FRU v Children's Guardian

[2025] NSWCATAD 224

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FRU v Children’s Guardian [2025] NSWCATAD 224

Hearing dates:

10 February and 6 March 2025

Date of orders:

5 September 2025

Decision date:

05 September 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Redfern PSM, Senior Member
J Herberte, General Member

Decision:

The Tribunal dismisses the application for an enabling order

Catchwords:

ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 —disqualified person – application for enabling order — alleged domestic abuse — whether a real and appreciable risk to the safety of children — presumption of risk — whether presumption displaced

PROCEDURE — rejection of the tender of audio recordings — rejection of documents recording helpline reports

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Evidence Act 1995 (NSW)

Surveillance Devices Act 2007 (NSW)

Cases Cited:

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

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

Commissioner for Young People v V [2002] NSWSC 949; 56 NSWLR 476

CXZ v Children’s Guardian [2020] NSWCA 338

GGE v Children’s Guardian [2024] NSWCATAD 330

M v M [1988] HCA 68; (1988) 166 CLR 69

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FRU (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (Self-represented)

Counsel:
H Murphy (Respondent)

Solicitors:
Crown Solicitor

File Number(s):

2023/00019515

Publication restriction:

With the exception of officers of government agencies, 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

Introduction

1. On 22 November 2022, the applicant, who has been given the pseudonym FRU, applied for a working with children check clearance pursuant to the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), nominating “clubs or other bodies providing services to children” as the relevant child-related employment sector. The applicant was notified that his application was refused by notice of decision dated 21 December 2022.

2. The basis for the refusal was that the applicant is a “disqualified person” under the WWC Act because he was found guilty on 2 August 1996 of an offence identified as an “disqualifying offence” for the purposes of the WWC Act.

3. On 18 January 2023, the applicant applied to the Tribunal for review of the decision to refuse his application, seeking an enabling order that he be granted a clearance. The applicant contends that he does not pose a risk to the safety of children.

4. On 19 April 2023, the applicant’s lawyers wrote to the Tribunal stating that the applicant was “currently responding to criminal charges that are pertinent to his application for an enabling order”. The applicant requested that various orders be vacated and that the proceeding be listed for directions after 13 July 2023. Consent orders were signed by the parties agreeing to a delay in the proceedings. The Tribunal received similar correspondence after July 2023 and on 14 February 2024 the applicant’s lawyers requested that the proceedings be adjourned while the proceedings before the criminal courts were being finalised. There were further delays to give the applicant the opportunity to retain an expert. On 10 October 2024, directions were made about the conduct of the proceedings, was listed for hearing on 10 and 11 February 2025.

5. At the time the application was lodged, the applicant was legally represented. By the time of the hearing, the applicant represented himself. The respondent was represented by counsel. Both parties lodged bundles of documents, including, in the applicant’s case, statements, references and reports from a registered psychologist.

6. The applicant gave evidence at the hearing and was cross examined. In addition to references supporting his application, the applicant relied on a report from registered psychologist, Dr Thomas Dornan. The proceedings were adjourned to 6 March 2025 for Dr Dornan to give evidence at the hearing.

7. We have decided to refuse the application for an enabling order under s 28 of the WWC Act and dismiss the application. These are our reasons.

Background

8. The applicant is a 55-year-old man. He was previously in a relationship from the age of 23 with a partner who he had first dated when they were at high school. They married. He has two children from that relationship and reportedly also raised his partner’s child, who lived with them. The applicant and his former partner reportedly had periods of separation, and their relationship finally ended in 1999.

9. The applicant commenced or a relationship with a second long term partner in 1999. They married but divorced in November 2020. They have one child. The applicant has reportedly not been in a relationship since this time.

10. The applicant contends that false allegations have been made against him by his ex-wives.

11. On 10 May 1996 the applicant pleaded guilty to indecent assault under s 61L of the Crimes Act 1900 (NSW) (the Crimes Act) and other related offences of breaching an apprehended violence order. These offences related to an incident on 10 February 1996 involving his first wife. He was sentenced on 2 August 1996 to 200 hours community service for each offence, to be served concurrently.

12. Since this conviction, the applicant has been charged with a number of offences, many related to the breaching of apprehended domestic violent orders (ADVOs) and domestic violence related offices. In addition to the offences for which he was convicted on 2 August 1996, the applicant has been convicted or found guilty of six offences. The documents evidencing these offences was included in the respondent’s material lodged with the Tribunal. Those offences are as follows:

1. 23 October 1997: breach of bail, sentenced (not specified in criminal records check).

2. 6 December 1998 and appeal 12 December 2000: assault, sentenced to bond four months and 18 days, following all grounds appeal on sentence and conviction, where the conviction was confirmed.

3. 17 December 2021: assault occasioning actual bodily harm against a child, found guilty without conviction and sentenced to a conditional release order.

4. 2 August 2022: three counts of contravention of prohibition/restriction in AVO, sentenced to monetary fines with all convictions being confirmed on appeal. In dismissing the appeal, the District Court (Judge Haesler SC) found that the appeal had no merit on its legal basis stating:

…….the bottom line is that the purposes inherit in our legislation require that courts acknowledge breaches and the seriousness of any breach of apprehended domestic violence orders. That is what the magistrate did. And, frankly, she dealt with it probably more leniently and more compassionately than I would have done if I had been dealing with it at first instance.

13. The criminal proceedings referred to in para 12(2) above relate to an allegation of assault on 6 December 1998 on the spouse of the mother of the applicant’s first wife. The assault was alleged to have taken place in the front yard of the victim’s house. The matter came before the court on 19 November 1999. The matter was adjourned part heard to allow the applicant to obtain medical records and, after further hearing on 13 December 1999, the Magistrate convicted the applicant of common assault. A conviction was recorded on 2 February 2000, and the applicant was ordered to be conditionally released upon entering to into a good behaviour bond for two years. The applicant appealed the conviction and sentence. On 12 December 2000, the conviction was upheld, but the good behaviour bond was reduced to 4 months and 18 days.

14. The criminal proceedings referred to in para 12(3) above relate to an incident alleged to have taken place on 12 May 2020 involving the applicant’s son with his second ex-wife. The applicant was charged with assault occasioning actual bodily harm (domestic violence related) and common assault (domestic violence related). The second charge of common assault was withdrawn in light of the first charge, which was pursued.

15. The charges arose because the applicant struck his son with a belt. His son was about 13 years old at the time of the offence. The applicant defended the charges, asserting lawful parental correction. The Magistrate made the following observations at the end of the hearing on 17 December 2021:

….in my view the evidence of the complainant’s son who according to him was wearing silk pyjamas which would afford virtually no protection against a strike if you were struck with a belt. I have no doubt and certainly the young person who naturally I think would be reluctant to give evidence against his father in a court of law, certainly in his DVEC statement and his evidence today impressed me as a witness of truth, he had no hidden agenda, clearly was uncomfortable and disliked the thought of having to tell strangers, people who he has never met before in a court what happened on that evening, but was ready to make admissions against self-interest, he readily accepted he was disobedient, but the conduct he displayed towards his father was inappropriate, it was disobedient and that he was refusing to obey an instruction given by his father.

…….

I am satisfied that for the purposes of assault occasioning actual bodily harm. I accept the evidence of the young person and I have no doubt the welts are certainly consistent with the nature of the conduct that has been established. The question is whether or not the conduct was appropriate in the circumstances.

16. After hearing submissions at the parties about the defence of lawful parental correction, the Magistrate found that the application of force by striking the son with a belt, telling him to turn away and face him so that he could apply that force, was not reasonable. The Magistrate therefore found that the defence had not been made out and, as such, the offence of assault occasioning actual bodily harm had been established.

17. In sentencing the applicant, the Magistrate found that, while the applicant did have matters on his record where offences were established, he was not satisfied that the applicant was a person who ordinarily goes about resolving issues with violence. The Magistrate stated that while he was not satisfied the applicant had responded appropriately, he was nonetheless satisfied that a lengthy conditional release order for a period of 12 months would be appropriate. The Magistrate also decided that it was appropriate to proceed without conviction.

18. The applicant appealed the finding of guilt, and the appeal was dismissed by Judge Baly SC on 22 June 2022.

19. The applicant was charged and convicted of four offences on 15 December 1999 and a further offence on 18 August 2010. Each of these convictions was quashed on appeal by the District Court. The convictions in 1999 related to breach of ADVOs and resisting arrest. The conviction on 18 August 2010 was for common assault.

20. Between 1989 and 2021 the applicant was charged with eight offences, of which seven were assault or common assault offences. All of these charges were either withdrawn (two charges withdrawn by police) and the balance were dismissed by the court, one after hearing. One of the early charges dated May 1994 related to a younger relative of the applicant’s first ex-wife. The charges (act of indecency and assault towards a person under 16) were dismissed. Charges of common assault dated March 2005 in relations to allegations made by the applicant’s stepdaughter were dismissed (no evidence offered) and charges relation to allegations of common assault made by the applicant’s second ex-wife were dismissed.

21. There are multiple allegations against the applicant recorded in the NSW Police records, referred to as “Event reports” in the period between 1995 and 2020. The applicant was not charged in relation to any of these events. Two separate incidents related to allegation of acts of violence made by his ex-wives, in the presence of children. Three incidents related to third parties, two at a club and a motel and the third at the applicant’s house. One was a verbal altercation and the other two involved physical violence.

22. The applicant has an extensive history of apprehended domestic violence orders (ADVO), with 16 interim ADVOs and six final ADVOs between 1991 and 2023 and two interim ADVOs and one final ADVO as at May 2023. At the time of the hearing, there were no active ADVOs in place.

23. As already noted, these proceedings were delayed until proceedings for the contravention of various criminal proceedings were finalised. Those proceedings are outlined below.

24. The first proceeding related charges on 3 September 2022 that the applicant had contravened an ADVO in favour of his second ex-wife. The charge concerned the contravention of an ADVO relating to the alleged intimidation and stalking at a Court House and, secondly, on five or six occasions where the applicant attended a property co-owned by he and his second ex-wife. The proceedings were dismissed on 15 August 2023. The Magistrate was not satisfied beyond reasonable doubt that there was intent. Further, while finding that the applicant had been in his ex-wife's house without her knowing and this was “poor behaviour”, the Magistrate was not satisfied that the applicant intended for his ex-wife to fear for her safety.

25. The second proceeding related to an application for an AVO made against the applicant (the date of the application is unclear) by first ex-wife. The matter came before the court on 22 January 2024. The applicant’s ex-wife was not available to give evidence in person on that day and requested leave to attend by telephone. This was rejected by the court, as was the subsequent application for the hearing to be vacated. In those circumstances, the prosecution withdrew the application.

26. The third proceeding was an application made by the applicant’s second ex-wife which came before the court on 6 May 2024. The Magistrate noted that there had been a “two-way street” between the applicant and his second ex-wife. The applicant had been made because the applicant had attended on her home without her consent on numerous occasions. The Magistrate noted that the fact that the applicant's second ex-wife did not want him around because they had a failed marriage was not of itself sufficient to make an apprehended violence order, noting that they jointly owned the property and the applicant still had tools at the premises that he wished to access. The Magistrate dismissed both applications, observing that the applicant had exercised a lot of common sense and encouraged him to continue to do so.

27. Accordingly, by the time of the hearing there were no outstanding criminal proceedings or charges against the applicant.

28. The applicant has been involved in the building and construction industry for over 36 years. He has a permanent impairment from workplace injuries to his ankle and shoulder which he states limits his ability to work full time in construction. The applicant now holds a Certificate IV in Training and Assessment, which he obtained so he could retrain as a construction teacher. He seeks an enabling order and working with children clearance so he can pursue a new career.

Statutory framework

29. The WWC Act establishes a statutory scheme to protect children by not permitting by requiring persons engaged in child-related work to have working with children check clearances. This is the sole object of the WWC Act as set out in s 3. Section 4 provides that the safety, welfare and well-being of children, and in particular, protecting children from child abuse, is the paramount consideration in the operation of the WWC Act.

30. Section 5B of the WWC Act provides that a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

31. The term child-related work has the meaning in ss 6 and 7 and involves direct contact by the worker with a child or children where that contact is a usual part of and more than incidental to the work. Section 8 provides that a worker must not engage in child-related work unless the worker holds a working with children check clearance of a class applicable to the work. Section 12 provides for two classes of working with children check clearances, namely volunteer clearances, authorising workers to engage in unpaid child-related work, and non-volunteer clearances, authorising workers to engage in paid and unpaid child-related work.

32. Section 13 provides that a person may apply to the respondent for a working with children check clearance. The application must specify the class of clearance requested. A person who is refused a working with children check clearance or whose clearance is cancelled is not entitled to make a further application for clearance until five years after the date notice of the refusal or cancellation was given to the person or unless a further early application is permitted: s 13A of the WWC Act.

33. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in Schedule 1 to the Working with Children Act apply to the person. Schedule 1 sets out assessment requirement triggers. These triggers include cases where proceedings have been commenced against a person for certain offences specified in cl (1) of Schedule 2, cases where proceedings have been a commenced against a person for an offence specified in the cl (2), being offences committed against or in the presence of a child, and cases where a person has been convicted of specified offences against or involving a child. Further grounds specified in Schedule 1 that trigger a risk assessment are cases where there has been a finding of misconduct involving children by a reporting body that the person engaged in a sexual offence committed against, with or in the presence of a child, sexual misconduct committed against, with or in the presence of a child or any serious physical assault of a child (Sch 1, cl (2)).

34. Section 15 provides that the respondent must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of the children if the respondent becomes aware that the applicant, or holder, is subject to an assessment requirement. Section 15(4) sets out the matters that the respondent may consider when making an assessment. These matters are in similar terms to the matters the Tribunal must consider as set out in s 30 below.

35. Section 18 of the WWC Act sets out how the determination of applications for clearances must be made and provides as follows:

18 Determination of applications for clearances

(1) The Children's Guardian must not grant a working with children check clearance to the following persons ("disqualified persons")--

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

(2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.

(3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3. offences

36. Schedule 2, relevantly cl (1), identifies the offences that are specified to be “disqualifying offences” such that a person who has committed that offence is a “disqualified person” for the purposes of s 18(1) of the WWC Act.

37. Relevant to the facts of this case, the applicant was convicted of indecent assault pursuant to s 61L of the Crimes Act in 1996. Section 61L is a disqualifying offence under cl 1(e), Sch 2.

38. Section 61L was repealed in December 2018 but at the time of the applicant’s conviction, s 61L provided as follows:

61L   Indecent assault

Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.

39. Section 61KC, which is also a disqualifying offence under cl 1(1)(e) of Sch 2, was inserted into the Crimes Act in 2018. Section 61KC was intended to replace s 61L and provides as follows:

61KC Sexual touching

Any person (the "accused person") who without the consent of another person (the "complainant") and knowing that the complainant does not consent intentionally--

(a) sexually touches the complainant, or

(b) incites the complainant to sexually touch the accused person, or

(c) incites a third person to sexually touch the complainant, or

(d) incites the complainant to sexually touch a third person,

is guilty of an offence.

40. The maximum term of imprisonment for contravention of s 61KC is 5 years imprisonment.

41. Given s 61L has been replaced by s 61KC and the conduct the subject of the original offence is still conduct which is an offence, s 61L is not an “excluded offence” under cl 2 by reason of the repeal of the provision (refer also GGE v Children’s Guardian [2024] NSWCATAD 330).

42. Accordingly, the applicant is a “disqualified person” for the purposes of s 18(1) of the WWC Act.

43. There is no discretion to grant a clearance to a disqualified person and the respondent must refuse the clearance. Despite this, if a person wishes to obtain a working with children check clearance, they must first apply for an enabling order from the Tribunal under s 28 of the WWC Act. Section 28 provides:

28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an "enabling order"). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order"). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if-

(a) the person has been refused a working with children check clearance, or

(b) the person’s clearance has been cancelled under section 23,

because the person is a disqualified person.

(4) The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(6A) To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children’s Guardian in accordance with the Tribunal’s order.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

44. Section 30 sets out the matters the Tribunal must consider in determining applications under 28. Section 30 relevantly provides as follows:

(1) The Tribunal must consider the following in determining an application under this Part--

(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.

45. If the Tribunal is considering making an enabling order, it must also consider the supplementary tests contained in s 30(1A) which provides:

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person") to work with children in accordance with this Act 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.

46. Accordingly, when considering whether an enabling order should be made, the Tribunal must be positively satisfied, as required by s 28(7), that the applicant does not pose a risk to the safety of children. In making this determination, the Tribunal must have regard to the mandatory considerations in s 30(1). Before an order can be made, the Tribunal must also be satisfied about the supplementary tests in s 30(1A) of the WWC Act.

Outline of evidence

47. The respondent provided several bundles of documents containing details about the charges, the applicant’s police history checks, information from the NSW Police, being event or incident reports (COPs), information from the District and Local Courts, including police fact sheets, and summonsed material relating to the applicant’s mental health treatment and counselling.

48. The respondent sought to tender a bundle of documents comprising helpline assessment reports, risk and safety assessments, contact records assessment and outcomes, case details and initial assessments relating to the applicant’s children over a period from 1997 to 2022. A review of these reports indicated that some of the reports relate to the applicant, and some relate to the applicant's former wives. The applicant objected to the tender of these documents. The respondent submitted that significant harm reports in respect of the applicant’s children were relevant to the Tribunal’s assessment of risk.

49. Section 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care and Protection Act) protects the maker of the report where it is made in good faith the Secretary. Section 29(1)(d) provides that the reports and the contents of the reports are not admissible in proceedings other than those proceedings specified within the subsection. The respondent acknowledges that the present proceedings are not contained within se 29(1)(d). The respondent nonetheless submits that the Tribunal should admit the risk assessment reports and rely on them as evidence having regard to s 48A(2) of the WWC Act. This section provides as follows:

A report referred to in section 29 of the Children and Young Persons (Care and Protection) Act 1998 may be provided to the Children's Guardian for the purpose of the exercise of the Children's Guardian's functions under this Act. Any such report may not be subsequently dealt with by the Children's Guardian in a manner that contravenes that section, except to the extent that it is necessary for the Children's Guardian to do so in the exercise of functions under this Act.

50. The respondent submits that on its proper construction, s 48A permits the respondent to tender risk reports where it is necessary for the respondent to do so in the exercise of its functions under the WWC Act. It is submitted that the tender of the documents is necessary where they are relevant to the proper and effective presentation of the respondent’s case and in its function to respond to the proceedings in the Tribunal, to which it is a necessary party under s 28(4) of the WWC Act. The respondent also acknowledges that the admissibility of these reports is yet to be the subject of judicial consideration or to be conclusively determined by the Tribunal in published reasons. The respondent accepts that disclosure could be inconsistent with s 29(1)(f) of the Care and Protection Act about protections on disclosure of the reporters and would only be appropriate in the most exceptional circumstances. We accept this submission is persuasive, but we have not been required to determine this issue because we have rejected the tender of the documents for different reasons.

51. As noted above, the documents included in the proposed tender bundle contained a broad range of documents and also related to material and, in some cases, allegations made against the applicant’s ex-wives. The applicant objected on the basis that many of the documents included allegations that he could not respond to or had been rejected by the courts.

52. We accept that the documents sought to be tendered were extensive. Many were inconclusive and some include vague or unsubstantiated allegations. Relevantly, the respondent was not able to point to any specific documents that evidenced detailed investigations or actions taken by the Department against the applicant. Accordingly, while we accept that risk of harm reports would be relevant to proceedings where the Tribunal must make an assessment of risk, we were not satisfied that the documents sought to be tended would assist the Tribunal, particularly in circumstances where the tender may impose an undue burden on an unrepresented litigant and may be unduly prejudicial where it is difficult for an applicant to test or respond to the material provided. Instead, we formed the view that there was sufficient cogent evidence before us on which to make an assessment of risk to determine the proceedings. As such, this tender was rejected.

53. The applicant provided an affidavit dated 18 September 2024, an affidavit filed in Federal Circuit and Family Court (FCFC) proceedings dated 30 November 2023, references and statements from supporters, a letter of complaint to the Attorney General dated 12 August 2024, an undated letter to the Law Enforcement Conduct Commission and various certificates and reports from Dr Thomas Dornan dated 20 September and 11 December 2024.

54. The applicant sought to tender a USB containing recordings of the applicant’s second ex-wife where he alleges she verbally abused him. The applicant says that the recordings were made over four years ago. He sought to tender the recordings to substantiate his claims that actions taken by second ex-wife justified his response and that she was the protagonist.

55. The respondent opposed the tender of the USB. First, there was no evidence the recording had been obtained with the consent of the applicant’s second wife, and it was therefore in contravention of the Surveillance Devices Act 2007 (NSW). The tender should be rejected pursuant to s 138 of the Evidence Act 1995 (NSW). Secondly, there was no evidence about the provenance of the recording and concerns were raised about whether the recording “cherry picked” parts of the discussion between the applicant and his second wife, such that it did not present a complete picture of the circumstances giving rise to the discussion. Thirdly, the applicants second ex-wife, who was on the recording was not available for to give evidence in relation to the recording. Fourthly, the recording had little relevance to the proceedings, and, given the other matters, the recording had little probative value.

56. We accepted these submissions and rejected the tender for all of the reasons outlined above.

Evidence in relation to the disqualifying offence

57. The respondent provided documents from the police brief in relation to the disqualifying offence. This included a statement from the applicants first wife, a statement from the applicant, fact sheets and statement from the investigating police officers.

58. According to the statement of the applicant's ex-wife, she was at a leagues club with some friends on a Friday evening and she walked over to a male friend’s car so he could give her a lift home. The male friend started kissing her. She then saw the applicant get out of a car that was just in front of them, come back and grab the male companion by the shoulder and drag him out of the car. She saw the applicant hit the male companion in the head with a closed fist. The applicant then came around to her side of the car picked her up and put her into his car and asked his companion in the car to drive away. During this drive, the applicant put his hand on her left breast and down her top. She resisted and screamed and asked him to leave her alone. She finally was able to open the door and got out of the car, at which time the applicant grabbed her and threw her onto the ground. He threatened her. The applicant’s ex-wife then described the applicant undoing the buttons on her top. She protested and after that he let her do her buttons back up but made derogatory comments to her. After this, one of her friends came to her and they walked for a while. They got back into the applicant's car and he drove her to a house, after which time she went straight to the police station. When this incident had occurred, she had been separated from the applicant for seven months.

59. The applicant’s handwritten statement to police presented a different narrative. He said that he was on the way home from the leagues club and noticed that his ex-wife was getting very drunk. He asked to speak to her privately and said to her that she should have more respect for him and for herself. The applicant stated that his ex-wife threw a drink at him, and he did nothing about it at that time, but he later saw her in the male companion’s car. He stopped the car and approached them. His ex-wife was climbing over the driver’s seat and was abusing him. He said that he would take her home and then picked her up and put her in the front seat of his car. She was hitting and punching him at this time and asked him to let her out. He put his hand on her arm, but she started hitting him and fell to the ground. She complained that he had been putting his hand up her dress. He denied this. In other words, the applicant denied his ex-wife’s account of events and further stated that he had noticed she had become self-destructive over the past three months.

60. The fact sheet presented to the court was in similar terms to the statement of the applicant’s ex-wife as referred to above.

61. According to the Court file, a number of witnesses were subpoenaed to give evidence at the hearing. However, the hearing did not proceed as the applicant pleaded guilty.

62. Included in the court file was a pre-sentence report dated 1 August 1996. The pre-sentence report noted that the offender had a disrupted background, and his parents had been separated when he was eight years old due to his father’s violence and infidelity. The applicant reportedly told the probation officer that there were problems in the marriage straight away. The pre-sentence report noted as follows:

Whilst admitting that he was violent to his wife during the marriage he stated that other problems arose due to his wife being traumatised by her father's sexual abuse of her as a child. He also stated that his wife has an alcohol problem.

……………

While stating his desire to reconcile with his wife, he appears to have limited relationship skills and neither he nor his wife have attended for relationship counselling together. [FRU] presents as having an unrealistic view of what appears to be a dysfunctional relationship.

63. The report further notes that the applicant admitted the offences and stated that he was intoxicated at the time. It is recorded that the applicant told the probation officer that following his arrest, he had admitted himself to a private hospital in Sydney for treatment for depression. He remained at the hospital and a letter from the hospital indicated that he had made some progress in his recovery and had gained some insight into his behaviour. It was further noted that the applicant had stated he subsequently sought counselling at a local church. The applicant was assessed as suitable for a community service order.

Summonsed material from Dr Kye McCarthy and Relationships Australia

64. Dr Kye McCarthy is a clinical psychologist. According to records produced by Dr McCarthy, the applicant was referred by his general practitioner and contacted Dr McCarthy on 14 June 2022. Following this, the applicant saw Dr McCarthy for eight sessions between July 2022 and February 2023. He reported that his ex-wife had accused him of domestic violence, and he had been accused of hitting his son for discipline. The applicant reported that he was feeling down, sad, tearful and anxious in the context of the breakdown of his twenty-year marriage. It was also reported that the applicant had spent seven weeks in prison in March 2022 for breaching AVOs as well as for disciplining his son. Dr McCarthy noted that the applicant denied most wrongdoing. He reportedly stated the blame for the ongoing situation lies with his ex-wife. Dr McCarthy noted that the applicant had low insight into his own role. The applicant also reported that he was attending Relationships Australia Men's Group which he said he hates because he felt blamed. This was repeated in subsequent sessions, and it was noted in session number 6 that the applicant had been discharged from the Relationships Australia program as it was not working out. There is no record of the applicant consulting with Dr McCarthy after February 2023 and it was also noted that the Dr McCarthy was going on maternity leave in May 2023.

65. Relationships Australia produced documents confirming that it had conducted family counselling with the applicant but noted that limited material could be provided. It is recorded that the referral commenced from 12 November 2020. Because of the number of redactions from the various documents, little could be gleaned from these documents.

Applicant’s evidence

66. The applicant provided an affidavit dated 24 September 2024. In summary, the applicant states:

1. The applicant refers to the disqualifying offence, being the offence of indecent assault and ADVO matters relating to his first ex-wife, being the offences for which he was convicted in 1996. The applicant stated that at the time of the offence he was 25, his first ex-wife was 24. They had been separated for about 6 months, and he had been staying at his ex-wife’s house regularly to help her with household tasks and with the children.

1. Throughout their marriage the applicant endured emotional abuse from his first ex-wife, which often involved her heavy drinking and mental health issues that stemmed from sexual abuse from relatives when she was young. He decided to plead guilty to the indecent assault charge and this was influenced by his desire to maintain his family and alleviate stress. The applicant denied that he engaged in any sexual misconduct. He further stated that his first ex-wife consistently filed complaints with police over minor issues, often using the children to manipulate and control him. The applicant’s first ex-wife accused him of inappropriate behaviour towards his stepdaughter which was reported to community services. According to the applicant, the accusations were unfounded.

2. The applicant's relationship with his first ex-wife ended around 1999.

3. The applicant alleges that his involvement with his first ex-wife and her family has led to numerous unsubstantiated allegations against him. An example of this is an indecent assault allegation made by the younger brother of his first ex-wife in about 1994 when he was approximately 18 or 19 years and the brother was about 16 years old. This allegation was dismissed.

4. There was a further allegation made in relation to an incident in 1998 where the applicant says he acted in self-defence. This is the conviction referred to at para 12(2) above. Despite the evidence supporting his defence, the applicant believes that because of his lack of legal representation the hearing resulted in an unfair outcome for him.

5. The applicant also referred to charges laid against him in 2013 involving his second ex-wife, who was at this stage his wife, because he found her in a compromising position with another man. He defended himself in the prosecution and the charges were dismissed.

6. Finally, the applicant referred to the charges involving the assault of his son after he had disciplined him. The applicant notes that he believed he had been acting lawfully.

7. The applicant concludes that many of the allegations and charges documented throughout the documents provided by the respondent were either dismissed or based on false accusations from his ex-wives. He denies assaulting his second ex-wife.

67. The applicant also provided a copy of an affidavit lodged by him in the FCFC. The affidavit provides details of the assets and liabilities of he and his second ex-wife. It is apparent from the affidavit that was a dispute about the financial settlement relating the assets of the marriage at that time. In this affidavit, the applicant states that his second ex-wife is the perpetrator of abuse in their relationship and that she has manipulated the criminal legal system to obtain exclusive occupancy of a property jointly owned by them. The applicant alleges that his second wife became physically and verbally abusive towards him when she became intoxicated. There was abusive behaviour in front of their son. The applicant also noted in this affidavit that his second wife told police he had physically abused their son by smacking him when he was disciplining his son. The applicant stated that he did discipline the son with a belt, but it was his ex-wife’s fault because his son had spoken to him in a similar derogatory manner to the way that his ex-wife spoke to him in front of his son. The applicant noted that his son now lived with him and did not have a relationship with his mother.

68. The applicant also relies on a letter dated 12 August 2024 that he sent to the NSW Attorney General. This letter is 10 pages in length. We will not outline the detail in the letter but rather summarise the essence of the issues raised by the applicant as the letter provides context to the applicant’s attitude to the various criminal proceedings and complaints that have been made against him.

69. In this letter, the applicant requests an inquiry and compensation in relation to a number of matters where he states that there is unfairness in the way that the NSW Police Force administers the law. The applicant further states that the presumption of innocence is no longer part of the justice system and the justice system is no longer fit for purpose. The applicant states that families in crisis are being destroyed by undue government interference and incompetent police inflaming situations that should be referred to support services on a first basis. The applicant states for that for the past 33 years he has been subjected to repeated charges by the NSW Police Force in relation to alleged breaches of the law and ADVO matters which have ultimately been dismissed or if they were not dismissed, they should have been. The applicant states the courts have taken the word of police as correct and trustworthy. This is a systemic issue.

70. The applicant further states that he has been married twice and, in both marriages, his spouses struggled with alcohol abuse and exhibited physically and emotionally abusive behaviour. Both wives made false reports to police when he acted in self-defence and was attempting to prevent destructive behaviour. The applicant states that the current legal framework does not provide sufficient protection for men against spouses who misuse the legal system for personal gain, such as remaining in the family home. The applicant then goes on to criticise issues with the judicial process, the adequacy of the current framework, the need for law reform and, relevant to the case involving his son, the misapplication of the defence of lawful parental correction in s 61AA of the Crimes Act. In this regard, the applicant states as follows:

I firmly state that I did not abuse my son; Rather, I disciplined him within the boundaries set by the law. Therefore I should not have been found guilty.

71. The applicant then sets out what he believed was the intent of the legislation about lawful parental correction. The applicant states that following the incident where he was found guilty of smacking his son, the ADVO conditions were changed, and his son did not return to his mother and has since resided with the applicant. The applicant states that the Magistrate failed in his duty to protect his son. The applicant further states that he and his son have endured significant distress due to the existing ADVO conditions and the emotional harassment of his former wife. The applicant states that there was bias against him in the bail hearings and he should not have been denied bail. Finally, the applicant alleges there has been misconduct and harassment by NSW Police, and he requested a comprehensive review of all Magistrates’ conduct during the proceedings and the actions of police in relation to the matters.

72. The applicant also provided a copy of a letter that he says he sent to the Law Enforcement Conduct Commission (LECC). The later was undated. The thrust of the letter is that the applicant seeks an investigation into the integrity and conduct of various police officers and police prosecutors in the command in his area as well as the hierarchy leading the officers. The conduct complained of relates to when his second ex-wife complained to police in November 2020 that he had assaulted his son, the investigation following this and the circumstances leading to his charges. The applicant also raises further issues about the hearing, issues about the application of s 61AA of the Crimes Act and other aspects of the hearing, including the conduct of his lawyers.

73. In his oral evidence, the applicant said that while he had applied for a volunteer working with children clearance check, he now needed it for work as well. He referred an application that he had made with the Land and Housing Corporation (LAHC) as a compliance inspection officer. The applicant relied upon an email dated 10 October 2023 which had been received by him noting that he had been deemed suitable for the role as a compliance inspector inspection officer through the application process but could not be engaged due to the results of the disclosable court outcomes. In cross examination, the respondent raised with the applicant that having a working with children check clearance would not have assisted because of his previous convictions. The applicant stated that he would have appealed this decision by the LAHC to refuse his application but because he was dealing with the FCFC proceedings and trying to defend the ADVOs, he was not able to do this.

74. The applicant was questioned about why he did not defend the charges which were the subject of the disqualifying offence at the time and why he had pleaded guilty. The applicant stated that he did not understand the seriousness of the charges and he thought that this would be doing the right thing by his first wife. He said that he did not see her statement in the criminal proceedings until these proceedings. He did not agree with everything that was said by his first wife in those statements. As part of the allegations made by the applicant’s first wife, she stated that he touched her breasts. The applicant was asked if he touched another person's breasts without their permission, would it be an offence. He responded that it would be. Despite this, the applicant was still of the view that he had been falsely accused of sexual assault. When he first went to court, he pleaded not guilty but then later changed his plea. The applicant maintained that he had not received the statement of his ex-wife at the time of going to court. He disagreed with her statement, and he disagreed with the factsheet. He said that the most recent AVO application that she made against him had been dismissed because she did not attend. She was in West Australia at the time.

75. The applicant said that he met his second wife in 2000. He said that the last ADVO proceedings were dismissed because his second ex-wife had made false allegations. He made an audio recording of the events of October 2024 when she pushed him out of the house. As referred to above, the tender of this recording was rejected by the Tribunal. There was a second allegation made in relation to December 2024.

76. The applicant said that he had complaints against his first ex-wife who stabbed him with a knife. He took out an AVO against her.

77. The applicant was questioned about the fact that he appears to have been involved in a number of altercations with other people. The applicant acknowledged this and said that about 13 years ago he realised he had enough, and he had gone back to his church and had been trying to work on things since his time.

78. The applicant was asked questions about the incident involving his son in May 2020. He was asked whether he should have refrained from using a belt to discipline his son. The applicant said that he thought he could use the belt at the time. The issue was how his son had been speaking to him. The applicant was asked whether he had reflected on his conduct since this time. The applicant responded that in looking what had happened, he would change his position, but the problem was that his son pushed him and met his bluff and therefore he used the belt in punishment. He said that the situation in the house at the time was tense because of his second ex-wife’s drinking. The applicant said that he had never used the belt in aggression. He had used this form of discipline on his older children and recalls that his middle child would say to him that the belt didn't hurt. However, the applicant said that given the consequences he would not recommend doing this again and he would now not use physical punishment. In talking to other people, he had realised that this was not the best way to do it. He was more peaceful now and looking back on the situation, he believes he could have done it better.

79. The applicant said that his involvement with his church and church meetings have changed his views. He realised that parents should give children love not smacking. When asked whether he changed his mind because of the consequences of the disciplining, the applicant said ‘no’ - the issue for him was the effect on the child later in life. He said that his attitude was very different now and he realises that this could be the source of a lack of self-esteem for children and that there could be psychological harm on a child in doing this.

80. The applicant further stated that he believed he been paying for the assault charges by his first ex-wife for the last 35 years.

81. The applicant said that he wanted to get into teaching because of the difficulties in carrying out heavy work given his previous injuries. He realises that he would be teaching boys and girls. When asked how he would reason with children that he was teaching if there were issues, the applicant said that he would have to elevate problems to the head teacher. He knows that he is not allowed to touch or to hit children.

82. The applicant was taken to the notes recorded by Dr McCarthy that he had low insight. The applicant said that he did not agree with this statement. He said that when he had lived with him his ex-wives he was living in a pressure cooker environment, and he was impacted by what was happening at the time and the alcohol abuse from his partners. The applicant blames his second ex-wife for the issues that arose and was frustrated that no one was listening to him about those issues or trying to help her.

83. We accept that a number of the charges and/or convictions against the applicant have been dismissed, withdrawn or quashed on appeal, but there have also been numerous convictions and ADVO orders, including interim orders, made by the courts following hearing or upheld on appeal. We also accept that the applicant genuinely believes he has been the subject of vexatious complaints by his former spouses. However, we did not find his evidence to be reliable on key aspects of the charges and convictions, which was independently corroborated by court and police records. Overall, we found the applicant’s evidence to be self-serving rather than open and insightful. As noted, his evidence was inconsistent with other cogent documentary evidence provided by the respondent from independent sources, examples of which are set out in more detail below. Notably, his evidence about his remorse and insight was inconsistent with his statements to Dr Dornan and his letters of complaint to the Attorney General and the LECC.

References and statements of third parties

84. The applicant provided several references from a former client, friends, his children and his nephew. The referees have not been identified in these reasons as to identify the witnesses would identify the applicant. None of the witnesses attended the hearing to give evidence. Nor were they required to do so by the respondent.

85. The former client spoke highly of the applicant and gave him a work reference about building work that had been completed by the applicant. The witness spoke of the applicant’s professionalism, hard work and dedication but did not express any views about his character, noting that he was not aware of the circumstances surrounding the application. This reference is of limited weight and relevance.

86. A reference from one of his friends is to the effect that the friend had known both the applicant and his second ex-wife since about 2001, the applicant had been a rugby coach of their children. The friend was aware that the applicant was seeking a working with children check clearance and noted that he had spoken recently to the applicant about this and that the applicant had critically reflected and expressed his remorse and embarrassment of the previous situation and interactions he had many years ago with his first ex-wife. The friend noted that the applicant had established over time a respectful relationship with his previous partner. The friend noted from his interactions with the applicant over the years that he had no concerns in relation to his interactions with his children holidaying together or at his home. Insofar as this statement seeks to opine on the applicant’s remorse for his interactions with his first wife many years ago and the state of his relationship with his previous partner, this statement is of little probative value and also appears to be inconsistent with other evidence before the Tribunal.

87. In a further reference provided by another friend, the friend noted that he had known the applicant for 29 years. The friend stated that he was aware that the applicant had been refused a working with children clearance because of the incident involving the applicant and his then estranged wife which the friend had witnessed. The friend stated that he did not witness any sexual assault occurring in his presence but remembers the applicant's ex-wife being violent and aggressive towards the applicant. When the applicant told his ex-wife that he was taking her home, she became highly agitated. In other words, this the friend supported the applicant's version of events. The friend also noted that he was aware of the challenges that faced the applicant with his second wife. The applicant had disclosed to him that he had been charged with assaulting his son and he was genuinely surprised. The friend notes that the applicant has expressed to him regret regarding the use of a belt in disciplining his son and has stated that he would have avoided such action if he had been aware of the potential consequences. The friend also speaks of the applicant’s skill as a builder an extensive experience in training apprentices which would be a valuable asset to the TAFE system.

88. This statement is of limited value. It is a statement advocating for the applicant from one of his long-term friends. The friend’s contentions have not been tested and, insofar as the statement prosecutes the narrative now provided by the applicant in relation to the disqualifying offence, it is inconsistent with the police fact sheets, the applicant’s plea of guilty, the conviction and statements made by the applicant's as recorded in the prehearing sentencing report referred to above.

89. The third reference from friends is dated 18 September 2024. This reference is from a couple who have known the applicant for 16 years. The friend notes that his relationship with his second wife could be sometimes quite volatile when alcohol was involved. According to the couple, the applicant’s second wife was described as disruptive in conversations and her attitude towards the applicant became dismissive when he suggested she stopped drinking. It is further stated that the applicant has well-respected relationships with all three children from his first marriage and his son with his second wife is now in his permanent care. According to the friends, they have a 12-year-old daughter, and they would entrust her care to the applicant without hesitation. This statement has not been tested, makes serious assertions about the applicant’s ex-wife and it is unclear whether the statement is impartial in that the friends appear to be close to the applicant rather than his second wife.

90. The final statement is from a friend (one of a couple) who have known the applicant for 9 years as a friend. The friend is aware of the conviction against the applicant and states that they have spoken to him at length about the matter. The friend states that they know about the incident in relation to “smacking” of his son. The couple were friends of both the applicant and his second ex-wife, but they have only maintained a friendship with the applicant since the divorce. The author believes that the conviction and challenges arise from “capricious and impulsive behaviour exhibited by former spouses” which has far-reaching consequences. The author states that the applicant's children actively rely on and pursue a relationship with their father. Their five-year-old son runs to him every time he sees the applicant and the applicant is one of the few people who they allow to have babysit their child.

84. This statement carries limited weight. It is apparent that the couple are in the applicant’s camp and are advocating for his case. They have relied on information provided by him. First, the reference to the “smacking” incident is incorrect because the incident with the applicant's son involved the use of a belt, not smacking. Further, the opinion is expressed very strongly, describing the applicant’s former wives as “capricious and impulsive” without providing details to substantiate these claims. It is also unclear how the couple would have any knowledge about the behaviour of the applicant’s first wife when they have only known him for 9 years, long after his relationship with his first wife ceased.

85. The applicant provided statements from his youngest son who was the subject of the criminal charges. The statements were in handwriting and were dated 23 June 2021 and 16 December 2021. The first statement states that the son was pressured into making a statement and told he had no choice, he did not want the AVO and did not want to go to court to give evidence. He did not want to be a part of it. In the second statement, the son states that he gave a statement against his will. He further stated that the applicant has never ever slapped or belted him anywhere other than on his bottom and only after he had warned him several times. The son stated that he “deserved to be belted last year”, and it was only for discipline. He further states that he and his father resolved the issue by talking about it after. The son stated that the applicant did not want to belt him, and he hates it but he had no choice as the son was being extremely rude and disrespectful. After this they moved on and forgot about it and his mother, who was the only one who cared about it, brought it up with the police. The son stated that he found it very painful only being able to see his father twice a week. He enjoyed being with his father more than his mother and his mother is abusive and yells at him for no reason. He stated that he would only go to the court if he had a support person who was his other brother. We have some reservations about these statements which were provided by the son before the criminal trial. We outline these concerns later in our reasons.

86. The son also provided a reference dated 18 September 2024 for the applicant. He states that he is not aware of the exact details of why his father was rejected for a working with children's check clearance other than the “smacking” incident that occurred to him in 2020 and the ADVO incidents with his mother as well as something that happened with the applicant’s first wife. The son states that he currently lives with the applicant and has done so since the smacking incident was heard in court. According to the son, his father is a loving and caring father. He is not violent or abusive in any way. He looks after the son’s grandmother when she needs things and still helps his mother “even after everything she is done to hurt him”. He states that the applicant says he is sorry for the way things are, but the son does not consider that this is his fault as his mother was drinking alcohol and active acting abusively when they were a family. According to the son, the applicant will be impacted massively if the working with children check refusal is upheld as he will not be able to teach at TAFE. The son was 17 years old at the time of giving this statement.

87. The Tribunal was provided with statements from two of the applicant's children from his first marriage.

88. The first statement was from his oldest son who was 33 years old at the time of providing the statement. This son states that his father was very supportive and that when he decided to go to university his father was his biggest supporter. The son believes his father has taken concrete steps to address any underlying issues, including seeking counselling and committing to ongoing self-improvement. The son states that to the best of his knowledge this incident was isolated. He believes that the applicant is a man of strong moral character whose past should not define who he is today. He has had a positive influence on the family.

89. The youngest son from the first marriage is 32 years old. This son states that things were not easy at home when they were growing up because the children had to deal with a partner who was toxic and abusive struggling with alcoholism. It is unclear whether this son is referring to his mother or his father's second wife because this son would have been about 6 or 7 years old when his parents separated. The son notes that he had has worked alongside his father for 10 years in the construction business and that his father is always been there for he and his brother. The son also states that the allegations about his father do not reflect the person that he has known all his life, and the claims are simply not true or do not come close to representing the person who is. The applicant is described as the “most selfless person” that the son knows and who has proven that he is a man of integrity, kindness and strength.

90. The final reference is a reference from the applicant's nephew who states that he is known the applicant for 38 years and has worked with him as a boss for over 8 years. He notes that he was employed by the applicant as an apprentice carpenter when he was 17 and that the applicant demonstrated a high level of responsibility and dedication to his learning. He worked for the applicant around his family home for a period of time and he witnessed on many occasions verbal abuse of the applicant from the applicant's wife, presumably the second wife, over the years.

91. The weight to be given to the references by the applicant’s nephew and children is considered later in these reasons.

Evidence of Dr Thomas Dornan

99. The applicant provided a report from Dr Thomas Dornan dated 20 September 2024. Dr Dornan is a registered psychologist and a Doctor of Philosophy. He has been a registered psychologist in NSW since 2003 and has practised as a psychologist, initially in private practise and then with LSC Psychology from 2011 to the date of his report.

100. Dr Dornan prepared a psychological assessment report after interviewing the applicant for approximately two hours from his home through a remote telehealth application. The interview was semi structured, with psychometric testing and a review of documentation provided to him by the applicant, which Dr Dornan states forms the basis of his assessment. He records that he was provided with documents relating to the disqualifying offence, namely police fact sheets, a police record of interview, a statement by the applicant and a presentencing report. He was also provided with court documents relating to the criminal prosecution involving the applicant’s son, transcripts of hearings in relation to the local court proceedings relating to his son, the decision of the respondent to refuse the applicant’s working with children check, the NSW criminal history for the applicant dated 20 June 2024, redacted case notes for the applicant by Relationships Australia, copies of an ADVO dated 14 September 2013, extracts from Department of Community and Justice records relating to the applicant’s son and stepdaughter, audio extracts of a conversation between the applicant and his second ex-wife recorded in 2020 and 2024, correspondence to the NSW Attorney General and the Police Integrity Commission complaint, an extract of the indecency charges which were dismissed in relation to the first wife's younger brother, correspondence between Dr Kye McCarthy and the applicant, court transcripts of the local court proceedings involving an ADVO application made by the applicant’s first wife and the court transcript of the refusal of the ADVO in 2024.

101. Dr Dornan notes that the applicant's criminal history appears to have occurred within the context of his two main significant relationships which appeared to be acrimonious and resulted in number of AVO’s being taken at against the applicant. Dr Dornan also notes that there were charges for assault in his criminal history relating to the discipline of his son.

102. Dr Dornan recorded the issues relating to the applicant's childhood, noting that his father's absence was marked by his father's violence on his return to the family home. The applicant reported difficulties in his first long term relationship, noting that his then partner’s mental health slowly became worse because of abuse that she had sustained as a child. The applicant reportedly told Dr Dornan that he believed he may have been “too controlling” in his relationship with his first wife. The applicant also told Dr Dornan that it was during his relationship with his first wife that he was convicted of the disqualifying offence of indecent assault. The applicant told Dr Dornan that the relationship continued to be dysfunctional, and his partner took out a number of AVO’s against him in her attempt to control the situation. Despite this, the applicant also told Dr Dornan that he had a relatively amicable relationship with his first wife because he wished to continue to co-parent his children. He reported to Dr Dornan that he requested his ex-wife provide him with a reference in these proceedings and he did so via text message. As a result, his first ex-wife attempted to take out a further AVO against him.

103. The applicant reported this he entered into his second long term relationship when he was approximately 29 years old. He reported that his second wife had an increase in her problematic use of alcohol, causing more conflict in the relationship which eventually broke down in 2020. The applicant told Dr Dornan that his former partner began taking out a range of vexatious complaints against him, including making allegations of assault by the applicant against his then 13-year-old son. He reportedly told Dr Dornan that he believed his wife pursued the charges in relation to his son so that she could have him removed from the house. The applicant told Dr Dornan that his interactions with the criminal justice system had led him to make a complaint to the NSW Attorney General as well as a complaint to the Law Enforcement Conduct Commission. He stated that he had full recordings of conversations between him and his wife which would show that the complaints were vexatious. In relation to the disqualifying offence, the applicant told Dr Dornan that the context of the offences being committed is that his wife was intoxicated and he believed she was incapable of looking after herself. It was in these circumstances that he put her in the car.

104. This narrative is similar to the statement the applicant provided to police in 1996. The applicant denied sexually assaulting his partner at that time but acknowledged arguing with her and making a number of verbally abusive comments. According to Dr Dornan, the applicant told him that in reflecting on his behaviour he was aware that his behaviour during the offence was wrong, and he regretted behaving the way that he did. His behaviours or response to overwhelming emotional distress stemmed from feelings of betrayal, humiliation and powerlessness. Dr Dornan states the applicant was remorseful for his actions of physical and verbal interactions with his first wife, but he was clear that he did not sexually assault her.

105. Dr Dornan noted that behaviour of the applicant’s wives intensified the applicant’s sense of rejection and that, in this state, aggression can emerge as a way to reassert control and retaliate against perceived betrayal. Dr Dornan further noted that the fact the applicant had no prior history of violence suggested his aggressive outbursts may have been situational rather than a longstanding behavioural pattern. His admission of other behaviour also indicated some awareness and remorse for his actions. Dr Dornan accepted that the offence of indecent assault occurred because of the finding by the Magistrate and reported that the applicant's denial of that offence would be considered as a “cognitive distortion”.

106. In conducting the risk assessment, Dr Dornan opined that the applicant would represent a low likelihood of future sexual violence, noting (amongst other things) that there was no physical coercion present in the offending or escalation of sexual violence present in the offending. Dr Dornan noted that the applicant did not present with current problems resulting from child abuse and that he had no reported problems with self-awareness. He also concluded that the applicant had no reported problems with intimate relationships or with non-intimate relationships and did not present with problems with stress or coping. Dr Dornan acknowledged that there were problems with minimalization and denial of sexual violence but noted they were protective factors in that the applicant has a social support network and engages in pro-social leisure activities. In summary, Dr Dornan opined at [104] and [105] as follows

104.   Taking into account the aforementioned risk and protective factors, it is my assessment that [the applicant] poses an overall low risk of sexual recidivism. It is noted that his previous offending will mean that his risk rating will never drop below the low range. The only issue of note for him appears to be in his denial of the offences, which is consistent with his initial reports to police, with the applicant maintaining his innocence for the offence across the years.

105.   Specifically in considering [the applicant’] risk to children, research suggests that it is better to look at other risk factors that may indicate risk of harm to children, including the presence of sexual deviancy, indicators of instability such as psychopathology or unstable personality structure, poor interpersonal boundaries, and the presence of prior allegations.

107. Dr Dornan opined at [108] that on the psychological assessment undertaken for the applicant it was his opinion that the absence of clinical factors towards children indicated the absence of any appreciable risk of the applicant committing sexual offences involving children, or engaging in any other form of conduct posing a risk to children. Dr Dornan noted that the applicant’s prior criminal history reflects dysfunction in his relationships which indicates a risk of broader community and interpersonal dysfunction, rather than posing a risk to children. In summary, Dr Dornan opined at [109]:

[The applicant] is a 54-year-old man who was refused a WWCC after being convicted for an indecent assault against his former wife in 1996. He has a criminal record reflecting dysfunction within his relationships, which have contributed to the implementation of AVO’s, and convictions for breaching those orders. However, it is noted that many of those offences were either quashed, overturned on appeal, supporting [the applicant’s] explanation of his former partners making vexatious complaints. He does, however, have a conviction for assaulting his son which he reported as being physical discipline rather than assault, which would again reflect his poor capacity in functioning in his relationships at the time.

108. Dr Dornan further reported at [114]:

In relation to his offending history, [the applicant] reported that the majority of his offences occurred within the context of his relationships. He accused both of his former wives of making a number of vexatious complaints, which have led to various legal challenges and a number of those charges being quashed or dismissed. It is also within the context of his relationship, that the allegation of indecent assault occurred, although it is noted that there is no other history of sexualized behaviour for the applicant across the lifespan. There is, however, some indication of physical abuse, however the evidence in that abuse is contradictory.

109. In a subsequent report provided by Dr Dornan dated 11 December 2024, he clarified that his risk assessment considered the fact that the applicant was 26 years old the time of the offences and the offence occur 28 years ago, with there being no indication of any further sexually related offending. Dr Dornan opined it [6] and [7] as follows:

6.   I also considered that the majority of the applicants subsequent offending history occurred within the context of his relationships, as he suggested that his former wives made a number of vexatious complaints against him, which were ultimately quashed or dismissed. I also considered that there was some indication of physical abuse between the applicant at his wives, however, the evidence in that abuse was contradictory and weighted accordingly.

7.   Further, I considered that allegations that were made against the applicant which resulted in an investigation by DCJ and mandatory counselling to address possible “anger issues”, the various DCJ and court documents; and to a lesser extent, the written support provided by [the applicant’s] 17-year-old son [name omitted]. It was also noted that his son continued to live with him at present, with no indication of any current risks. Based on the assessment and materials provided there was no information to suggest that [the applicant] would present a broader risk of harm to children. Additionally, the assessment itself, did not reveal any potential risks to children by [the applicant] at present or that he would suggest that he would pose a risk to children in the future.

110. Dr Dornan stated that he had formed the opinion that there was no appreciable risk of the applicant in relation to previous or future sexual offending against children (refer at [8]).

111. Dr Dornan evidence on 6 March 2025. He was asked about the assessment made in paragraph 108 of his first report that the applicant did not pose a risk to children. Dr Dornan was asked how he came to this conclusion. He said that the conduct in relation to the applicant’s son needed to be considered in the context of the other issues he was going through in relation to his relationships at the time. He was under stress, and this led to the assault on his son. Despite this, Dr Dornan was of the view that this did not pose a risk to other children and was not an ongoing risk in relation to his son.

112. When asked what documents in evidence he considered, Dr Dornan stated that he had received the audio recording of the discussions between the applicant and his second wife, but he did not have regard to this audio recording. He reviewed the court documents that had been provided.

113. Dr Dornan was asked how he could be so confident in his assessment given the presence of stressors causing difficulties for the applicant. He said that if there were elements of misogyny against women and children, he would have expected impulsivity and therefore more interactions negative interactions. He was again asked how he could be so confident in his assessment. Dr Dornan said that his opinion was in the context of the applicant's first and second relationships. When asked about whether this could arise in the future, Dr Dornan said there was no evidence available to him that this would arise given the context of the previous offending. Dr Dornan was asked about his observation that the applicant had “cognitive distortion” and lacked insight. Dr Dornan accepted that had relied on the information provided to him by the applicant, referring to paragraph 114 of his report. In relation to paragraph six of his supplementary report, Dr Dornan stated that he had given weight to the abuse alleged but this weight was given in the context of the acrimonious relationships. Dr Dornan noted that the applicant was not in a relationship at this time.

Submissions

114. The applicant submits the Tribunal should make an enabling order. He relies on his assertion that many of the criminal charges against him were withdrawn or dismissed following a hearing or quashed on appeal. The charge in relation to his son was dealt with under to s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and no conviction was recorded. He submits that the evidence supports the contention that he does not pose a risk to the safety of the children. It is further submitted that, having regard to the evidence, the Tribunal should accept that the applicant satisfies both the reasonable person and public interest tests. The applicant relies on the evidence of Dr Dornan and the statements and references from his friends and family. He submits that it is very important for him to obtain a working with children check clearance so he can pursue an alternative career which is important given his existing incapacity to undertake physical work

114. In the written submissions, the respondent submits that the Tribunal should dismiss the application on the basis that the applicant poses a real and appreciable risk to the safety of children because of his history of criminal charges for an ongoing course of conduct amounting to domestic violence. It is further submitted that a reasonable person would not permit their child to have direct unsupervised contact with the applicant in the course of any child related employment and it is not in the public interest for the applicant to be granted a clearance. In oral submissions, the respondent submitted that the opinion of Dr Dornan was of limited assistance because the opinion was based on what he had been told by the applicant and on the material that he had been provided. It was further submitted that the tribunal should not be satisfied that the applicant satisfied the supplementary tests. A reasonable person would be aware of the various complaints to police where the applicant was not charged, all other charges laid and the details in relation to the physical offending against his son. It was submitted the reasonable person would not allow his or her child to have direct contact with the applicant or without supervision. It was also submitted that the public interest test should prevail over the private interests of the applicant in seeking alternative employment.

Consideration

Legal principles

116. This is an application for an enabling order under s 28(6). The Tribunal cannot make an enabling order unless satisfied that the applicant does not pose a risk to the safety of children. Before an order can be made, the applicant must first displace the presumption that he or she poses a risk to the safety of children. The presumption is imposed by s 28(7) of the WWC Act. Relevantly, the legislation imposes a more rigorous test for a person seeking a working with children check when the person has been convicted of a disqualifying offence, being those offences specified in Sch 2, cl 1. Many of the offences specified relate to children. However, many apply more broadly and can be characterised as serious criminal offences, such as murder and, relevant to the facts of this case, sexual abuse offences. As such, when an applicant is convicted of a sexual abuse related offence, from sexual touching through to the more serious sexual assault offences, these offences are disqualifying offences, regardless of whether they relate to children, and an applicant is automatically disqualified from obtaining a working with children check clearance.

117. As already noted, the risk to the safety of children must be a real and appreciable risk (s 5B). In other words, not remote or fanciful, and the risk must relate to “the safety of children”, as observed by Young CJ in Commissioner for Young People v V [2002] NSWSC 949; 56 NSWLR 476 in relation to earlier but similar legislation.

118. In BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523, Beech- Jones J (as he then was) considered the nature and scope of enabling orders and discussed the assessment of risks in the context of the WWC Act.

119. His Honour observed at [27] that under the structure of the WWC Act, the assessment of risk is “uncalibrated” noting that the relevant assessment of the risk does not takes into account any consideration of measures that may be taken to mitigate that risk. His Honour further noted that, in the circumstances of that case (where the plaintiff was seeking a working with children check clearance so he could continue to reside in his home as an authorised carer) the plaintiff was still subject to “the full gamut of assessment which is applicable to persons who seek to work in a child related area”.

120. The circumstances of BKE highlights the uncompromising nature of the assessment in the sense that the question of whether there is a “real and appreciable risk to the safety of children” is not assessed by reference to the circumstances of the person and the nature of the role or child related work they propose to undertake.

121. This is in contrast to the family law context, which was the subject of the High Court's decision in M v M [1988] HCA 68; (1988) 166 CLR 69, where the issue of risk in relation to custody disputes for children was being considered by the Court. His Honour noted the differences and observed at [33] as follows:

.. M v M contemplates finding the risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the appearance is not denied access. As I have observed, no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable risks” (V supra). Further, in cases such as this the onus is upon the plaintiff. However, subject to those two matters in the about caveat about the applicability of Briginshaw noted at 29, the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

122. The reference to Briginshaw is relevant to the standard of proof in matters such as this. In Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, the High Court made observations about the standard of proof to be applied in circumstances where a court or Tribunal was required to make a finding about the occurrence or existence of a fact where serious allegations are made with serious consequences. In brief, the High Court found that that a court or Tribunal must feel actual persuasion. The fact must be proven to the level of “reasonable satisfaction” and the decision-maker should not rely on “inexact proofs”. Beech- Jones J stated that it is that it was difficult to envisage how this standard would apply to a party seeking to disprove a negative assessment of the risk they posed to children in the future, however, he further stated that the Tribunal would “be well advised” to have regard to the principles if it was considering making a positive finding that an applicant sexually abused child in circumstances where they were not convicted of doing so.

123. In CXZ v Children’s Guardian [2020] NSWCA 338, the Court of Appeal (per Simpson AJA and McCallum JA) also agreed with the approach of Beech-Jones J in BKE, stating at [57] and [58]:

57.   ……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.

58.   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.

124. Having regard to the legal principles and these authorities, we have assessed the evidence before us at the time of the decision to form a view about whether the applicant poses a real and appreciable risk to the safety of children and, relevantly, whether the applicant has displaced the presumption of risk. We have not relied on inexact proofs, which is why we decided to reject the tender of the community services documents, but have given weight to the court documents and charges and the existence of previous convictions and complaints for the reasons outlined below.

125. In determining this application, the Tribunal must have regard to the factors in s 30(1). We set out our consideration of those matters below.

Mandatory considerations: s 30 of the WWC Act

The seriousness of the offences (s 30(1)(a))

126. Section 30(1(a) provides that the Tribunal should have regard to the seriousness of the offences with respect to which the person is disqualified or any matters that caused refusal of a clearance or imposition of an interim bar.

127. In this case, the applicant’s working with children check clearance was refused because he was a disqualified person, having been convicted of a disqualifying offence in 1996. The offence of indecent assault is a serious criminal offence with a maximum imprisonment period of five years. The applicant was also convicted of ADVO related offences. In this case, the applicant was not imprisoned and was sentenced to 200 hours community service. While we do not have the sentencing remarks of the court, it is apparent that the court considered the offending at the lower end of the scale. Despite this, the facts presented to the court, to which the applicant pleaded guilty but he now to seeks to dispute, demonstrates a level of physical and sexual violence in the applicant’s conduct.

128. The evidence of the applicant, the statements made by the applicant’s friends and family and even the report of Dr Dornan appear to minimise the seriousness of this conduct on the grounds that it was in the context of an acrimonious domestic relationship. Further, the applicant and some of the witnesses suggest that the blame lay with the applicant’s first wife. In our view, the seriousness of the applicant’s conduct is not diminished by the fact that it was in the context of an acrimonious domestic relationship between the applicant and his first wife. We are not persuaded by the evidence of the applicant that his first wife was at fault.

129. While we accept that it may be appropriate to assess the seriousness of criminal offending in the context of the circumstances of each case, we do not have the benefit of sentencing remarks. We rely on the evidence presented to the court, on which the convictions were based. The court did not impose a custodial sentence, but 200 hours of community service is still significant. We also rely on the applicant’s admissions of guilt to the court and his probation officer. The applicant pleaded guilty to the charges, which were the subject of the fact sheets presented to the Court. Notably, he is reported to have told the probation officer that he admitted he was violent to his wife during the marriage. He admitted the offences, stating that he was intoxicated at the time. Despite this the applicant now maintains his innocence in relation to the charge of indecent assault. It is difficult to reconcile the comments reportedly made by the applicant to his probation officer and his plea of guilty to an offence which, by its very description, connotes some level of sexual misconduct. This does not reflect well on the applicant and raises concerns about his insight and remorse. Even if we were to accept the applicant’s evidence, which is repeated by his older children, about the trauma experienced by his first wife giving rise to her drinking, this does not mitigate the conduct of the applicant who himself makes a plea for understanding relating to his conduct arising from childhood trauma.

130. In our view, the seriousness of this offence, but more particularly the applicant’s lack of insight, which is also relevant to the other mandatory considerations considered in more detail below, raises concerns about whether the applicant now poses a risk to the safety of children. This is relevant in the context of domestic violence offences which not only have an impact on the partner who is subject to the domestic violence but the children who may observe it from an early age and could be psychologically impacted by observing conflict which may be normalised in a domestic family setting.

Period of time since those offences occurred and the conduct of the person since they occurred (s 30(1)(b))

131. The alleged offences occurred at least 28 years ago in the context of an acrimonious domestic relationship with the applicant’s first wife. This is a long time and if there had been little or no offending by the applicant since this time, this would have been a consideration that would have counted significantly in the applicant's favour.

132. However, that is not the case.

133. Since August 1996, the applicant has been convicted of four further offences and has been found guilty of assault occasioning actual bodily harm against a child, being his youngest son. The applicant has appealed against a number of those convictions or findings of guilt. In each case, the District Court upheld the conviction or finding of guilt, although in some cases the sentence was reduced.

134. The criminal conviction in 1998 was for assault where it was alleged that the applicant hit the husband of his first wife's mother. While this may have been in the context of the acrimonious family relations between the applicant and his first wife, it does not excuse the use of violence, for which the applicant was convicted. The applicant not only defended the proceedings but appealed the conviction and sentence. The conviction was upheld. A person is entitled to take all appropriate legal action to defend criminal proceedings and, if they consider there to be error, lodge an appeal. However, this tends to suggest that the applicant lacked insight in relation to his criminal offending as he did not believe what he had done was wrong. This remains his review.

135. We accept that the applicant was charged with eight offences between 1989 and 2021 and that all of these charges were either withdrawn or dismissed by the court, one after hearing. It is nonetheless relevant that the majority of the charges laid related to assault or comment assault offences. In a number of the cases, the charges were dismissed because no evidence was presented. In addition, there have been multiple allegations made against the applicant in the period between 1995 and 2020. Two of the incidents relate to allegations of acts of violence made by the applicant’s ex-wives but there are three incidents that relate to third parties involving physical or verbal violence. The applicant was convicted of numerous offences on 15 December 1999 relating to the alleged contravention of numerous apprehended domestic violence orders and a conviction for common assault on 18 August 2010. The convictions were successfully quashed on appeal.

136. While we accept that in several cases the applicant’s convictions have been quashed on appeal and that the applicant has not been convicted and, in some cases, not charged with a number of the criminal offences outlined above, it is relevant that the applicant has now been the subject of multiple allegations of violence since at least 1989. The fact that the applicant has not been criminally charged or found guilty at the criminal standard does not alleviate our concerns about the frequency and nature of the allegations, the last being a recently as 2023. Having regard to the observations in BKE and CXZ, we cannot discount the possibility that there is some foundation to these allegations.

137. We have similar concerns in relation to the applicant’s extensive history of ADVOs in relation to his ex-wives. We do not accept the applicant’s evidence that all of these matters relate to “capricious and vexatious” claims and conduct by his ex-wives.

138. The finding of guilt in relation to the disciplinary action taken by the applicant against his son when he was 13 years old raises particular concerns. The disciplinary action was not “smacking” as described by the applicant on occasion and by a number of the witnesses. The applicant hit his son with a belt. There is a reference in the decision to resulting welts from the use of the belt. The applicant's explanation for this was that he had somehow been provoked by the conduct of his second wife and her dismissive attitude which made him particularly sensitive to his son repeating this dismissive attitude. This raises an apprehension about the applicant’s ability to control his anger and feelings, which may relate to the abuse when he was young but nonetheless raises concerns about whether the applicant can ameliorate the risk or control his feelings and anger.

139. Of further concern is, firstly, his son's evidence that he “deserved” what happened and, secondly, the fact the applicant was attempting to justify the action as lawful parental correction, long after the hearing. It is also relevant that the applicant’s remorse was expressed to be in the context of the seriousness of the consequences, primarily to himself and rather than to his son. The applicant did concede under cross examination that he accepted there may have been psychological harm to his son and that he had reflected more generally on this. This is encouraging, but we are not satisfied that the applicant has yet embraced the seriousness of his conduct in disciplining a child.

140. This consideration weighs strongly in favour of concerns that the applicant poses a risk to the safety of children.

The age of the applicant at the time the offences occurred, his age now, the age of the victim, the age difference and any evidence about the vulnerability of the victim (ss 30(1)(c) to (g))

141. The applicant was 25 years old when the disqualifying offence occurred. He is now 55. We accept that the applicant was young when the offences for which he was convicted occurred and that he is now far more mature. These considerations count in his favour. Against this, his ex-wife, who was a similar age to him, had mental health issues and trauma which led to her drinking. The applicant was aware of this and was aware of her vulnerabilities, yet dealt with the issue, on his own admission, by using controlling behaviour. While it is to the applicant’s credit that he now appears to recognise this was a potential issue, he continues to characterise his behaviour to his first wife, and indeed to his second wife, as a justifiable reaction to their conduct and issues.

142. Overall, these considerations tend to suggest that there are continuing concerns about the applicant’s risk in dealing with anger and frustration, which not only relates to the general public population but is a risk to the safety of children. The risk arises in two ways. First, the risk of harm and therefore safety to children who may observe physical or verbal violence by the applicant. Secondly, the potential for the applicant to subject children to physical or verbal violence.

The seriousness of the applicant's criminal history and the conduct since the matters occurred (s 30(1)(h))

143. We have considered this in the context of ss 30(1)(a) and (b).

144. In our view, and for the reasons outlined above, the applicant’s criminal history raises serious concerns about risk to the safety of children.

Likelihood of repetition and impact on children of such repetition (s 30(1)(i))

145. The applicant has an extensive history of domestic violence. He also has a history of multiple charges and convictions for offences of violence over a period of 30 years. There could be a serious impact on children if this was repeated in front of children or perpetrated on children.

146. The applicant relies on the evidence of Dr Dornan to the effect that Dr Dornan does not consider that the applicant poses a risk to the safety of children.

147. In our view, there are limitations in relation to the evidence of Dr Dornan.

148. First, it is apparent from Dr Dornan’s report that he does not have all relevant material. For instance, he does not have the material relating to all of the alleged offending and conduct referred to in paragraphs 12 to 26 above. Secondly, his opinion is substantially based on a level of acceptance of the narrative provided by the applicant. Thirdly, his opinion is based on a two-hour interview with the applicant and a review of documentary the material. There has not been any follow up or more lengthy consultations Thirdly, Dr Dornan focuses on the risk of future sexual violence, not violence more generally or violence in relation to the safety of children. Fourthly, while accepting there has been domestic violence and dysfunctional relationships between the applicant and his ex-wives, he does not opine about the impact of observing domestic violence and dysfunctional relationships on children. Fifthly, Dr Dornan appears to accept the contention that the fact that a number of offences were the quashed, dismissed or overturned on appeal support the applicant’s explanation that his former partners had made vexatious complaints. There can be a number of reasons why a charge is dismissed or a conviction overturned on appeal, yet Dr Dornan has not examined the detail of these matters and seems to have made the assumption that the reason for this was that the complaints were vexatious. This conclusion cannot be substantiated.

149. Having regard to these limitations, we are not satisfied that the opinion of Dr Dornan displaces the presumption that the applicant poses a risk to the safety of children. Relevantly, we cannot be satisfied that the conduct which has been the subject of previous criminal offending would not be repeated.

150. In this regard, we note that the applicant has not availed himself of extended and ongoing counselling about the trauma in his childhood which may have led to anger management issues and his controlling behaviour. He stopped attending Relationships Australia because he felt confronted by the fact that counsellors were asking him to take responsibility, as opposed to his former wives. While we accept that he did seek help from Dr Kye McCarthy, the counselling that he received was limited to eight sessions and, while he says that he seeks guidance from others in his church, there is evidence that he has not sought professional counselling since February 2023.

Any order of a court or Tribunal that is enforce in relation to the applicant (s 30(1)(i1))

151. There is no current order in place and, as such, this is a neutral factor in assessing risk.

Any information given by the applicant in relation to the application (s 30(1)(j))

152. The applicant provided evidence in support of his application, which we have carefully considered and is outlined above.

153. For the reasons previously outlined, this evidence does not persuade us that the applicant does not pose a risk to the safety of children, and we give this evidence limited weight. This includes the evidence of Dr Dornan.

154. The evidence of the applicant’s three children reveal that they are strong advocates for their father. This evidence, particularly in relation to the two older children, is strongly in the applicant's favour in the assessment of risk. However, their parents separated over 25 years ago when they were very young and they may not have observed the conflict. This qualifies their evidence to a degree.

155. We have concerns in relation to the strong advocacy of the applicant’s youngest son who, on all accounts, reluctantly gave evidence against his father in the criminal proceedings in December 2021. At this time, the applicant's son had just turned 14. A child who is asked to give evidence against a parent is in an invidious position and it is possible that the child may be too young to understand the implications of giving evidence but, more relevantly, the nature of the conduct which was the subject of the charges. It is apparent from the son's statement that he feels guilty in giving evidence against his father. He states that he was deserving of the punishment, being punishment with a belt that caused welts. This is disturbing, although we note that we do not have the benefit of any independent evidence about the applicant’s youngest son, nor was he tested in relation to this evidence. We therefore take this evidence on “face value” but give it limited weight given the age of the son at the time he completed the statement and the possible circumstances surrounding its preparation.

156. The applicant provided further information to the Tribunal, being his complaints to the Attorney General and the LECC.

157. This information does not assist the applicant and not only raises apprehension about the applicant’s lack of remorse and insight but is contradicted by the documentary evidence provided by the respondent. The facts contained in the criminal records, charges, transcripts and judgments by Magistrates and District Court judges diverge significantly from the complaints made by the applicant in his letters. For instance, the applicant states that his spouses have struggled with alcohol abuse and exhibited physically and emotionally abusive behaviour. However, it is reported in the pre-sentence report dated 1 August 1996 that the applicant admitted he was violent during his marriage to his first wife, and he was intoxicated at the time of the offending.

158. In his evidence before the Tribunal, the applicant states that he agrees he may have done things differently in relation to disciplining his youngest son but in his letter to the Attorney General the applicant vigorously denies the finding that using his belt was not lawful parental correction. The applicant, over several paragraphs, states that the Magistrate misapplied the law. The inconsistency between the applicant’s correspondence and what he said when he gave evidence to the Tribunal raises concerns about the credibility of this aspect of his evidence.

Information obtained in relation to s 36A (s 30(1)(j1))

159. There is no evidence of information obtained by the respondent pursuant to the information sharing provisions of the WWC Act.

Any other matters the respondent considers necessary (s 30(1)(k))

160. This is a general catch-all consideration, which has already been encompassed by the evidence provided by the respondent which is contended to be relevant to a number of the other considerations.

161. We also note that the respondent sought to rely on risk of significant harm reports from the Department of Community and Justice. For the reasons above we rejected the tender of those reports.

Overall assessment of risk

162. Having regard to the matters outlined above, we are not satisfied that the applicant has displaced the presumption that he poses a risk to the safety of children.

163. In summary, the applicant has been convicted of a numerous serious offences involving violence and has been the subject of numerous ADVO's, criminal charges and complaints to police. The applicant has appealed a number of those convictions and sentences, which have substantially been upheld. However, the applicant continues to deny fault, blaming vexatious complaints being made by his ex-wives. He asserts that both have alcohol problems, and one has trauma. Yet it is apparent that he has, particularly in the past, also suffered from childhood trauma and alcohol abuse on occasion. The applicant does not appear to recognise these issues or have insight and has not sought professional assistance, other than limited assistance from Dr McCarthy. The applicant maintains his denials, and this is well documented in his letters of complaint to the Attorney General and the LECC and, in part, to the information he provided to Dr Dornan. It is also relevant to note that the applicant has been convicted of offences of violence involving persons other than his ex-wives, namely his son, a relative of his first ex-wife and there have been numerous complaints to the NSW police involving third parties which have not been the subject of charges.

Conclusion and orders

164. For the reasons set out above, we make the following order:

1. The Tribunal dismisses the application for an enabling order.

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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: 05 September 2025