FWJ v Children's Guardian - [2024] NSWCATAD 184

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FWJ v Children’s Guardian [2024] NSWCATAD 184
Hearing dates: 8 and 9 February 2024
Date of orders: 05 July 2024
Decision date: 05 July 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Starke, Senior Member
J Herberte, General Member
Decision:
The decision of the Children’s Guardian dated 18 May 2023 to refuse to grant the applicant a working with children check clearance is affirmed.

Catchwords:
ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — Risk assessment triggered by Schedule 1 matter where the applicant was convicted in 2009 of an offence under s 228 of the Children and Young Persons (Care and Protection) Act 1998 (Neglect of child) after being implicated in the death of a 3 year old child in 2004 — Risk assessment also conducted due to seriousness of applicant’s repeated domestic violence offences against several intimate partners including incidents where children were exposed to the applicant’s violence and repeated breaches of Apprehended Domestic Violence Orders — Applicant recently convicted in 2022 for further domestic violence offence of assault occasioning actual bodily harm under s 59(1) of Crimes Act 1900 and sentenced to a Community Correction Order for 18 months expiring approximately 3 months beyond the date of hearing — Whether the applicant poses a risk to the safety of children.

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
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 (Domestic and Personal Violence) Act 2007
Crimes Act 1900 (NSW)

Cases Cited:
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BFX v Children’s Guardian [2014] NSWCATAD 115
BHY v Children’s Guardian [2015] NSWCATAD 91
BKE v Office of Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw (1938) 60 CLR 336
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v BQJ [2016] NSWSC 869
Commission for Children and Young People v V [2002] NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 111
Commissioner for Children and Young People v IK [2005] NSWSC 1136
CRG v Children’s Guardian [2017] NSWCATAD 295
CTE v Children’s Guardian [2018] NSWCATAD 28
CXZ v Children’s Guardian [2020] NSWCA 338
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
DAI v Children’s Guardian [2017] NSWCATAD 308
Dennett & Santis [2021] FCCA 1584
Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60
DYH v Public Guardian [2021] NSWCATAD 136
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162
McDonald v Guardianship and Administration Board [1993] VR 521
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Smith v Commissioner of Police [2014] NSWCATAD 184
Tilley v Children’s Guardian [2017] NSWCA 174
VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789
YG & GG v Minister for Community Services [2002] NSWCA 247
ZZ v Secretary, Department of Justice [2013] VSC 267

Texts Cited:
None cited

Category: Principal judgment
Parties: FWJ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
P Lin (Applicant)
G Bromwich, Solicitor Advocate, Crown Solicitor (Respondent)
Solicitors:
Fidelis Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2023/00198256
Publication restriction:
With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings is prohibited. This order was made on 6 July 2023 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

Overview

In this case the applicant sought administrative review under s 27(1) of the Child Protection (Working with Children) Act 2012 (NSW) (‘the Act’) of the decision of the Children’s Guardian made on 18 May 2023 to refuse to grant a working with children check clearance to him on the grounds that he poses a risk to the safety of children (‘the Refusal Decision’).
The respondent had previously approved the applicant for a clearance on 18 March 2015. The applicant applied for a renewal of his clearance on 13 March 2020. In the course of considering that renewal application, the respondent became aware of some aspects of the applicant’s criminal history insofar as it included convictions for the offences of assault, domestic violence, and contraventions of Apprehended Domestic Violence Orders (‘ADVOs’). The respondent determined that a risk assessment pursuant to s 15(3) of the Act was required, and advised the applicant accordingly on 21 April 2020.
Subsequently, on 3 May 2022, an internal team discussion within the office of the Children’s Guardian recommended that further information be sought from the Department of Communities and Justice (‘DCJ’) to clarify whether there were any concerns regarding the applicant’s children. Enquiries of DCJ revealed details of a coronial inquest into the death (in October 2004) of a child who had been in the care of the applicant at the time (‘Child A’). Whilst the cause of death of Child A could not be determined, the coroner was satisfied on the basis of the overwhelming medical evidence that the applicant had abused the child.
The enquiries made of DCJ further revealed that the applicant had subsequently been convicted of neglect of Child A pursuant to s 228 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘the Care Act’) and was fined $4,000.00. An offence under s 228 of the Care Act triggers a risk assessment pursuant to Schedule 1(1)(3)(c) of the Act (‘the Trigger Offence’).
The applicant was advised on 17 June 2022 that he was subject to an Interim Bar because the information before the Children’s Guardian indicated that he likely posed a risk to the safety of children.
In the course of undertaking a risk assessment, the respondent received notice on 28 August 2022 that the applicant had been charged with Assault Occasioning Actual Bodily Harm against his wife. The applicant pleaded guilty to the charge and was convicted in the Local Court proceedings on 21 November 2022. He was sentenced to a Community Correction Order for a period of 18 months, expiring on 20 May 2024 (around 3 months after the hearing date of the current application before this Tribunal). An ADVO was made on 21 November 2022 for the protection of the applicant’s wife for a period of two years (and thus, at the date of this Decision, was still current).
After completing its risk assessment, the respondent advised the applicant on 23 December 2022 that it was proposed that his application for clearance would be refused. The applicant was invited to submit further information in support of his application and did so on 20 February 2023, together with supporting documents including a statement from his wife.
On 18 May 2023, the respondent informed the applicant that he had been refused a clearance. His application for administrative review dated 12 June 2023 was filed on 21 June 2023.
In support of his application for administrative review, the applicant argued that he should be given a clearance because of the passage of time since the death of Child A in 2004 and the public interest benefit that would be derived from the applicant’s commitment to the indigenous community by pursuing a career in social work focused on that particular disadvantaged community group.
The applicant sought orders that the Tribunal set aside the Refusal Decision and direct the Children’s Guardian to issue him with a clearance.
The respondent maintained its position, arguing that the applicant posed a real and appreciable risk to the safety of children, and sought orders to have the Refusal Decision affirmed.
On the evidence before us, we have decided that the correct and preferable decision is to affirm the Refusal Decision. Our reasons follow.

Prohibition order

Due to the sensitive nature of these proceedings and to protect against the identity of the applicant and any alleged victim being disclosed, an order was made on 6 July 2023 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’) that the publication or broadcast of the name of any person mentioned in these proceedings (except for expert witnesses and officers of government agencies) is prohibited. To further protect against the identity of the applicant and any alleged victim being disclosed, these Reasons do not identify geographic locations or the names of the applicant’s employers, and refer to court proceedings in general terms.

Material and evidence before the Tribunal

The following material was filed on behalf of the applicant:

A bundle of documents filed on 29 September 2023 including:

a statement dated 27 September 2023 from the applicant;

a statement dated 3 September 2023 from LG in support of the application;

a letter dated 6 September 2023 from MC, a psychologist who provided counselling to the applicant (‘Treating Psychologist’);

an undated letter of support from EM, a friend of the applicant;

a statement dated 26 September 2023 in support of the application from NC, a former work colleague of the applicant;

a statement dated 28 September 2023 in support of the application from NM, a former student who was taught by the applicant;

(altogether, marked for identification as “Exhibit A1”).

A further bundle of documents filed on 23 October 2023 including:

a statement dated 7 September 2023 in support of the application from EW, a friend of the applicant;

a statement dated 25 September 2023 from EM, replacing the document in the bundle marked “A1” and referred to at 14(1)(d) above;

(together, marked for identification as “Exhibit A2”).
a report dated 5 November 2023 prepared by Ms Jodhi Kirk, a senior social worker, tendered as an expert’s report (marked for identification as “Exhibit A3”);
an additional statement dated 11 December 2023 from the applicant (marked for identification as “Exhibit A4”);
a further additional statement dated 1 February 2024 from the applicant (marked for identification as “Exhibit A5”);
a further letter of support dated 7 February 2024 from Ms EM (marked for identification as “Exhibit A6”);
an additional statement dated 7 February 2024 from NC (marked for identification as “Exhibit A7”);
a document headed “Outline of Expected Evidence of [the applicant’s wife]” dated 7 February 2024 and tendered as an aide memoire (marked for identification as “Exhibit A8”);
submissions dated 11 December 2023 (not marked);
reply submissions dated 7 February 2024 (not marked).

The following material was filed on behalf of the respondent:

a bundle of documents filed on 21 July 2023 pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (marked for identification as “Exhibit R1”);

further bundle of documents filed on 11 August 2023 (marked for identification as “Exhibit R2”);

supplementary bundle of documents filed on 18 August 2023 (marked for identification as “Exhibit R3”);

evidence in reply bundle of documents filed on 30 November 2023 (marked for identification as “Exhibit R4”);

submissions dated 16 January 2024 (not marked).

Oral evidence

The applicant, NC, Ms Kirk, EW and the applicant’s wife each gave oral evidence and were cross-examined during the hearing.

Expert opinion filed in these proceedings

In support of his application, the applicant relied upon a report of Jhodi Kirk, a Senior Social Worker. Ms Kirk was asked to give her opinion on whether the applicant poses a risk to the safety of children in child-related work.
Ms Kirk’s expertise as a Senior Social Worker, is in the field of mental health, undertaking risk assessments to ascertain if a person is safe from harm to self and others.
Ms Kirk’s report dated 5 November 2023 (‘the Kirk Report’) concluded that the applicant takes full responsibility for his past behaviour and “is no longer a threat to any child in his care”.
During cross-examination, Ms Kirk expanded upon and clarified her report which is discussed in more detail under “Consideration”.

Issue for the Tribunal’s determination

On the fundamental issue, i.e. whether the applicant poses a risk to the safety of children, the Tribunal must determine what the “correct and preferable” decision is: s 63(1) of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”).
For the purpose of determining an application for administrative review, the Tribunal exercises all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (in this case, the Children’s Guardian): s 63(2) of the ADR Act
However, in exercising those functions, the Tribunal must not simply “stand in the shoes” of an administrator. The Tribunal does not conduct a review of the Refusal Decision. The Tribunal reviews the application for clearance ‘de novo’ (meaning ‘afresh’ or ‘again’). As explained in DYH v Public Guardian [2021] NSWCATAD 136 at [21], the Tribunal must conduct its review without any presumption as to the correctness of an administrator’s decision:

“The effect of these two subsections is sometimes characterised as the Tribunal being required to “stand in the shoes” of the administrator who made the decision. But that is not entirely accurate. I must conduct this review without any presumption as to the correctness of the decision: McDonald v Guardianship and Administration Board [1993] VR 521 at [530] and I am required to decide what the correct and preferable decision is having regard to the material before me. It is clear that that may include material which postdates the making of the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 (‘YG’) at [25], Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 at 77.”

The Tribunal has regard to the material before it, including material that may not have been before the Children’s Guardian, and the applicable law: YG at [25], per Hodgson JA (with whom Foster and Brownie A-JJA agreed); applied in BHY v Children’s Guardian [2015] NSWCATAD 91 at [14].

What orders the Tribunal can make

The Tribunal may make orders that include an order to affirm the Refusal Decision or vary it, or set it aside and make a decision in substitution, or set it aside and remit the matter to the respondent for reconsideration: s 63(3) of the ADR Act.

No presumption that the applicant poses a risk to the safety of children

In undertaking this administrative review, there is no presumption that the applicant poses a risk to the safety of children. Neither party bears the onus of proof.

Full disclosure of relevant matters is required

However, the applicant has a statutory obligation under s 27(4) of the Act to fully disclose to the Tribunal any matters relevant to the application.
During the course of being cross-examined, the applicant was advised by his legal representatives of the effect of a certificate under s 28 of the Evidence Act 1995 (NSW) being issued. The Tribunal then proceeded to issue a s 28 certificate.

Reasons for seeking a WWC clearance

The applicant describes himself professionally as a social worker, working with vulnerable people and especially Aboriginal people. He aspires to find a job as a social worker or a similar role (as a counsellor, support worker or mental health trainer) in both the social work and education sectors. He also hopes to continue working within the health domain, supporting First Nation individuals and families.
His further submissions dated 20 February 2023 addressed to the Children’s Guardian set out his work and volunteer coaching aspirations that require a working with children check clearance. He hopes to coach children in sport including rugby league and surfing activities.

Key arguments submitted for the applicant’s case

In submissions made on behalf of the applicant, the arguments relied upon were in essence: (1) the lapse of time since the events of 2004; and (2) the public interest benefit to be gained given the applicant’s considerable contribution to communities for around 20 years.

Lapse of time

It was submitted that given the amount of time that has elapsed since the events of 2004, it is unlikely that the conduct will be repeated in the future because that conduct has not been repeated and the applicant has demonstrated that he is capable of reforming and being a productive member of the community.
Specifically with respect to the death of Child A in 2004, it was asserted that:

20 years is a significant period of time;

the applicant has consistently maintained his denial that he abused the child;

the suggestion that the applicant abused the child is inconsistent with reports that the applicant has worked well with children over the last 20 years and inconsistent with references about his good character.

As to the events involving the applicant’s conviction for assault, property damage and breach of an ADVO in 2004, it was submitted that the applicant has shown remorse and, given the amount of time that has elapsed and his asserted good conduct in front of children in the intervening period, he is unlikely to re-offend in the same manner.

Public interest

The submissions for the applicant argue that the public interest favours granting clearance to him because his commitment to social work, and especially to the Indigenous community, is an asset for the community.
The material before this Tribunal provides substantial detail around the applicant’s academic achievements, work experience and continuous volunteering efforts across 25 years. It was submitted that this long-standing commitment to community demonstrates the applicant is a person who is an asset to the community.

Vicarious trauma and relationship with alcohol

It was submitted that the applicant’s work as a Redress Counsellor caused him to experience vicarious trauma, triggering him to reflect upon his own experience of childhood sexual abuse and inter-generational trauma. In a misguided decision, he resorted to alcohol as a way of self-medicating.
It was asserted that the applicant’s vicarious trauma and alcohol abuse contributed to his breakdown and the assault of his wife in August 2022.
It was contended on behalf of the applicant that since the assault of his wife in August 2022, he has shown remorse and has reformed.
The submissions rely upon the opinion in the Kirk Report and a letter of support dated 6 September 2023 from MC, the applicant’s Treating Psychologist, to argue that the incident in August 2022 is unlikely to be repeated because the applicant’s underlying problems have been addressed and he has maintained improved mental health and avoided alcohol since 31 November 2022.
Submissions were made that the applicant’s alcohol abuse relates mainly to the events of August to October 2022. It was argued that the label “history of alcohol abuse” unfairly amplifies the frequency of his alcohol use, unnecessarily casts a shadow over his character, and overlooks the absence of a recurring issue with alcohol in the greater context of his life.
In light of those submissions, we have considered in some detail the volume of reports about the applicant’s psychiatric and psychological history, and his relationship with alcohol.

Incidents of domestic and family violence

It was submitted that the applicant’s record comprises, in essence, an assault in 1996, an assault 8 years later and an assault almost 20 years later, with text message incidents which do not rise to the same level of violence.

It was asserted that labelling the applicant’s behaviour as a “pattern of domestic and family violence” unfairly amplifies the perception of his conduct, suggests a degree of violence that overshadows the specifics of each incident and disregards the strides he has made in self-improvement.

Rehabilitation and contribution to community

Submissions on behalf of the applicant emphasised the two decades of his self-improvement and positive contributions to community, including in environments involving children, with lay witness evidence of the applicant’s conduct and character.

Arguments concerning punishment

It was asserted that being denied clearance amounts to a disproportionate punishment because the applicant has expressed genuine remorse for his past conduct and been punished for his actions. Apart from being fined and sentenced to a good behaviour bond for the 2004 assault, and sentenced to a community correction order for the 2022 assault, he has suffered extra-curial punishment suffering the loss of his son as well as estrangement from some of his children.
Whilst we accept that the distress suffered by the applicant serves as a protective factor against the likelihood that he would engage in the same conduct again, arguments about punishment and whether it is disproportionate are not relevant to the assessment of risk under the Act. In any event, the jurisdiction of the Tribunal is protective, and not punitive.

The respondent’s case

The respondent’s case, generally summarised, was that the applicant poses a real and appreciable risk to the safety of children because:

the medical evidence is strongly indicative that Child A experienced physical abuse in the months leading to his death and on the day of his death, whilst in the care of the applicant, and the Coroner’s finding that the applicant abused the child is a serious matter;

the applicant was convicted of neglect of the child under s 228 of the Care Act, to which he pleaded guilty. This, also, is a serious matter;

the applicant’s history of domestic violence has been repeated across the full span of his criminal history and is a serious matter demonstrating he has not understood the impact of coercive control upon victims;

the applicant has sought to deflect responsibility onto different victims and has sought to minimise his conduct, demonstrating he does not have genuine insight into his conduct and has only superficially accepted responsibility for his offending;

the applicant’s lack of insight into his own behaviour may affect the way he engages in social work in the same areas where he has previously offended, and there is a risk that his involvement in that type of work may do more harm than good and place children at risk;

insufficient time has passed to demonstrate that he has successfully addressed his alcohol abuse.

The respondent also submitted that the Tribunal should not be satisfied that a reasonable parent, made aware of all the matters before the Tribunal, would allow their own child to have direct, unsupervised contact with the applicant.
The respondent submitted that it would not be in the public interest to grant the applicant a clearance having regard to his repeated domestic violence offending, his attempts to shift responsibility to other parties and his minimisation of his conduct.

Background

Family history

The applicant is 46 years of age and is of Aboriginal descent. His mother was a member of the Stolen Generation. The applicant identifies as the first generation of a member of the Stolen Generation, and has two siblings. His biological father left the family when the applicant was around 9 years of age.
The applicant had a disadvantaged upbringing and moved from place to place, frequently changing schools and requiring assistance from charities for the provision of clothing. To his credit, the applicant completed his Higher School Certificate in 1995 and excelled at sports, in particular, rugby league.
The applicant had a challenging childhood and suffered sexual abuse by an uncle which was not reported to the authorities.
The applicant experienced challenges within the family dynamics since his mother and her family were Aboriginal, and his father was ‘white’. He disclosed to MC, his Treating Psychologist, that despite his Aboriginal cultural heritage, he felt “disconnected”.

Significant intimate relationships

The timeline of the applicant’s significant intimate relationships is important for understanding the context in which his relevant criminal conduct and behaviour occurred.
He is the father of three older children (now aged 29, 26 and 21) from his first significant relationship with the biological mother of those children (“First Partner”). Their relationship lasted for around 9 years, from 1995 to early 2004.
Since 2004, the applicant has been in a long term relationship with the person he refers to as his wife (“Second Partner”). However, that relationship has been subject to periods of separation of varying lengths of time during those 20 years.
The applicant’s oral evidence was that he was in the relationship with his First Partner when he learned that he was the biological father of the Second Partner’s child (‘Child A’). As a result, the applicant moved in with his Second Partner in or around April 2004. His evidence was that he was living with his Second Partner and Child A during the working week, and on weekends he was with his First Partner and their three children. Under cross-examination, he said that he felt responsibility for Child A and he also needed to spend time with his family (and we understood this to mean his family with his First Partner).
Tragically, Child A died under very sad circumstances in October 2004, at the age of 3. The coronial inquest into the death of Child A (including the coroner’s findings against the applicant) is discussed in these Reasons.
The applicant and his wife separated in 2009, then rekindled their relationship before separating again in 2013 (noting that the applicant’s eldest child with his next partner was born in that year). The applicant and his wife subsequently resumed their relationship in 2018.
He is also the father of three younger children now aged 11, 10 and 8 (‘Child B’, ‘Child C’ and ‘Child D’), from his third significant relationship with another partner (“Third Partner”) starting in around September 2011 and ending in around September 2016.
In about July 2015, the applicant started another relationship with a person we refer to as “the Fourth Partner” who is the mother of another child now aged around 13 or 14 (‘Child E’). The applicant is not the biological father of that child. It appears that this ex-partner was pregnant with the applicant’s child but suffered a miscarriage at 8 weeks’ gestation. It would appear that, whilst the applicant was embarking on this new relationship, his previous Third Partner became pregnant with the applicant’s child who was born in December 2016 (Child D). The applicant’s relationship with the Fourth Partner came to an end in January 2017.

Education, training and employment history

The applicant’s education, training and complex employment history from 1995 is set out in various documents including his submission dated 21 April 2020 to the Children’s Guardian, his CV, his written statement dated 27 September 2023 and written submissions made on his behalf in proceedings before this Tribunal. There are some inconsistencies in dates and the descriptions of courses undertaken at tertiary level, however those inconsistencies are relatively minor and have no impact upon our assessment of the evidence overall. A summary of the applicant’s education, training and employment endeavours is set out in Schedule 1, with his more recent employment history described below.
The applicant has generally worked and studied contemporaneously, seeking to create career opportunities for himself.
One of the most significant periods in the applicant’s employment occurred from February 2022 to August 2022 when he was employed as a Redress Counsellor with an Aboriginal organisation offering counselling, guidance and support to individuals who had endured child sexual abuse within institutions. (For clarity, we note that the many references to “Address Counsellor” in documents before the Tribunal should refer to “Redress Counsellor”).
Shortly after being appointed as a Redress Counsellor, the applicant was accredited as an Instructor of the Aboriginal and Torres Strait Islander Mental Health First Aid Course. The 14-hour course was described as a course for providing initial help to a person who is developing a mental health problem or experiencing a mental health crisis. It covered such issues as cultural competence, cultural shame, recognising symptoms of depression, understanding the impact of traumatic events on a person, and suicidal thoughts and behaviour.
Also early into his role as a Redress Counsellor, from 29 March to 1 April 2022, the applicant receiving training in a 4-day Marumali Program. This program studied the history and effect of the Stolen Generations and the applicant said it gave him insight into his own lifestyle and how he was raised. Unfortunately, as set out in his statement dated 27 September 2023, the applicant appears to have been re-traumatised as a result:

“I self-reflected on the traumas experienced and how it filters through families.
However, I found that I experienced emotional challenges while taking this course because I identify as the first generation of a member of the stolen generation.”

The organisation that employed the applicant traces and reunites families, especially members of the Stolen Generation. His role involved reuniting family members who have been separated, and so it involved a lot of travelling and driving. He experienced secondary trauma, burnout and confronting personal struggles. In his statement dated 27 September 2023, he recounted the stress of the role:

“My role was to investigate, counsel and prepare documents and statements for people who had been sexually abused in institutions whilst under care of a church. These were historical sexual abuse cases.
I had over 40 clients and was working with both males and females throughout NSW over an 8 month period. Looking back, I was suffering from burnout and vicarious trauma. The life events I was learning from my clients were very serious and traumatic. Dealing with these events weighed heavily on me and affected my own mental health.”

The applicant was successfully interviewed in June 2023 for a role as a Social Worker, a role he aspired to as his “dream job”. In July 2023, he applied for a role as a Mental Health Support Worker with an Aboriginal medical service. Neither applications could be progressed because of his lack of clearance.
After being charged with assault of his wife on 27 August 2022, an event he did not remember following a session of heavy drinking on that day, the applicant ceased working as a Redress Counsellor.
In January 2023, he started work as a mature age apprentice electrician. However, his employer required the applicant to have a clearance in order to work on school contracts. In another employment opportunity as an apprentice electrician, the applicant encountered the same difficulty due to the work involving government contracts. He then obtained another electrical apprenticeship opportunity but his work was limited without having a clearance. The applicant ultimately resigned from his apprenticeship.
In late October or early November 2023, the applicant started working as a Bartender in a regional area of New South Wales, and remains employed in that role for around 10 to 15 hours per week.

Contributions to community sport

The applicant’s contributions to coaching children and young adults in sport, especially rugby league, are not insignificant. During the two decades after leaving high school, he coached teams (including under 12s, 13s, 15s and 16s) in various rugby league clubs across three Australian States, i.e. New South Wales, Queensland and Western Australia. He also volunteered as a surf lifesaver at a number of surf lifesaving clubs in New South Wales. We accept the submissions made on his behalf that the applicant has been a significant asset to the community through his passionate volunteering efforts over a period of around 25 years.

Psychological and psychiatric history & relationship with alcohol

Psychological history BEFORE the assault in August 2022

According to the applicant’s statement dated 27 September 2023, he had not ever sought any external help in terms of his mental well-being until engaging with the local community mental health team and MC (his Treating Psychologist) after assaulting his wife in August 2022 and a DUI charge against him for driving with a middle range PCA on 3 October 2022.
However, reports in April 2020, more than two years before the assault in August 2022, provide information on the applicant’s state of mental health at the time. The applicant was charged with posting a naked photograph of his wife on Facebook, and this resulted in the applicant being assessed by the NSW Department of Corrective Services (‘DCS’), and GO, a Clinical Psychologist.

NSW Department of Corrective Services, 9 April 2020

A DCS case note dated 9 April 2020 recorded that the applicant said he had not been drinking in the lead up to the alleged offence. The victim’s account to Police contradicted that, alleging that the applicant had had several beers before posting the photograph on Facebook. The applicant acknowledged by telephone that his behaviour was unacceptable and inappropriate, and said it was his intention to continue with a psychologist. A subsequent note dated 14 April 2020 recorded that the applicant was committed to attending weekly psychology sessions and had been prescribed anti-depressant medication.

Clinical Psychologist reference, April 2020

In his submission dated 21 April 2020 to the Children’s Guardian, the applicant disclosed that he was seeing a psychologist, to help him to not act on impulses. He also stated that he relied upon his culture to “ground” him in relation to connection and belonging.
He submitted a reference from GO dated 22 April 2020 to the Children’s Guardian. GO thought that the applicant was suffering an adjustment disorder with mixed anxiety and depressive symptoms. He said this was not a major mental illness but a reaction to high stress levels in his life associated with work, access to his children, the Family Court and university studies. Treatment focused on management of the applicant’s emotions, anxiety and irritability.

Psychological history AFTER the assault in August 2022

In the period immediately following the assault of his wife, the applicant saw a number of mental health practitioners and his history of alcohol use was noted in many reports.
He was referred to a psychiatrist for assessment. He also had a number of consultations and counselling sessions with MC and follow-up consultations with registered nurses in community mental health centres.
The material before the Tribunal also demonstrates a period of assessment by the DCS in connection with various charges against the applicant.

GP Mental Health Treatment Plan, 2 September 2022

In a Mental Health Treatment Plan dated 2 September 2022, the applicant’s GP (Dr YW) noted that the applicant was diagnosed with PTSD, Alcohol Misuse, anxiety/depression and situational stress. His treatment was to start taking an antidepressant, undertake psychotherapy and have Drug and Alcohol counselling.

Consultant Psychiatrist, 5 October 2022

In a report dated 5 October 2022, Dr HR, Consultant Psychiatrist, noted that the applicant had been charged with DUI on two recent occasions and had assaulted his wife in the context of another episode of intoxication.
The Consultant Psychiatrist diagnosed the applicant with alcohol dependence, some features of PTSD and Major Depressive Disorder. On the issue of the applicant’s relationship with alcohol, Dr HR stated:

“He drinks in a binge pattern, sometimes up to 20 or more beers per day. He is unable to stop after 1 or 2 and has substantial cravings in between.”

Dr HR treated the applicant with an antidepressant (Fluoxetine) and an “anti-craving” medication (Naltrexone) to reduce his risk of relapsing into alcohol use. He noted that the applicant would engage in AA and Drug and Alcohol Counselling with local services and a psychologist.
The Psychiatrist noted the applicant’s employment history, particularly with respect to his role in addiction and trauma counselling, and commented that the applicant was “insightful into his various conditions and keen to accept treatment”.

MC, Treating Psychologist - October/November 2022

Following a DUI charge against him for driving with a middle range PCA on 3 October 2022, the applicant saw MC on a range of dates in October and November 2022. MC’s notes record that the applicant was seeking abstinence and relapse prevention, having used alcohol “for years”.
On 13 October 2022, MC recorded that the applicant had been diagnosed with depression in his 20s, and with PTSD.
MC’s notes refer to predisposing and perpetuating factors. Those considered to be predisposing were that the applicant had been sexually abused as a child, and had developmental trauma and cultural confusion. The perpetuating factors were said to include “unresolved trauma” and “unresolved anger”. One of the priority factors was noted to be “risk of relapse”.
The notes also identify relevant protective factors, that the applicant is “motivated for change”, has “good insight” and is “treatment seeking”. Community Mental Health Reports, September to December 2022
At the same time that he attended consultations with MC, the applicant attended community mental health assessment consultations with registered nurses, either in community health centres or in a home setting, from early September until 11 November 2022.
The community mental health report noted the applicant had a history of suicidal ideation and had become overwhelmed with sadness related to his own trauma background during his work with Aboriginal services as a social worker. The report noted he had started consuming large volumes of alcohol and was binge drinking to blackout stage, at least 3-4 times a week, for around 10 months culminating in the assault on his wife. The report also noted the applicant had attempted to hang himself on 29 August 2022, and had researched on the internet how to make a noose, but was stopped by a phone call from a mate.
The applicant was described as an “impulsive person”, although it is not clear whether that was his self-reflection or an observation made. With respect to a rating as to his “dangerousness”, the report noted that in the then-present episode of illness, he was “unpredictable, impulsive, violent”. He was described as having questionable impulse control. In terms of his ability to cooperate, he was reported to be actively seeking treatment and was willing and able to cooperate. In a further note in the report (date unclear), the applicant expressed an interest in participating in an anger management program and referral to a drug and alcohol service.
In a further note in the report, the overall clinical impression was that the applicant suffered “aggression and anger when under the influence of alcohol leading to impulsivity and disinhibition in relationships”.
In around mid-September 2022, the report noted that the applicant had improved and was focussing on the future. He wanted a psychiatry report for court purposes and was scheduled to see the psychiatrist on 5 October 2022.
The nurse left a message for the applicant on 4 October 2022 to remind him of his appointment with the psychiatrist and received a text message in which the applicant said he had relapsed the day before. In a subsequent phone call, the applicant said that he was aware of the appointment, that he was struggling and thought he needed to be on Antabuse or something similar.

During a home visit on 7 October 2022, the applicant said he had commenced on Naltrexone (anti-craving medication) and recognised the importance of not having alcohol nearby and the influence it had had on events in his life over the years, particularly more recently. He said he had attended AA for the first time and intended to attend more. His risk of harm to self and others was assessed as being lower as at that date.
The applicant was seen again in his home on 12 October 2022 when he advised the nurse that the anti-depressant and Naltrexone were working well for him.
The last note in the community mental health report recorded on 11 November 2022 that the applicant was seen in his home. He was assessed as being more positive and his risk of harm to self and others remained at low. The community mental health discharge summary dated 21 December 2022 recorded diagnoses of alcohol dependence, major depression and PTSD symptoms, and noted that the applicant was seeing his Counsellor for EMDR.

Mental health assessment, Statewide Community & Court Liaison Service, 17 November 2022

A report dated 17 November 2022 addressed to the relevant Local Court Magistrate, was prepared by a Clinical Nurse Consultant (Mental Health) for the purpose of Court proceedings concerning the applicant’s assault on his wife in August 2022. The report was prepared in consultation with Dr ZZ, Consultant Forensic Psychiatrist and referenced the applicant’s local health medical records. The applicant’s childhood was described as dysfunctional and unhappy, and marred by domestic related violence between his parents, as well as poverty and poor parental supervision. The report noted that the applicant had experienced childhood sexual trauma that was never reported to authorities.
The report noted that the applicant had been referred to a community mental health service after he had expressed suicidal thoughts to hang himself shortly after the assault on his wife, and was engaged in two-weekly psychological counselling to address his mental health issues. He was said to have been diagnosed with Major Depressive Disorder and PTSD and that he met the criteria for Alcohol Use Disorder. The report stated that the applicant was attending regular psychiatric review and attached a copy of the report dated 5 October 2022 from Dr HR, Psychiatrist.
In terms of alcohol consumption, the applicant self-reported that he had commenced drinking alcohol in his teens on a social basis and had always been a social drinker up until twelve months previously when his consumption increased significantly. He admitted to regular binge drinking, with increased daily consumption. The report noted the applicant was attending a weekly community Drug and Alcohol service and Alcoholics Anonymous meetings to address his alcohol use.
The report noted that the applicant was continuing to experience mood variability and self-described his mood as “not good”. He did not display any irritability or psychomotor agitation during the consultation, and his thoughts were described as cohesive and sequential. The applicant denied any suicidal thoughts, plans or intent, and demonstrated good insight into the need for ongoing treatment and support in the community.
In terms of his ongoing treatment, the report noted that the applicant was not a mentally ill person under the NSW Mental Health Act 2007, but requires on-going psychiatric care and support in the community. The report stated that the applicant was suffering from:

“…. A mental health impairment with temporary or ongoing disturbance of thought, mood, volition, perception or memory and the disturbance is regarded as significant for clinical diagnostic purposes and the disturbance impairs the emotional wellbeing, judgment or behaviour of the person”.

Finally, the report stated that the applicant had agreed to comply with a proposed treatment plan including that he:

accept all care and direction of his GP (Dr YW) and remain compliant to his prescribed medications and/or changes made to his care;

attend all scheduled appointments with a psychologist as directed, with his next appointment being 28 November 2022 with Ms EL, psychologist (no report appeared in the material before the Tribunal);

attend scheduled appointments with the community mental health service, with his next psychiatric review being on 30 November 2022 (no report appeared in the material before the Tribunal);

continue to engage with Drug and Alcohol services and Alcoholics Anonymous meetings on a weekly basis.

NSW Department of Corrective Services, 9 December 2022

A case note report dated 9 December 2022 prepared by the DCS (in a different locality to the report noted in April 2020) concerned the applicant’s assault on his wife on 27 August 2022.
The DCS report stated that the applicant had disclosed that he had been “suspended from school on many occasions for fighting”. The applicant said he could not remember the assault on his wife and had been told about it the following day. He acknowledged that aggression is a problem for him. He also stated that he had had an alcohol problem in the past and had been binge drinking during the previous 12 months 3 days a week, Friday to Sunday, due to triggers at work. He said he had not consumed alcohol from 3 October 2022 to 9 December 2022. He also said he had been referred to Mr MC, his Counsellor, and that he was still engaged with community mental health services.
Three risk factors were identified, with goals and an intervention plan devised for each risk:

“Control impulse, switch off”, with the goal being “Control”, and the intervention plan involved EMDR and mindfulness;

“Alcohol”, with the goal being to “set limits, drink responsibly”, and the intervention plan involved gardening, breaking the drinking ritual, surfing, reaching out to AA supports;

“Violence”, the goal being “not let it happen again”, and intervention being counselling, strategies, communication, and emotional regulation.

A further comment on 20 February 2023 in the DCS records noted that the risk factors identified for the applicant were alcohol and domestic violence. The report noted that the applicant’s new employment as an apprentice electrician was a protective factor for him.

MC, Psychologist, Reports in April, August, September 2023

In a clinical note dated 27 April 2023, MC recorded that the applicant had disclosed that, on 5 days out of 7 and over a period of a “few months”, he consumed 10 standard drinks, and that his most recent use was the day before, i.e. 26 April 2023. He disclosed that he suffered childhood trauma and depression, and had a history of suicidal ideation. Nonetheless, the notes record that there were no mental health issues of immediate concern, the applicant was taking Avanza and had been referred to the Drug and Alcohol Team.
In a subsequent consultation on 4 August 2023, the applicant stated that the process of appealing the Guardian’s Refusal Decision had brought past experiences, emotions and memories to the surface, largely related to the death of his son (Child A).
Four days later, on 8 August 2023, the applicant disclosed that he had been experiencing cravings for alcohol, but had maintained abstinence. The notes stated “Reminded of the cognitive impact of alcohol in a time requiring cognitive attention for memory and documenting his perspective” in connection with his appeal of the Guardian’s decision.
A week later, on 15 August 2023, MC’s clinical notes record that he saw no overt signs of intoxication or withdrawal and the applicant self-reported that he had maintained abstinence.
In another record of consultation dated 29 August 2023, MC noted that the applicant’s alcohol consumption had historically been 1-2 cases daily but that he had ceased drinking “a few weeks ago” and was seeking “relapse prevention”. This record confirmed that the applicant had been sexually abused as a child by an uncle and that his work with survivors of child sexual abuse had been triggering for him.
In a reference dated 6 September 2023, MC stated that the applicant does not meet diagnostic criteria for alcohol use disorder but has alcohol cravings and “past problematic alcohol use”. The reference stated that the applicant had maintained his goals around alcohol, managing cravings appropriately.
MC noted that the applicant had received diagnoses of depression and complex PTSD in the past, with some symptoms re-emerging during periods of stress. He noted that the applicant had been attending weekly or fortnightly appointments since October 2022, with a focus on relapse prevention and support around stressors relating to employment, his finances and his appeal regarding his working with children check clearance.

Applicable legislation and legal principles

Protective jurisdiction of the Act

The protective jurisdiction of the Act is plainly evident from its stated object as set out in s 3:

3 Object of Act
The object of this Act is to protect children—
(a) by not permitting certain persons to engage in child-related work, and
(b) by requiring persons engaged in child-related work to have working with children check clearances.

Paramount consideration

The paramount consideration in the operation of the Act is set out in s 4:

4 Safety, welfare and well-being of children to be paramount consideration
The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

The Tribunal’s jurisdiction is protective, and not punitive

Having regard to that paramount consideration, the jurisdiction of the Tribunal under s 27 of the Act is protective, and not punitive, in nature: DAI v Children’s Guardian [2017] NSWCATAD 308 (‘DAI’) at [8]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 (‘AYU’) at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The object of the Act is not to impose additional punishment on a person such as the applicant, but to eliminate possible risks to children: CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 (‘CYY’) at [26].
The protective jurisdiction of the Act was emphasised in CXZ v Children’s Guardian [2020] NSWCA 338 (‘CXZ’) per Simpson AJA at [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.”

Definition of “children”, “child abuse” and the meaning of “risk to the safety of children”

“Children” is defined in s 5(1) of the Act to mean “persons under the age of 18 years”.
The words “child abuse” appearing in s 4 above are not defined in the Act. The Tribunal stated in BFX v Children’s Guardian [2014] NSWCATAD 115 at [29] that the words would be aptly described as “maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence”.
The meaning of “risk to the safety of children” is defined in s 5B of the Act to mean a “real and appreciable risk to the safety of children.” The meaning of the word ‘risk’ was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]:

“One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word ‘risk’ with the words that follow, namely ‘to the safety of children’…”

His Honour’s consideration of the meaning of risk was cited with approval in a number of cases before the Tribunal and the NSW Supreme Court: CTE v Children’s Guardian [2018] NSWCATAD 28 at [30]; BKE v Office of Children’s Guardian [2015] NSWSC 523 (‘BKE’) at [26] and AYU at [39]. Ultimately, the Tribunal must consider whether a clearance, if granted, will create a “real and not fanciful” risk to the safety of children: CXZ per Basten JA at [26].

Child-related work requires a WWCC clearance

Under s 8(1) of the Act, a worker must not engage in child-related work unless the worker holds a clearance. A worker who is subject to an interim bar must not engage in child-related work: s 8(2) of the Act.
Work that involves direct contact by a worker with a child or children and that contact is a usual part of and more than incidental to the work is defined as “child-related work” for the purposes of the Act: s 6(1) of the Act.
Since the applicant aspires to do social work in the education and/or health sectors, he requires a clearance.

Test to be satisfied that a person is not a risk to the safety of children

As noted previously, under s 18(2) of the Act, the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless satisfied that the person poses a risk to the safety of children.

Mandatory risk assessment triggered by Schedule 1 matters

A person is subject to an assessment requirement under the Act if any of the matters specified in Schedule 1 of the Act apply to the person: s 14 of the Act. Proceedings for an offence under s 228 of the Care Act is identified in Schedule 1(3) of the Act to be a matter that requires the Children’s Guardian to undertake a risk assessment.
The offence of neglect under s 228 of the Care Act is set out below:

228 Neglect of children and young persons
A person, whether or not the parent of the child or young person, who, without reasonable excuse, neglects to provide adequate and proper food, nursing, clothing, medical aid or lodging for a child or young person in his or her care, is guilty of an offence.
Maximum penalty—200 penalty units, or imprisonment for 2 years, or both.

In this matter, since the applicant was charged and convicted of the offence of neglect under s 228 of the Care Act with respect to Child A, it was necessary for the Children’s Guardian to undertake a risk assessment.
In making an assessment, the Children’s Guardian may consider the matters set out in s 15(4) of the Act. The Children’s Guardian does not limit its consideration to offences involving children because some offences or behaviours might have an impact on children in the community or home. This is clearly advised to applicants applying for clearance.
If the Children’s Guardian is not satisfied of risk based on the s 15(4) matters alone, the ‘reasonable person’ and ‘public interest’ tests set out in s 15(4A) of the Act must be considered:

(a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and
(b) it is in the public interest to make the determination.

If the person fails either the ‘reasonable person’ or the ‘public interest’ test, clearance will not be granted.

Mandatory matters for the Tribunal’s consideration under s 30(1) of the Act

In determining this application, the Tribunal must consider the matters set out in s 30(1) as set out below:

30 Determination of applications and other matters
(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.

Further considerations under s 30(1A) of the Act

In addition, if the Tribunal is considering making an order enabling an applicant to work with children, it must then consider the two-part test set out in s 30(1A) of the Act:

(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.

First limb of the two-part test under s 30(1A)(a) - the “reasonable person” test

The first limb of the two-part test is known as the “reasonable person” test. It requires the application of an objective standard based upon the views of the “reasonable person”. It assumes that the “reasonable person” is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children’s Guardian [2016] NSWCATAD 214 at [127]; CYY at [26].
The legislation in Victoria contains provisions similar to those in s 30(1A) of the Act. In VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 (‘VQB’) at [36], the Tribunal held that an objective test was called for by the legislation:

“… The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.”

The reasonable person approach taken in VQB was endorsed in NSW in CRG v Children’s Guardian [2017] NSWCATAD 295 at [85] and DAI at [90]. In DAI at [91], the Tribunal said:

“In order to properly consider this test, a ‘reasonable person’ would need to know about the disqualifying offence, the circumstances surrounding the offence, the applicant’s entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him.”

Second limb of the two-part test under s 30(1)(b) - the “public interest” test

The second limb of the two-part test is referred to as the “public interest” test. The notion of “public interest” was addressed by the High Court of Australia in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 in which French CJ, Gummow and Crennan JJ said at [20]:

“The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.”

Accordingly, in proceedings under the Child Protection (Working with Children) Act 2012, the “public interest” must be considered in light of the paramount purpose of the Act, namely, to ensure the protection of children from sexual or physical harm: s 4 of the Act.
When applying the public interest test, the Victorian Supreme Court has endorsed a broad and not a narrow approach: ZZ v Secretary Department of Justice [2013] VSC 267 (‘ZZ’) per Bell J at [205]. While emphasising the main purpose of the Victorian legislation (equivalent to the NSW legislation) is the protection of children from harm, the decision in ZZ at [202] also acknowledged the relevance and importance of rehabilitating offenders and their right to work. The private interests of an applicant such as their right to work in their chosen area of employment are also a factor to be taken into consideration insofar as those private interests also have a broader community benefit as per Bell J at [203]:

“In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others.”

The concept of public interest has been determined by the Tribunal on the basis of giving priority to the broad interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY at [75].
If the Tribunal is not satisfied that an applicant has met either of the first or second limbs in the two-part test, it is precluded from making an order enabling the applicant to work with children.

The approach to fact finding and the assessment of risk

In recognition of the protective jurisdiction of the Act and the paramount consideration being the safety, welfare and well-being of children, the Tribunal is bound to follow the decision in BKE at [33] when assessing risk:

“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.”

The approach to fact finding as explained in BKE at [33] has been approved by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 (Tilley) at [34]-[45] and in CXZ per Simpson AJA at [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. [emphasis in original] 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.”

Thus, relying upon the analysis in CXZ at [51], many cases will not lend themselves to definitive factual determination. Where an allegation is neither “well founded” nor “groundless”, the Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations, the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ at [53].
A positive finding by the Tribunal that alleged conduct has taken place will generally be determinative of an application: Office of the Children’s Guardian v CFW [2016] NSWSC 1406 (CFW) at [14]-[15], per Justice Harrison:

“The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has “no hesitation in rejecting the allegation as groundless”. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a “decisive impact” on the outcome of the application.
The second proposition is that, even if no such “positive finding” can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is “groundless”.”

In determining the application, the Tribunal is required to consider “the totality of the evidence”: BKE at [28] citing The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the “cumulative effect” of the matters before it: CYY at [69]-[71].

Civil standard of proof

The standard to which the Tribunal must be satisfied before making a positive finding in relation to an allegation is the civil standard, that is, on the balance of probabilities, and not the criminal standard: CFW at [14]-[17], subject to the need to have regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). The Briginshaw principle can broadly be described as a standard of satisfaction to be reached where serious allegations are concerned. Put simply, serious allegations with serious consequences require more compelling evidence for the decision maker to reach the necessary state of reasonable satisfaction that the facts in dispute are more likely than not to exist.

Consideration

Applying the civil standard of proof, this Tribunal examines allegations on the balance of probabilities, subject to having regard to the Briginshaw principle. In evaluating the evidence before us, it is not necessary to find that the offences or the alleged conduct occurred. It is sufficient to conclude that it is possible that the alleged conduct occurred before then proceeding to consider whether, based on the allegations, the applicant poses a risk to the safety of children.

Mandatory considerations in s 30(1)(a)-(k) of the Act

In determining the application, we are obliged to consider the evidence under each of the headings in s 30(1)(a)-(k) of the Act.

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: s 30(1)(a)

The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b)

Coronial Inquest into the death of Child A

The circumstances surrounding the death of Child A are plainly described by the Coroner who, despite being unable to say the manner and cause of death, found that the evidence was overwhelming that the applicant abused the child.
Child A had lived with the applicant’s wife and his maternal grandmother and her husband from his birth in January 2001 to April 2004. In April 2004, the applicant started living with his wife and Child A.
Two months later, on 24 June 2004, the child was admitted to hospital with a 3cm friction burn in the centre of his forehead, significant bruising to his left eye and the left side of his face, swelling to the back of his head and bleeding in his left eye. He also had rib fractures which, according to medical opinion, are usually associated with squeezing around the chest. The child’s treating paediatrician expressed the view that the injuries were life-threatening and that it was fortunate the child was not left with permanent deficits. A medical report dated 23 August 2004 concluded that the injuries were at the “severe end of the spectrum” and there was no explanation for the rib fractures.
According to her record of interview, the applicant’s wife had left for work at 8am on Tuesday, 22 June 2004 and left Child A in the care of the applicant. She called 5 or 6 times during the day to check on the child and during one of the calls the applicant said that the child had kicked a football, fell and hit his eye on the applicant’s knee while he was kneeling. Two days later, on Thursday, 24 June 2004, she went to work again and left the child in the care of the applicant. During one of her calls to check on the child, the applicant told her that the child had dived for the football and sustained a carpet burn to his forehead. Later that night, she and the applicant noticed a soft spot to the crown of the child’s head and, as a result, took him to hospital.
DOCS records noted that the child had been admitted to hospital with “multiple non-accidental injuries” and that “the mother’s explanation was not considered consistent with the injuries”. The child was assumed into the care of DOCS, and was subsequently discharged into the care of his maternal grandmother on 30 June 2004.
On 8 September 2004, the applicant and his wife agreed to undertakings that the child would not be left in the care of the applicant without another nominated person present for the ensuing 12 months.
On 26 October 2004, the child was again taken to hospital by the applicant and his wife, and was pronounced dead 40 minutes later. The child was observed to have extensive bruising to his face, purple discolouration on his left and right cheeks and forehead, blood that was not yet congealed at his mouth and nostrils, a red discolouration to his chest and a brown discolouration to his right forearm. The autopsy report opined that the pattern of injuries in totality was not that of an accident and there was “evidence of recent blunt force injury”, but the cause of death was not clear.
According to the applicant’s statement in proceedings before this Tribunal, his wife had been in the shower when the child had a tantrum. The applicant could see that the child’s lip was bleeding a little and his cheek looked a bit red, and he applied an ice pack to the child’s cheek. He stayed home to look after the child while his wife went to work. This was contrary to the undertakings they had made about not leaving the child alone with the applicant. He put the child in a shallow bath and stepped outside to hang washing. When he came back inside, the child was vomiting water. He assumed the child had swallowed some of the bath water and was spitting it out. According to the applicant, the child looked “fine”. He took him out of the bath, dried and dressed him, and watched TV with him. The applicant said that he had wrestled with the child who was laughing and appeared to not suffer any debilitation from what had happened earlier. He put the child to bed and checked on him every half hour or hour. When his wife came home at 4pm, they checked on him together and noticed the child was not breathing. They took him to hospital where the applicant and his wife were informed that the child had died.
The applicant’s evidence was that he did not hit or hurt or abuse the child. He said that it was traumatising enough to lose his child, and even more distressing that other people who were not present on the day say that he had abused his child. He said the loss has been devastating and heartbreaking for him and his wife.
The applicant stated that he had been trained as an ambulance officer and in his assessment the child did not exhibit symptoms that necessitated a trip to the emergency room.
The Coroner rejected the applicant’s account and had regard to the evidence of the applicant’s wife that when she came home the child was cold to touch. The Coroner rejected the applicant’s assertion that whilst the child was cold to touch his breathing was shallow and he still had a pulse. The Coroner was satisfied that the child was deceased at that time, and was satisfied that the child had been abused by the applicant both in June 2004 and on the day of his death.
The applicant did not agree with the Coroner’s findings. It is a matter of concern that the applicant recently told MC that he was not found guilty of any wrongdoing. In notes of his consultation with the applicant on 15 November 2022, MC recorded the following:

“He stated that there was a coronial inquiry, with [the applicant] being found not guilty of any wrongdoing. He stated that he only found out the male child existed 8 months prior to his death, at age 3. He stated that the mother of the child informed him of the child 2 years after he was born although he said it may be another males (sic) biological son also, however died without [the applicant] finding out.”

The applicant’s submission to the Children’s Guardian dated 20 February 2023, minimises his conduct by saying that he only received a fine and was not charged or convicted which is not true, and demonstrates he has not appreciated the seriousness of his conviction:

“[Child A] died in 2004 and at the time he was in my care. I previously was an Ambulance Officer and I thought he was okay. However, that was not the case and I was fined not charged or convicted to (sic) failure to receive medical attention.”

Under cross-examination when it was suggested to him that a big part of his case is to reflect on his conduct, the applicant became visibly impatient and responded that there are “two sides to every story”. He then added that there are three (and we understood he meant this to explain that he had his account of what had happened, his wife had her account of what had happened, and then there is the truth as to what had happened).

Tribunal’s finding

The applicant had training as an assistant nurse and a paramedic. He also had completed a course in Child Protection Abuse and Neglect in 2000. Based on the applicant’s own account of what he did with the child and what he observed about the child on 26 October 2004, we find that the applicant failed to act protectively towards him, with catastrophic consequences.
We accept the medical evidence and the Coroner’s summation of the circumstances surrounding the injuries sustained by the child. We find no reason to disagree with the Coroner’s finding that the applicant abused the child.
It is disconcerting that the applicant’s oral evidence in these proceedings inferred that neither he nor his wife had told the truth about the events surrounding the death of Child A. In our overall assessment of the risk that he poses to the safety of children, we place substantial weight on his statements that seek to minimise his conduct since they demonstrate he has not fully reflected upon the events and therefore has limited insight into his conduct.

Trigger Offence proceedings March 2009

On 17 June 2008, DCJ (formerly known as DOCS) brought a prosecution against the applicant under s 228 of the Care Act for the offence of neglect in failing to provide medical care to Child A or to obtain adequate medical care for him.
A Statement of Facts prepared on behalf of DCJ recorded information provided by an Uncle of the applicant’s wife 3 days after the child’s death that the applicant and his wife had decided not to take the child to the doctor after his tantrum because they feared that DOCS would intervene. The applicant’s First Partner is also reported to have told Police on 8 November 2004 that the applicant had told her that they did not take the child for medical treatment because they were frightened of DOCS. In his statement dated 1 February 2024 to the Tribunal, he rejected submissions made on behalf of the Children’s Guardian that he was concerned about DOCS becoming involved, saying it was not a true characterisation of his character and his past conduct. Yet, when giving his oral evidence to this Tribunal, and asked whether concerns about DOCS formed part of his mindset at the time, the applicant answered “possibly”, and said it had been a joint decision not to take the child to the doctor earlier than they did on 26 October 2004.
The applicant pleaded guilty and did not attend the hearing due to work commitments in Western Australia. In a letter to the Magistrate, he acknowledged that he had made a mistake to leave the child in the bath. He also stated that since the child’s death he had isolated himself from kids as he “did not want to hurt them”.
In March 2009, the applicant was convicted and received a fine of $4,000. His Honour made the following comments in sentencing:

“… we have an accused who was admitted into the initial training for the ambulance service. Now when he commenced he may not have lasted very long, but at least he met the prerequisites to enter such an occupation at that time, and I am assuming that he is a person of average intelligence who would be concerned about the welfare of a child who’s bleeding from the mouth has carpet burns and has these contusions to the head area, and in fact any injury to the head would ring alarm bells for the majority of people.
I find no merit in the submissions that he asked me to accept that he really didn’t think it was that bad. I am more inclined to accept the version that he also puts to the court he was concerned about DOCS becoming involved again and launching another inquiry. But in my opinion, notwithstanding anything that I have said, this comes towards the top end of the penalty which I can impose. In looking to reduce it I cannot reduce it because of his prior good character. He has matters of violence. I am not suggesting this is a matter of violence, but a matter of concern.”

His Honour expressed the view that the available penalties were “completely inadequate” and stated “I don’t resile that there should be provision for gaol in these matters”.
His Honour’s comments demonstrate the seriousness of the applicant’s offence.

Tribunal’s finding

We agree with his Honour’s finding and summation of the seriousness of the offence. We note that the absence of a custodial sentence was due to legislative limitations at the time and s 228 of the Care Act has since been amended such that the penalty now includes custodial sentences of up to two years.
In our overall assessment of the applicant’s risk, we place a substantial amount of weight on the seriousness of the Trigger Offence and that the applicant pleaded guilty and was convicted. We again place substantial weight on statements he has made that seek to minimise his conduct since they demonstrate he has limited insight into his conduct.

Domestic and family violence towards intimate partners and children

The applicant’s criminal record demonstrates a history of domestic and family violence with all four of his intimate partners and repeated contraventions of ADVOs. In the period from 1996 to 2022, the applicant had 15 protection orders made against him. One remains current, expiring on 20 November 2024, for the protection of his wife (Second Partner). Some children have been exposed to the applicant’s violence and have also been named on ADVOs as persons in need of protection against the applicant.

Under cross-examination in these proceedings, the applicant said that the altercation with his brother occurred after he saw his brother hurt the applicant’s son. He punched the brother after seeing him hit his son in his testacles. The applicant said he should have had his brother charged.

Tribunal’s Finding

Our concern is that the applicant’s violence, though provoked, was in the presence of his children who would have been frightened. The applicant made no acknowledgment that his children may have been emotionally and psychologically harmed as a result. We have given only a small amount of weight to this conduct.

Allegation of assault of Fourth Partner’s son July 2016

DCJ records refer to an allegation that the applicant assaulted the son of his Fourth Partner in July 2016 who “woke in the morning with a busted mouth and a busted nose”.
Under cross-examination in these proceedings, the applicant denied the allegation, saying it could not have been him because at the time he was living with his friend who lived some distance away.

Tribunal’s Finding

The allegation was made anonymously and was not corroborated or tested. We accept the applicant’s denial of the allegations. His evidence that he was living with his friend at the time was corroborated in NC’s statement dated 7 February 2024. We have given no weight to the allegation in the assessment of risk.

Allegation of death threat and assault of First Partner in 1999

DCJ records also contain a reference to allegations that the applicant broke his First Partner’s nose in 1999 made a death threat by telephone to his First Partner (date unclear).

Tribunal’s finding

Again, these allegations were made anonymously and are not corroborated or tested. On the material before us, the allegations are unfounded and we have not taken them into account when assessing the applicant’s risk.

The age of the person at the time the offences or matters occurred: s 30(1)(c); and

The person’s present age: s 30(1)(g)

The applicant was 19 years of age when he assaulted his First Partner’s mother. He was 27 years of age when he was implicated in the death of Child A and when he assaulted his First Partner. He was almost 40 when he was convicted of contravening an ADVO involving his Third Partner, and between the ages of 40 and 43 when he was convicted of further breaches of ADVOs involving his Third and Fourth Partners. He was 45 years of age when he assaulted his wife in 2022.
The applicant is currently 47 years of age.

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: s 30(1)(d);

The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(1)(e); and

Whether the person knew, or could reasonably have known, that the victim was a child: s 30(1)(f)

With respect to the Trigger Offence, the applicant knew the child was 3 years old, and understood he was the biological father. At the age of 3, the child was significantly vulnerable to harm. When left in the care of the applicant, the child was completely dependent upon the applicant for his safety and welfare. The applicant knew that the child was also physically vulnerable, having been diagnosed with macrocephaly (a larger-sized head), and so he wore a head guard as protective equipment when play wrestling.
With respect to the applicant’s history of domestic and family violence, the applicant’s intimate partners were all adults at the time of his offending conduct. Because the assaults and contraventions of AVOs were suffered in the context of domestic arrangements with the applicant, and the children’s welfare and safety were at stake, each of the partners were vulnerable relevant to the applicant.
The applicant’s Third Partner was particularly vulnerable due to her late stage of pregnancy with their third child when he repeatedly breached ADVOs which we acknowledge generally concerned custody and access issues regarding their children.
The applicant had lived with his three children with his First Partner for several years and knew their ages (around 8 and 5 years and an infant aged around 6 months) at the time he assaulted her in July 2004. Likewise, he knew the ages of his children (around 3 and 2 years of age) with his heavily pregnant Third Partner. The applicant knew the age of his Fourth Partner’s child (aged around 6 years of age at the relevant time). The children were all vulnerable because of their age and having regard to their status as children of single parents for varying periods of time in their lives.
It is well recognised that children who experience family violence within their family unit are negatively affected even when it is not directed at them. Any child who witnessed the applicant’s violent and abusive behaviour would likely be at risk of suffering emotional and psychological harm.
It was pointed out in submissions for the respondent that Judge Betts noted in Dennett & Santis [2021] FCCA 1584 at [103]-[104] the following:

“The impact of family violence on children has not always been fully appreciated, and there is always a risk that courts and other well-intentioned professionals take the view that, if the cild was not directly exposed to family violence, or did not otherwise directly witness family violence, that maybe the child has not suffered any harm.
This is a view which is, with respect, overly simplistic. Children experience harm as a result of living in a household with a parent who is fearful of the other parent, and having to transition to that other parent, in circumstances where the victim parent is living in fear The impact on a child of this sort of lifestyle is hard to fathom, and may only become apparent with the fullness of time.”

In giving her oral evidence, Ms Kirk confirmed that children are psychologically affected by the manner in which parents communicate with each other, and they pick up on things not meant to be contentious such as “niggling” comments. Ms Kirk said that in an environment of family violence, it can be quite threatening to victims to be contacted by a perpetrator.
The applicant’s written statements attest to his experience in counselling and supporting vulnerable persons in his many roles. He states that he has studied and understands intergenerational trauma. There is thus no doubt that he would have been aware of the vulnerability of his partners and the children involved.

The seriousness of the person’s criminal history and the conduct of the person since the matters occurred: s 30(1)(h)

The seriousness of the applicant’s criminal history was discussed above in relation to ss 30(1)(a) and 30(1)(b) of the Act.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i)

In Ms Kirk’s opinion, a person is at risk of repeating their behaviour if they have not accepted responsibility, and taking responsibility involves more than a person acknowledging they have broken the law.
It is clear that the applicant has suffered emotional and psychological distress associated with two significant events, the death of Child A and his assault upon his wife in 2022. We acknowledge that the trauma and grief that the applicant has suffered are likely to be protective factors against the applicant repeating any past behaviours.
However, we note as a matter of concern, the applicant’s statements that seek to minimise his conduct regarding Child A. Those statements demonstrate he has limited insight into his conduct and has not accepted responsibility for what occurred. Having regard to his stated aspiration to do social work where assessing risks to children may well form part of his duties, we have some degree of reservation about whether he will recognise and respond appropriately to situations where children require medical attention.
With respect to the assault in August 2022, the applicant’s assertion that he has no recollection of what he did, may be seen as an attempt to absolve himself from responsibility. Further, despite pleading guilty, his oral evidence that he does not trust his wife (suggesting he does not believe her allegations about what he did), could be seen as an attempt to not accept responsibility for his actions. If he repeated that conduct where children were present, the risk of emotional and psychological harm to them would be significant.
In answering questions about taking responsibility for his persistent breaches of ADVOs concerning his Third and Fourth Partners, the applicant defended his actions, saying the text messages demonstrate they involved 2-way conversations. When asked if he thought there was anything wrong with his conduct if there had been no court orders in place, he answered “No, not really”. When asked whether he thought he had been treated unfairly, he answered: “I should have contested”. This is clearly a matter of concern since it demonstrates the applicant has not accepted responsibility. He is therefore at risk of repeating his behaviours.

The Kirk Report

The expert opinion, as expressed in the Kirk Report, that the applicant is “no longer (our emphasis) a threat to any child in his care” does not greatly assist in our evaluation of the applicant’s risk to the safety of children. It is not clear whether Ms Kirk thought that the applicant, at some earlier stage in his life, may have posed a risk to the safety of children. The report does not specify the facts or assumptions of fact relevant to the issue of risk to the safety of children, on which the opinion is based.
Ms Kirk’s report defended the applicant’s involvement regarding Child A by stating “During the death of the child, [the applicant] did not witness the incident that affected the child and could only respond to what he could physically see”,
The report does not acknowledge the Coroner’s critical finding that the applicant abused Child A. Ms Kirk did not know that the child had been taken into care by DOCS. Under cross-examination, Ms Kirk acknowledged that she had only looked at the evidence concerning the death of the Child A in the days prior to the hearing.
When it was put to her that the applicant’s description of the event was not consistent with the Coroner’s finding, she acknowledged that would affect her risk assessment and she would want to know what happened in order to weigh the matter.
Under cross-examination, Ms Kirk said there is now understanding of how the brain works, and there is a difference between the decision-making capacity in a 20 year old compared with a 46 year old. Yet, in this case, we make the observation that the applicant’s conduct when in his early to mid-40s (with respect to the assault in 2022) appears to be similar to his conduct at the age of 19 (assault of his de facto mother in law) and 27 (assault of his First Partner and contravention of ADVO).
We note the report does not make reference to the repeated episodes of domestic violence where children were present, or likely to have been present, yet contains the following generalised statement:

“After every situation that has occurred, [the applicant] has sought help to rectify the situation and attempt as best he is able to ensure he does not behave this way again.”

The repeated episodes of domestic violence with the applicant’s various partners and repeated breaches of AVOs contradict this stated reasoning.
Ms Kirk’s statement that the applicant “gives back to his community continually” has relevance with respect to the issue of public interest, but it does not address the fundamental issue of risk.
Reasoning that the applicant has lost a great deal, which exacerbates his trauma and grief, and therefore he should not today be considered a risk to children, is flawed. The legislation is protective towards children, and not punitive towards applicants.

Applicant’s mental health and relationship with alcohol

The available psychiatric and psychological reports identify the applicant’s relationship with alcohol, loss of control and anger management issues, and his PTSD diagnosis.
More than two years before the assault offence in 2022, a Clinical Psychologist (GO) treated the applicant for management of his emotions, anxiety and irritability. The evidence was inconsistent as to whether alcohol was a factor in connection with the allegations that the applicant had posted a photograph of his wife’s naked breasts on Facebook in 2020.
After the 2022 assault, his GP diagnosed PTSD and Alcohol Misuse. He treated the applicant with an antidepressant and referred him for psychotherapy as well as Drug and Alcohol counselling.
A Consultant Psychiatrist (HR) diagnosed him with alcohol dependence, PTSD and Major Depressive Disorder, and treated him with Fluoxetine (antidepressant) and Naltrexone (anti-craving medication). There is no evidence in the material before us that confirms whether the applicant is still reliant upon taking medication to control his cravings for alcohol.
A Consultant Forensic Psychiatrist (Dr ZZ) diagnosed the applicant with Major Depressive Disorder and PTSD, and concluded that he met the criteria for Alcohol Use Disorder.
MC’s letter of support of 6 September 2023 puts the applicant’s problematic use of alcohol in the past yet acknowledges that he manages his cravings “appropriately”. MC’s opinion that the applicant does not meet the criteria for Alcohol Use Disorder is at odds with the opinion of two psychiatrists and the applicant’s GP.
Community mental health reports noted the applicant to be unpredictable, impulsive and violent, and the overall clinical impression was that the applicant suffered “aggression and anger when under the influence of alcohol leading to impulsivity and disinhibition in relationships”.
MC’s notes referred to “predisposing factors” being the sexual abuse of the applicant as a child and cultural confusion. The notes referred to “perpetuating factors”, being “unresolved trauma” and “unresolved anger”. The applicant’s written evidence was that he was re-traumatised when receiving training on the Stolen Generations. Reports from the community mental health service refer to the applicant’s apparent attempt to hang himself two days after the assault offence in 2022. We see this as an indication of the intensity of his mental health crisis at that time.
Many of the reports do not precisely identify the period or periods in the applicant’s life in which alcohol may have been prevalent or the cause of his offending behaviours. MC’s notes recorded the applicant’s use of alcohol “for years” and consistently referred to relapse prevention strategies. According to a community mental health report dated 7 October 2022, the applicant recognised the importance of not having alcohol nearby and the influence it had had on events in his life “over the years”. A DCS report recorded the applicant’s acknowledgment that he had had an alcohol problem “in the past”. Overall, we are left with the impression that the applicant’s problem with alcohol misuse was not confined to the period of months leading to the 2022 assault.
Against that, the applicant’s oral evidence was that he does not have a problem with alcohol. His explanation for the 2022 assault was that he had PTSD and was suffering burnout and vicarious trauma such that he was drinking heavily as a form of self-medication leading to the events on 27 August 2022.
When questioned about drinking for several days in a week in April 2023, the applicant responded, somewhat dismissively, that it was “not illegal”, and again stated “I don’t have a drinking problem”. When it was suggested to him that it was possible he might catch up with mates and have a drink in the next two months, the applicant said that would not happen because he was back playing footy, surfing, seeing his nieces and doing “cultural stuff”.
In his written statement, the applicant said that he has gone to Alcoholics Anonymous meetings, stopped drinking and gone to counselling. There is very little evidence before the Tribunal that the applicant has engaged in counselling to reflect specifically on the contribution that his conduct may have had on the dynamics of his relationships over the years which resulted in his convictions for assault and contravention of ADVOs. Moreover, his oral evidence was that he no longer feels the need to see MC other than on an ‘as needs’ basis.
Ms Kirk agreed that it was important for the applicant to have trust in order to receive support. His oral evidence was that he does not trust anyone, including his wife and his referees. He did acknowledge that he trusts MC and an Aboriginal elder with whom he practises mindfulness while “on country”.
It is clear that the applicant believes in the value of engaging in “men’s business” and uses a cultural model, on his own, for spiritual healing. Under cross-examination he repeatedly stated that he was “grounded”, through his surfing, swimming and diving. When asked whether he could be confident he would not be triggered if he worked in an organisation that was flawed, the applicant became visibly irritated, answering: “you didn’t hear me”. He again said that he was “grounded” and was not culturally conflicted.
We note that the applicant’s belief that he was “grounded” (as stated in his submission to the Children’s Guardian on 21 April 2020) did not prevent the assault upon his wife in August 2022.
There is no objective independent evidence before the Tribunal, for example by way of reference from the Aboriginal Elder with whom the applicant goes “on country”, to support the applicant’s assertion that he is “grounded”.
Other than going “on country” and seeing MC on an “as needs” basis, there is no evidence that the applicant has put mitigation strategies in place to ensure his conduct is not repeated.
In all the circumstances, we are not satisfied that the applicant has accepted responsibility for his conduct because he fails to show insight into the effect of his conduct upon others. He does not impress us as a person who genuinely believes in, and is committed to, ongoing reflection of his behaviours to bring about lasting change. He continues to be defensive, and deflect blame onto other parties. He presents as someone who will be resistant to ongoing psychological counselling unless he is required to demonstrate rehabilitation for the purpose of impending court proceedings.
On the evidence, we cannot be satisfied at this point in time, that he will not repeat his offending conduct.

Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1)

The Tribunal understands that, apart from the ADVO for the protection of the applicant’s wife expiring on 20 November 2024, there are no other orders of a court or tribunal in force in relation to the applicant to be taken into consideration.

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

The key arguments made on behalf of the applicant are set out earlier in these Reasons.
It was also submitted on behalf of the applicant that his risk should be assessed by reference to the conduct of previous applicants, such as the applicant in Children’s Guardian v BQJ [2016] NSWSC 869 (‘BQJ’). In that case, the Tribunal gave clearance to an applicant who had been found guilty of manslaughter of a 5 year old boy. The Tribunal took into account that the applicant was himself a juvenile (aged 14 years) when he committed the crime, the offence had occurred more than 30 years ago, the applicant’s total criminal record demonstrated exemplary conduct (apart from matters considered by the Supreme Court to be minor), and it was considered highly unlikely that the applicant would repeat the original offence.
The Tribunal determines each case on its merits. We distinguish BQJ from the case before us, where the applicant was not a juvenile, but a man of 27, when the incidents occurred in 2004. His criminal record in the period from 2017 to 2022 does not demonstrate exemplary conduct, and he was aged 45 at the time that he assaulted his wife in 2022. Ms Kirk, in giving her oral evidence, stated that there is now understanding of how the brain works, and there is a difference between the decision-making capacity in a 20 year old compared with a 46 year old. Even allowing for the vicarious trauma he was suffering at the time that he assaulted his wife, the applicant’s behaviour involved aggression that was not dissimilar from the conduct he exhibited as a young man aged 19 and subsequently, as a man aged 27.

The applicant submitted a number of references in support of his application from co-workers and friends.
The reference from LG who supervised the applicant in the delivery of training in the Certificate III in Community Services attests to the applicant’s ability to engage with students effectively and advise them about their personal circumstances. In particular, the applicant was observed, by his words and body language, to make single mothers who had been victims of domestic violence feel safe. No complaints were received about the applicant’s conduct and LG did not see the applicant behave inappropriately. LG’s knowledge of the applicant’s criminal history appears to be limited and at a superficial level, as reflected in his statement that the applicant was “upfront with his domestic situation and the court matters”. A small amount of weight has been given to this professional reference in the applicant’s favour.
Another reference, provided by one of the students taught by the applicant, attested to his effectiveness as a teacher and his volunteer life-saving efforts. NM has known the applicant for around 24 years and said she did not see him behave in any way that was inappropriate or that suggested he would be unsafe to be around children. This reference makes no mention of the applicant’s criminal history and is afforded only a very small amount of weight.
A statement of support dated 26 September 2023 was provided by NC who first met the applicant about 15 years ago and worked with him in 2010 for an Aboriginal youth association, providing youth programs to the community. In a further statement dated 7 February 2024, NC said that he had been shown a copy of the applicant’s criminal history.
The applicant lived with NC and his two children who were under 18 at the time, from around January 2015 to early 2017. NC attested to the applicant’s popularity with the children. He was observed to be caring and responsible, taking children to the community centre and supporting them in their homework activities. NC and the applicant both worked as volunteers at a local surfing program during the school holidays and the applicant was observed to engage well with the children. NC stated that he never heard any complaint about the applicant’s conduct with children.
NC attested to the applicant’s delivery of seminars/programs on Aboriginal cultural awareness to adults, which included topics such as racism and the history of oppression of Aboriginal people. In his opinion, the applicant delivered these programs in a way that was inoffensive despite their difficult and controversial subject matter.
NC also attended the hearing to give evidence and be cross-examined. With respect to the death of Child A, he said that the applicant had told him there had been a head injury accident and that he didn’t do it. Otherwise, NC acknowledged he had not read the Coroner’s report. When it was put to him that the Coroner had found the applicant abused the child, NC conceded that he found it “pretty unnerving” and that he would have wanted to know. This information affected his opinion of the applicant. On balance, we have given a small amount of weight to NC’s evidence in the applicant’s favour.
EW provided a statement dated 7 September 2024, attesting to the applicant’s support given to four of her children engaged in the Aboriginal youth association programs. In particular, EW attested to the applicant mentoring them in “men’s business” as part of their Aboriginal culture.
EW attended to give evidence and be cross-examined. EW stated that her children loved the applicant and she trusted him. EW conceded that she did not know the full detail surrounding the death of Child A. She did not know that the child had been taken into care and did not know the Coroner’s finding. Her reaction to this information was one of shock, and she said that she would have liked to have known. EW maintained her view that the applicant was gentle, kind and professional but conceded that her children were never alone with him, and there were always other Aboriginal gentlemen present in the “men’s business” programs. On balance, we have given a small amount of weight to EW’s evidence.
A letter of support dated 25 September 2023 was provided by EM who has known the applicant for 22 years. EM attested to the applicant’s love for his family and community, as evidenced by his community-based work. The letter of support alludes to the applicant’s more recent conviction for assault whilst he was “under the influence of alcohol”, but makes no other reference to the applicant’s criminal record. EM was called to attend and give evidence, but declined to attend. On balance, we have given the same amount of weight to this reference as we have given to the evidence of LG.
The applicant’s wife attended to give evidence and be cross-examined. Her testimony was overwhelmingly supportive to the applicant. She regarded the assault upon her as an isolated incident and said that the applicant in that particular circumstance was not the person she knew. Her evidence was that the applicant is now more patient whereas, previously, he had been argumentative. The credibility of her evidence is diminished because of the nature of her relationship with the applicant and a concern that she has a vested interest in the determination of this application impacting upon his earning capacity. We have accordingly heavily discounted the weight to be given to her evidence as a result.

Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1)

The Tribunal understands there is no other relevant information in relation to the applicant obtained in accordance with s 36A of the Act (exchange of information to bodies in other jurisdictions) to be taken into consideration.

Any other matters that the Children’s Guardian considers necessary: s 30(1)(k)

The Refusal Decision set out the matters that the Children’s Guardian took into account as at 18 May 2023, to be satisfied that the applicant poses a risk to the safety of children.
Written and oral submissions on behalf of the Children’s Guardian in these proceedings also addressed the matters which the Children’s Guardian considers necessary.
In the Children’s Guardian’s submission, the applicant’s history of domestic violence spans his entire criminal history from 1996 to 2022. This raises serious concerns about his risk to the safety of children. Further, if repeated, the behaviours would pose a significant risk of physical, psychological and/or emotional harm to any child exposed to those behaviours.

Overall evaluation of risk

In determining whether the applicant poses a risk to the safety of children, we have considered the seriousness of his relevant criminal record and conduct, and the period of time that has elapsed.
We do not accept the submission that, putting the breaches of ADVOs aside, the applicant’s pattern of domestic and family violence comprises an assault in 1996, an assault 8 years later and an assault almost 20 years later, with text message incidents which do not rise to the same level of violence.
In our view, the offences and conduct of the applicant that caused a refusal of his clearance application fall roughly into two time periods.
First, the events surrounding the death of Child A occurred almost 20 years ago and the applicant is clearly deeply saddened by the death of his son and said he would do things differently today. The applicant’s conviction for assault of his First Partner also occurred almost 20 years ago and therefore the elapsed time is relevant subject to being satisfied that the applicant has insight into his conduct and can demonstrate his rehabilitation.
There is then a period of time between 2005 and 2017 during which the applicant’s criminal record does not cause concern for the purpose of assessing his risk.
However, more recently, in the period from late 2017 to late 2022, the applicant’s criminal record demonstrates persistent volatility and aggression, with repeated instances of domestic and family violence towards three intimate partners.
The applicant’s last domestic violence offence, being the assault of his wife in August 2022, occurred less than 18 months before these proceedings were heard, with a Community Corrections Order still current at the time of hearing and an ADVO against the applicant expiring on 20 November 2024.
The applicant’s involvement in the events surrounding the death of Child A and his conviction under s 228 of the Care Act are very serious matters. The applicant’s many statements, some quite recent, seeking to minimise his conduct cause concern. They demonstrate he has not fully reflected upon the events and has not accepted responsibility for them. We conclude that he has limited insight into his conduct. These matters outweigh the amount of time that has elapsed.
Kicking in the car windscreen in the presence of his children in 2004 is seriously aggressive behaviour, demonstrating loss of control and anger. The applicant has not fully addressed the assault of his wife in the home and we conclude that he does not have sufficient insight into the effect of his conduct and the harm it could have upon children. These matters also outweigh the period of time that has elapsed.
The applicant’s persistent breaches of ADVOs are equally serious matters and relatively recent. His behaviours concerning his Third and Fourth Partners were obsessive and intimidating. His statements that purport to acknowledge breaches as technical matters whilst continuing to blame his ex-partners demonstrate a failure to accept responsibility, lack of insight into his behaviours and a failure to understand the impact of coercive control upon a victim. On the evidence before us, there has been no meaningful reflection except an acknowledgment that he had breached ADVOs. Pleading guilty is not the same as reflecting upon behaviour and taking responsibility for error. Ms Kirk agreed that acknowledging breaking the law is not the same as taking responsibility.
The applicant’s assault upon his wife in August 2022 is very recent and was a serious criminal offence. We do not doubt his remorse over the incident. However, we are not satisfied that he has accepted responsibility for his actions despite pleading guilty. Further, there has not been a sufficiently long period of time since the assault upon his wife, to satisfy the Tribunal that the applicant has reflected upon his behaviour and put strategies in place to ensure he will not repeat the conduct.
We do not doubt the applicant’s sincerity in his desire to abstain from alcohol, regulate his emotions and refrain from violent behaviours. His emphatic oral evidence is that he does not have a drinking problem. However, this is outweighed by the mental health assessments, and psychological and psychiatric reports which focus on his use of alcohol and dependency for which he has been medicated.
We are not satisfied that the applicant has mobilised his intentions to rehabilitate, into a sustainable plan. He has weaned himself off regular counselling, moving towards self-regulation. We are not satisfied that he has put sufficient protective strategies in place to effectively mitigate against the possibility of repeat behavioural lapses.
In our view, the risk of the applicant suffering vicarious trauma again if he has not rehabilitated, or rehabilitated fully, is a matter of concern. The applicant’s oral evidence is that he simply would not be triggered because he is “grounded”. Apart from the applicant’s subjective statements that he is “grounded” by going “on country” with an Elder member of the Aboriginal community, there is no objective evidence before us of that strategy or its effectiveness to allay our concern.

Matters in favour of the applicant

In deciding this case, there are a number of compelling factors that favour granting clearance to the applicant.
Apart from having his conduct when caring for Child A impugned by the Coroner and being convicted for neglect of the child under s 228 of the Care Act, the applicant has not been charged with any other child-related offences. We qualify this by acknowledging that, at various times when the applicant has lost control and engaged in aggressive behaviour, children have been present or were likely to have been present, and were thus exposed to domestic violence.
We acknowledge the applicant’s admirable efforts over two decades to improve himself and increase his potential to valuably contribute to society. His ongoing tertiary education and vocational training record is very impressive. He is eminently qualified from a technical perspective and his work experience record, to do social work. From that perspective, the obvious public interest benefit for the community is not to be cavilled with.
The applicant’s positive contributions to community, particularly the Aboriginal community, throughout both his career and volunteering efforts, are commendable, as a number of lay witnesses have observed. It includes many instances of working with and supporting children over the years.
On his own evidence, and the testimony of others, the applicant has empowered individuals, families and communities to be self-sufficient and implement strategies to overcome problems such as mental health, grief, loss and addiction. He is to be applauded for his contribution to the mental well-being of the many people he has counselled over the years.

Conclusion

In deciding the application, we recognise the hardship for the applicant if he is not granted clearance to explore his social work endeavours at this point in time. However, the protective jurisdiction of the legislation towards children must prevail.
The matters in favour of the applicant are not insignificant. However, in the overall balancing of risk, they do not outweigh our concerns that the applicant has not demonstrated genuine insight into his offending and has not put in place effective mitigation strategies to avoid repeating his offending conduct. It is now time to put the ‘oxygen mask’ on himself.
In all the circumstances, we are not satisfied that the applicant has accepted responsibility for his conduct because he fails to show insight into the effect of his conduct upon others. He continues to be defensive, and deflect blame onto other parties. We therefore cannot be satisfied, on the evidence and at this point in time, that he will not repeat his offending conduct.
To obtain clearance, the applicant needs to demonstrate a period of sufficient duration where he has no further charges or convictions against him such that we can be confident he has rehabilitated and left behind his previous behaviours and conduct.
On balance, the Tribunal is satisfied on the evidence before it that the applicant poses a real and appreciable risk to the safety of children, and should not be granted a clearance at this point in time.
In light of the conclusion reached, it is not necessary to consider the reasonable person and public interest tests in ss 30(1A)(a) and 30(1A)(b) of the Act.

Orders

The decision of the Children’s Guardian dated 18 May 2023 to refuse to grant the applicant a working with children check clearance is affirmed.

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SCHEDULE 1 (88595, pdf)

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 July 2024

Medium Neutral Citation:	FWJ v Children’s Guardian [2024] NSWCATAD 184
Hearing dates:	8 and 9 February 2024
Date of orders:	05 July 2024
Decision date:	05 July 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Starke, Senior Member J Herberte, General Member
Decision:	The decision of the Children’s Guardian dated 18 May 2023 to refuse to grant the applicant a working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — Risk assessment triggered by Schedule 1 matter where the applicant was convicted in 2009 of an offence under s 228 of the Children and Young Persons (Care and Protection) Act 1998 (Neglect of child) after being implicated in the death of a 3 year old child in 2004 — Risk assessment also conducted due to seriousness of applicant’s repeated domestic violence offences against several intimate partners including incidents where children were exposed to the applicant’s violence and repeated breaches of Apprehended Domestic Violence Orders — Applicant recently convicted in 2022 for further domestic violence offence of assault occasioning actual bodily harm under s 59(1) of Crimes Act 1900 and sentenced to a Community Correction Order for 18 months expiring approximately 3 months beyond the date of hearing — Whether the applicant poses a risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) 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 (Domestic and Personal Violence) Act 2007 Crimes Act 1900 (NSW)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BFX v Children’s Guardian [2014] NSWCATAD 115 BHY v Children’s Guardian [2015] NSWCATAD 91 BKE v Office of Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw (1938) 60 CLR 336 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v BQJ [2016] NSWSC 869 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Commissioner for Children and Young People v IK [2005] NSWSC 1136 CRG v Children’s Guardian [2017] NSWCATAD 295 CTE v Children’s Guardian [2018] NSWCATAD 28 CXZ v Children’s Guardian [2020] NSWCA 338 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 DAI v Children’s Guardian [2017] NSWCATAD 308 Dennett & Santis [2021] FCCA 1584 Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 DYH v Public Guardian [2021] NSWCATAD 136 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 McDonald v Guardianship and Administration Board [1993] VR 521 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 Smith v Commissioner of Police [2014] NSWCATAD 184 Tilley v Children’s Guardian [2017] NSWCA 174 VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 YG & GG v Minister for Community Services [2002] NSWCA 247 ZZ v Secretary, Department of Justice [2013] VSC 267
Texts Cited:	None cited
Category:	Principal judgment
Parties:	FWJ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Lin (Applicant) G Bromwich, Solicitor Advocate, Crown Solicitor (Respondent) Solicitors: Fidelis Lawyers (Applicant) Crown Solicitor (Respondent)
File Number(s):	2023/00198256
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings is prohibited. This order was made on 6 July 2023 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.