problems”. Mr Ebert expressed the belief that FMG was capable of “gain[ing] insight and understanding of his behaviour in relation to the violence between him and his partner, and how to correct it” and that FMG “is able to implement strategies to manage his anger in an effective manner”.

75. Mr Ebert said that he thought it unlikely that FMG would pose a risk to the safety of children on the basis of the information he has. He referred FMG to an anger management course at Relationships Australia but FMG had not attended at this stage but had made contact. He said he made the referral not out of concern that FMG had an anger management issue as at 2022, but rather to aid consolidation of the progress FMG had made. Mr Ebert said that FMG showed a lot of insight into his behaviour and was unlikely to be a risk. When asked what type of risk, Mr Ebert said of physical or verbal abuse. Ebert considered FMG to take responsibility for his behaviour.

76. Mr Ebert’s letter dated 2 August 2023 was written for the purposes of these proceedings. He said FMG had a diagnosis of adjustment disorder with mixed depressed mood and anxiety. Mr Ebert provided FMG with Cognitive Behavioural Therapy which included “reframing unhelpful beliefs, anger management techniques, and developing assertiveness skills”. He said that FMG “has implemented strategies to manage his anger in an effective manner”. He expressed the view that FMG is unlikely to be a risk to the safety to children.

77. Under questioning, Mr Ebert agreed that there had been a gap between the appointments with FMG in 2016 and the first appointment on 2 August 2023. He said that he referred to his notes from the 2016 appointments and the update given by FMG on 2 August 2023 in order to write the 2 August 2023 letter. He acknowledged that the progress notes he took did not refer to FMG’s use of alcohol. The GP letter referring FMG to Mr Ebert did refer to FMG as an “ex-drinker”.

78. Mr Ebert agreed that his progress notes showed he knew about some but not all of the incidents and charges against FMG. Mr Chiam suggested that the ones Mr Ebert was not aware of included:

• the 1998 case where the charges were proved about FMG striking his brother-in-law while he was on the ground

• The 1999 charge of assaulting his then wife

• 2003 plea of guilty to hinder the police while intoxicated

• 2010 conviction hinder police in the execution of their duties

• 2011 charge of common assault towards his then 12 year old son

• 2008 charge of assaulting one of his daughters (note this charge was dismissed)

79. Mr Ebert conceded that knowing this further detail would have added to the clinical profile of FMG. He also conceded that he did not know FMG had a previous problem with alcohol. He said that information would have been helpful to know.

Character references

80. FMG provided three character references.

81. The first is from a person who has known FMG for two years. He expresses the view that FMG “has the qualifications and personality” to be a good bus driver, pointing out that FMG was a taxi driver for some years including transporting people with disability. He refers to the 2018 criminal charges and that these charges were dismissed but does not identify the nature of the incident giving rise to the charges or what the charges were. He describes FMG as “a considerate, caring, empathetic and genuine person” and said that he would make a “dedicated, trustworthy and reliable” bus driver.

82. The other two references are from FMG’s GPs. One GP refers to FMG as “honest and polite, Courteous and frienldly [sic]”. The other refers to FMG as “polite and respectful” and a “good natured person” and stated that FMG has shown “care and compassion” to his partner and family members. Neither reference mentions FMG’s criminal history or charges.

Other aspects of FMG’s oral evidence

Alcohol use

83. FMG said that he used to drink a lot and was working as security at nightclubs. He also worked as a taxi driver for more than twenty years. He has also worked as a traffic controller.

84. FMG said that around the time of the 2015 charge FMG had started addressing his alcohol use and participated in a rehabilitation program. He said he had been “alcohol free” for the last five and a half to six years.

85. FMG later said that he stopped consuming alcohol in mid-2017. He said he does not drink other than some wine at weddings and birthdays. Refer to Mr Chiam’s testing of this evidence at [63] above.

Risk to the safety of children

86. FMG said he was no risk to children, including to his own children or anyone else’s children. FMG said that he “deeply regret[ted]” his behaviour. He said that in the past he had been “consuming too much alcohol”.

Appointments with Mr Ebert and referral to Relationships Australia

87. FMG said that he had seen Mr Ebert since 2016. He had a few appointments, and his continuation was interrupted by trips overseas for extended periods. FMG said that since 2018 he has been back living in Australia. He said he had six sessions with the psychologist. There was a gap and then he had a session three weeks prior to the hearing and a further session the day before the hearing.

88. FMG said he had a referral to Relationships Australia for anger management and had one appointment.

Views about domestic abuse

89. FMG said that he did not make excuses for his behaviour, but believes it is now in the past and he is a changed person. He said he had changed his way of thinking. He regrets the impact his behaviour had on his ex-wife and children. He said he was very sad for his children to see this behaviour from their father.

90. FMG described the family support he has, including being able to talk to an older brother, and that he is involved in the rugby community.

Why FMG seeks a Clearance and positive change

91. FMG would like to work as a bus driver. He said if he obtained a Clearance he would also like to coach football.

92. FMG said that he had stopped drinking. He now has a clear mind. He said he has reflected on his past behaviour. He has learnt to have patience.

93. FMG said he was in a very bad situation with alcohol. It had made his mind cloudy and slow to make the right decision. He was now free from that. He said he did not reach the point where he was an alcoholic, but he used to drink a lot and he was surrounded by people who would do the same.

Submissions for both parties

94. Mr Latham argued that the Children’s Guardian had not established that FMG posed a real and appreciable risk to the safety of children.

95. Mr Chiam argued that FMG’s proposed employment as a bus driver was not relevant and pointed out that section 15(4A) of the Child Protection (Working with Children) Act 2012 requires the Children’s Guardian in determining whether or not a person is a risk to the safety of children, to be satisfied that the a reasonable person would allow their child to have direct unsupervised contact with the applicant. He submitted that if granted the Clearance, FMG would be able to undertake any form of child-related work.

1998 assault occasioning actual bodily harm

96. FMG was found by the Local Court to have punched his 17 year old brother-in-law twice times when he was lying on the ground and then a third time.

97. Mr Latham said it was significant that on appeal, the District Court did not proceed to record a conviction. He said this reflected the seriousness and circumstances of the offence.

98. The Respondent argued that as the District Court found the offence proved, this Tribunal could be satisfied that the assault took place in accordance with the factual findings of the Magistrate.

99. Mr Chiam submitted that the assault was an act of violence against a child. Even if no conviction was recorded, the court found the offence proven.

1999 assault occasioning actual bodily harm

100. Police alleged that during an argument FMG’s then wife pushed him and FMG punched her in the jaw with a closed fist. Police allege FMG then delivered an upper cut to her mouth with a closed fist and she was knocked to the ground.

101. Mr Latham said that FMG accepts responsibility for instances of domestic violence and other alleged incidents. He said that criticisms had been made of FMG’s first wife in the material. Refer to [27] above which records FMG’s wife’s alleged comments to the effect that “It was a brawl, I gave as good as I got” and that she had a knife and that there was a witness who said they did not see FMG hit his wife with an open or closed hand.

102. The Respondent argued that the Tribunal could reach a factual finding as on appeal the District Court dismissed the matter under section 10, meaning that the court found FMG guilty of the offence but no conviction was recorded. The Respondent submitted that this Tribunal should find that FMG committed an “an act of physical violence of some kind” against his wife.

103. Mr Chiam said that even if what FMG’s wife said were true, it is still a physical altercation and relevant to the assessment of risk. He said it was an incident of violence.

2003 interaction with Police

104. FMG pleaded guilty to assault officer in execution of duty and offensive behaviour arising from an incident where Police alleged he was intoxicated, swearing at Police and “suddenly advanced” on one of the police officers such that Police grabbed and restrained him and used capsicum spray on FMG.

105. Mr Latham pointed out that these charges (and those dealt with on a Form 1) resulted in a fine.

106. Mr Chiam highlighted the fact that FMG was intoxicated during this incident.

2006 AVO

107. An AVO was made for the protection of FMG’s 15 year old daughter in circumstances where he was alleged to have assaulted her, including by throwing a cup at her which hit her in the leg.

108. Mr Latham said that no assault charge was laid in respect of this incident and later that year the AVO was varied to remove Condition 9, which then allowed FMG to attend at his children’s school.

109. The Respondent submitted that the Tribunal should find that the conduct described in the AVO complaint in fact occurred. Mr Chiam said that when the allegation that he threw a cup at his daughter was put to FMG he agreed that it might have happened. He said that it was a credible allegation and although not required to be proved beyond reasonable doubt it is something that the Tribunal should take into account when assessing FMG’s risk to the safety of children.

2007 Final AVO

110. A Final AVO was made against FMG with his wife and four children the protected persons. FMG and his wife were separated for some time. The complainant alleged FMG knocked on her door she refused to let him in so he opened a closed window and climbed into the house. He is alleged to have said he would punch her in the mouth and called her a “low life dog”.

111. Mr Latham pointed out no criminal charges were laid in connection with this incident.

25 September 2008 incident – charges dismissed

112. Charges were brought against FMG in respect of an incident on 25 September 2008. FMG is alleged to have punched his 17 year old daughter with a closed fist to the middle of her face and that this caused her redness on the nose and a headache.

113. When put to FMG, he denied the incident occurred.

114. Mr Chiam submitted that the Tribunal cannot regard this allegation as baseless, given that FMG in oral evidence accepted that he might have thrown a cup at his daughter, noting that a punch to the face is more serious conduct, and in the context of a number of incidents of violence found proved in the criminal courts. He said FMG had a history of violent offending and he touched on each of the circumstances of the offending where children were the victims or alleged victims.

2010 hotel incident and convictions

115. FMG was involved in an incident at a hotel where FMG was alleged to refuse to leave the hotel at the request of Police and refused to provide identification. Police responded by physically removing FMG from the hotel and placing him in the police caged vehicle. FMG was convicted of hindering police, failing to leave a hotel when requested and offensive language.

116. Mr Latham submitted that alcohol was a factor in this conduct and that FMG received a fine only.

2011 assault conviction

117. FMG was convicted of assault in respect of an incident when FMG is alleged to have pushed his 13 year old son and held him by the neck using the hood of his hoodie jacket, applying pressure to his neck. An AVO was issued for the protection of FMG’s ex-wife and three younger children.

118. Mr Latham referred the Tribunal to the transcript of the Magistrate’s findings. The Magistrate was satisfied that there was pressure on the son’s neck and that FMG held his son’s neck through the hoodie, but could not be satisfied that FMG held his son by the throat or neck with his hands.

119. Mr Chiam said this incident is directly relevant to the question before the Tribunal.

2015 assault conviction

120. FMG was convicted of assault occasioning actual bodily harm. The charge arose from an incident in which FMG was alleged to have grabbed his then partner around the neck and held her down on a bed with “considerable force”. His partner said she could not breathe properly.

121. Mr Latham said that the outcome was that FMG was given a bond. Court records show that FMG received a $800 fine and a section 9 bond for two years to be supervised by the Probation Service for “counselling, educational, development or drug and alcohol rehabilitation”.

120. Mr Chiam drew our attention to the judgement in which the Magistrate concluded that the red markings on FMG’s partner’s neck were consistent with her account and he was satisfied that the offence was proved beyond reasonable doubt. Mr Chiam said the fact that FMG denies that this incident occurred does not change the fact he was found guilty to the criminal standard. He said there is a further problem that if the Tribunal accepts the conduct did happen as found by the court, as it suggests a lack of remorse on the part of FMG. He also submitted that FMG’s son was on the premises when the assault occurred.

Driving offences and use of alcohol

123. Mr Latham said that FMG had a problem with alcohol at the time he committed the driving offences.

124. Mr Chiam raised concerns about whether or not FMG was genuine about his efforts to reduce drinking. He suggested that FMG’s evidence that he had been “alcohol free” for the last five and a half to six years was countered by the fact he said that he would drink some wine at weddings and birthdays.

125. Mr Latham said that it was not fair to suggest that FMG had been untruthful in his evidence on this point. His evidence was that he was not a drinker and no issue of credit arises.

2007 charges dismissed - breach AVO, act of indecency etc

126. Mr Latham pointed out that the charges of assault with act of indecency, knowingly contravene prohibition/restriction in order and common assault arising from an incident on 28 April 2007 were dismissed and not proven. FMG was alleged to have arrived as the place where his wife lived, intoxicated and in breach of the AVO and that he entered a garage, and in the ensuing interaction grabbed her breast and walked off wearing her thongs.

2018 break and enter and other charge – found not guilty

127. FMG was found not guilty in the District Court of charges of aggravated break and enter and commit serious indictable offence – people there. FMG denied allegations that he entered his ex-wife’s house on 21 March 2018 through the garage and a sliding door and banged on his daughter’s bedroom door upstairs.

128. Mr Chiam submitted that even though the jury found FMG not guilty it is still an allegation that the Tribunal can determine whether is credible or not. He submitted that the costs decision in the criminal proceedings concerned whether there was a reasonable doubt such that criminal proceedings should not have been brought.

129. Mr Latham pointed out that the reliability of the victim as a witness resulted in the costs outcome. He said it would be harsh to then put weight on these allegations.

Other submissions

130. Mr Latham submitted that if FMG were to become a bus driver he would have direct contact with children but physical contact in that job would be unlikely as there is a cage around the driver on a bus. There would be limited face to face contact. He said that if FMG was granted a Clearance he would have a second check when he applies to be a bus driver and will need to show he is a fit and proper person.

131. Mr Latham said that all FMG’s convictions apart from one are spent convictions. He also submitted that FMG’s offending did not involve sexual violence and no children outside his family had been affected. He said that FMG drove taxis for 22 years but had nothing raised against him in respect of any passenger.

132. Mr Latham submitted that there was a public benefit if FMG was to engage in employment as a bus driver and not rely on the taxpayer. He also said that FMG is 57 years old and if there is a 5 year period before he can reapply for a Clearance he may never get work again.

133. Mr Chiam submitted that FMG had a serious criminal history involving violence. He also highlighted incidents in which a child was the victim of violence or present.

134. Mr Chiam said that it had been eight years since FMG’s last conviction. He said that this gap is less significant given that the offending spanned a long period of time, from 1998 to 2015, some 17 years.

135. Mr Chiam submitted that the opinion of Mr Ebert was based on his limited observations of FMG. He had seen FMG six times as at August 2023 and five of those occasions were in 2016, the sixth occasion was in order to write the letter for these proceedings. Mr Chiam said that FMG had not effectively seen Mr Ebert for seven years, other than contact he had for the purposes of the 1 March 2022 Professional Reference to be given to the Children’s Guardian and the 2 August 2023 letter prepared for these proceedings. He had not conduced a full consultation. He also did not base his opinion on a complete picture because he was not aware of FMG’s drinking or the extent of his criminal history.

136. Mr Chiam touched on FMG’s evidence about the records obtained from DCJ. FMG denied hitting his daughter at the football in 2015. He also denied grabbing his son by the shirt and threatening to smack him in the mouth in 2016 following an incident at a bus stop. Mr Chiam suggested that the Tribunal should not view these allegations as baseless and it is possible that the allegations are true, given the history of FMG’s conduct.

Consideration

Preliminary comments on determining risk to the safety of children

137. It is useful at this point to revisit the fact that what the Tribunal has to determine on administrative review is whether or not to affirm, vary or set aside the decision of the Children’s Guardian made on 16 March 2023 to refuse FMG a Clearance (refer to section 27 of the Child Protection (Working with Children) Act 2012 and section 63 of the Administrative Decisions Review Act 1997). This in turn involves consideration of the question of whether we are satisfied that FMG poses a risk to the safety of children and must include consideration of the considerations set out in section 30(1) and (1A) of the Child Protection (Working with Children) Act 2012 which are set out at [17] and [18] above.

138. The Court of Appeal has set out how the Tribunal is to approach the process fact finding and reaching conclusions as to risk in these types of proceedings. The Court’s decision in CXZ v Children’s Guardian [2020] NSWCA 338 followed a series of cases which are relevant to how the Tribunal should go about assessing allegations: M v M (1988) 166 CLR 69; BKE v Office of Children’s Guardian [2015] NSWSC 523; Office of the Children’s Guardian v CFW [2016] NSWSC 1406 and Tilley v Children’s Guardian [2017] NSWCA 174.

139. Allegations can fall into three categories as the Tribunal goes about the assessment of the evidence. The Tribunal might make a positive finding that some allegations are true. It might make findings that other allegations are not true. There is then another category of allegations that fall in between these two. These are allegations about which the Tribunal cannot be positively satisfied and are neither proved or disproved and remain and must be considered when determining the question of risk.

140. As Simpson AJA said in CXZ v Children’s Guardian at [57] and [58]:

The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.

It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.

Findings of fact

Positive factual findings

141. We are positively satisfied that on 6 October 1998 FMG punched his 17 year old brother-in-law twice when he was lying on the ground and that he struck his brother-in-law a third time when he was on the ground. We also find that FMG’s actions left his brother-in-law with a chipped tooth and lumps on his head. We find that FMG’s six year old daughter and nephew were present during this incident. We do not make any finding as to the age of the nephew.

142. The evidence supporting these findings is very strong, and were the subject of findings by a Local Court magistrate, following a criminal trial and to the criminal standard, that is, beyond reasonable doubt. On appeal the District Court found the offence proved. We had the benefit of the transcript of the trial of the Local Court.

143. The actions of FMG towards a 17 year old family member is not the only issue of concern, but also the fact that at least one other child present, a young child of six years old. In that respect, we agree with the observation made by Senior Member Anderson in CGP v Children's Guardian [2017] NSWCATAD 12 at [83]:

The effect of violence on children is well-known and they do not have to be the subject of an assault in order to experience fear and for there to be an impact on their neuropsychological development.

144. We are positively satisfied that about two weeks prior to 18 July 2006 FMG threw a cup at his 15 year old daughter hitting her in the leg. We are satisfied that this allegation is in fact true on the basis as this was the most recent incident relied on in the application for the Telephone Interim Order and that ultimately a final AVO was made by the Local Court for a period of 12 months. Our finding is further strengthened by the acknowledgement FMG made about whether he threw the cup, under the protection of a section 128 Certificate, when he said: “I may have done that”.

145. On 18 December 2011 FMG had an interaction with his son, whom the Local Court Magistrate described as his 13 year old son but we find was 12 years old, based on the date of birth FMG himself provided to the Children’s Guardian in the document ‘WWCC Submission’ and as is suggested by the Respondent in written submissions.

146. We are positively satisfied that on that date FMG pushed his 12 year old son and held him by the neck using the hood of his hoodie jacket. The evidence for this finding is very strong given that the matter went to trial and the Magistrate was satisfied beyond reasonable doubt this was what occurred. We had the benefit of reading the transcript of the trial. An AVO was also issued for the protection of the older son. We find that other children were present during the incident, namely FMG’s 11 year old son and his eight year old daughter.

147. We are positively satisfied that on 28 November 2015 FMG grabbed his partner’s neck and held her down on a bed with force, leaving red markings on her neck. We are satisfied that FMG applied pressure to his partner’s throat by grabbing her around the throat and applying the pressure of his fingers to the front of her throat area as was found by the Local Court Magistrate. We had the benefit of reading the Local Court judgment as well as the transcript of the trial. These findings were made to the criminal standard of proof. We also find that FMG’s 16 year old son was on the premises when the assault occurred. This was not contradicted by FMG in any of the evidence filed and was referred to directly in both the trial transcript and also the Respondent’s written submissions.

Allegations about which positive findings cannot be made

148. We considered the allegation that on 25 September 2008 FMG punched his 17 year old daughter with a closed fist to the middle of her face, causing her pain to her face, redness to the nose and a headache. The charges from this incident were dismissed by the Local Court and FMG gave evidence in these proceedings that this conduct did not occur.

149. We found that we could not reach a positive factual finding that the conduct as alleged occurred. Rather, the evidence did not permit us to reach a conclusion that the allegations were without foundation.

150. We reached the same conclusion in respect of the two incidents drawn from the DCJ records. We were unable to reach a positive factual finding about the incident at the football field on 12 July 2015. We could not be positively satisfied that FMG had physically assaulted his ex-wife and hit his daughter and she had bruising to her ribs. We note that FMG denied hitting his daughter in his oral evidence.

151. We also could not be positively satisfied that on 10 February 2016 FMG grabbed his 15 year old son by the shirt and said something like “if you don’t stop I will smack you in the mouth” in the presence of the approximately 10 year old sister. We note that FMG denied this conduct.

152. The evidence drawn from the DCJ records leaves open the possibility that this conduct in fact occurred as the allegations are not without foundation.

Other allegations made

153. As to the other allegations made against FMG, we did not consider it necessary to make factual findings as they did not concern conduct directed at or in the presence of children.

154. We excluded from our consideration the alleged break and enter offence in 2018. We were satisfied on the evidence before us that we should reject the allegation as unfounded. This is in line with the jury’s not guilty verdict and also the findings of the Court in respect of FMG’s wife’s credit.

155. We note the Respondent’s submissions as outlined above to the effect that despite not meeting the criminal standard, the Tribunal should determine whether the 2018 allegations are credible or not. We agree, given we apply the civil standard of proof. While not bound, we are guided by the need for a greater cogency of evidence where serious allegations of criminal conduct are made (using Briginshaw v Briginshaw [138] HCA 34 and section 140(2) of the Evidence Act 1995 as a guide). On assessing the supporting evidence and the credibility issues identified in respect of FMG’s wife, we could not be satisfied to the requisite degree on the evidence before us. We concluded that the allegation was unfounded.

Assessment of the expert evidence and character references

156. Mr Ebert’s evidence was considerably weakened under cross-examination. He agreed he had not seen FMG in the intervening period between the appointments in 2016 and the first appointment in 2023 when he then provided his 2 August 2023 letter.

157. Mr Ebert admitted that his progress notes did not refer to FMG’s use of alcohol. Mr Ebert conceded he did not know FMG had a previous problem with alcohol.

158. Importantly, Mr Ebert was not aware of some of the allegations about which we made positive factual findings, including:

• That on 6 October 1998 FMG punched his 17 year old brother-in-law and that his six year old daughter was present.

• That on 18 December 2011 FMG held his 12 year old son by the neck using the hood of his hoodie jacket and that his 11 year old son and his eight year old daughter were present.

159. We consider these deficiencies in Mr Ebert’s assessment significantly undermined his opinion that it is unlikely that FMG would pose a risk to the safety of children. We therefore accord his opinion little weight.

160. The character references on which FMG relies either do not sufficiently refer to his criminal history or the allegations made about him. We therefore accorded little weight to their opinions as to his character (refer to Sawires v Commissioner of Police [2010] NSWADT 4 at [53]).

Addressing other points made in submissions

161. We agree with the point made by Mr Chiam about the argument that FMG would have limited contact with children if he was to work as a bus driver (refer to [95]). This is because once a person is granted a Clearance, they can work in a range of child-related employment.

162. We did not place significant weight on Mr Chiam’s argument that FMG was inconsistent in his evidence that he had ceased consuming alcohol in mid-2017 and he not drink other than some wine at weddings and birthdays but had a glass of wine on 21 March 2018. We did not find this issue significant.

Application of the section 30(1) mandatory considerations

(a)  the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar

163. The conduct of FMG is serious in nature. His conduct included: punching or striking his brother-in-law; throwing a cup at his daughter; holding his son by the neck using the hood of his hoodie jacket; grabbing his partner around the throat and applying pressure to the front part of her throat when his son was on the premises. We also considered we could not disregard the allegations that he punched his daughter with a closed fist, hit his daughter and grabbed his son by the shirt.

(b)  the period of time since those offences or matters occurred and the conduct of the person since they occurred

164. The conduct occurred in 1998, 2006, 2011, 2015 and the allegations we could not disregard arose in respect of 2008, 2015 and 2016.

165. FMG has not been convicted of any criminal offence since 2015 and had no charged since 2018 nor been the subject of an AVO since 2015. We accept that FMG has largely ceased consumption of alcohol.

(c)  the age of the person at the time the offences or matters occurred

166. FMG was aged between 32 and 49 years old between October 1998 to February 2016.

(d)  the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

167. The victims were 17 years old (with a six year old present), 15 years old, 12 years old (with an 11 and 8 year old present), an adult (with a 16 year old present).

168. The allegations we could not disregard concerned a 17 year old and a 15 year old.

(e)  the difference in age between the victim and the person and the relationship (if any) between the victim and the person

169. The differences in age are approximately 15, 25, 33 in respect of the primary child victims. They were all children related to FMG and part of his extended family.

170. In respect of the allegations which we could not discount, the age differences were 25 and 34 years.

(f)  whether the person knew, or could reasonably have known, that the victim was a child

171. FMG knew that the victims were children.

(g)  the person’s present age

172. FMG was 57 years old as at the hearing.

(h)  the seriousness of the person’s criminal history and the conduct of the person since the matters occurred

173. We consider FMG’s criminal history to be serious in nature. We are satisfied that he has largely ceased consumption of alcohol. Refer also to [165].

(i)  the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

174. We cannot exclude the possibility that FMG might engage in violence towards children in his extended family in future.

(i1)  any order of a court or tribunal that is in force in relation to the person

175. No such orders are in force.

(j)  any information given by the applicant in, or in relation to, the application

176. We acknowledge FMG’s evidence that he used to drink a lot and that he has largely stopped consuming alcohol since 2017. FMG told the Tribunal that he deeply regretted his past behaviour and the impact it had on his ex-wife and children.

(j1)  any relevant information in relation to the person that was obtained in accordance with section 36A

177. No such information was obtained.

(k)  any other matters that the Children’s Guardian considers necessary

178. The Respondent did not identify any other matters.

Conclusions as to the section 30(1) considerations and risk

179. We made a number of factual findings about violence perpetrated by FMG against or in the presence of children from his extended family. However, we are not satisfied that FMG is a risk to the safety of children generally and in the context of child-related employment. We are satisfied that he poses a real and appreciable risk to the safety of children in his extended family because of his prior conduct and the fact that there was no evidence on which we could place significant weight to show he had addressed his violence towards children in his family.

Would a reasonable person allow his or her child to have direct unsupervised contact with FMG?

180. This requirement is set out in section 30 (1A) of the Child Protection (Working with Children) Act 2012. We turned our mind to what a reasonable person knowing of the conduct and being aware of all the facts would allow his or her child to have direct unsupervised contact with the applicant (refer to CSZ v Children’s Guardian [2017] NSWCATAD 57 at [30]).

181. Given the gravity of FMG’s conduct towards children, albeit in his own family, we cannot be satisfied that a reasonable person would allow direct unsupervised contact with FMG when he was engaged in any child-related work. We find that the reasonable person would be concerned about FMG’s previous violence including towards children and would have serious concerns about leaving his or her own child with FMG unsupervised.

Is it in the public interest to make the order?

182. Given our finding that we cannot be satisfied that the reasonable person would allow such contact, it is not necessary to address whether it would be in the public interest to make the order.

Conclusion

183. We are therefore satisfied that the correct and preferable decision is to affirm the decision under review.

ORDERS

1. The decision made by the Children’s Guardian on 16 March 2023 to refuse to grant FMG a working with children check clearance is affirmed

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 February 2025